Exhibit 10.1
Published CUSIP Number: ▇▇▇▇▇▇▇▇▇
AMENDMENT NO. 2
DATED AS OF MAY 7, 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
DRESDNER KLEINWORT ▇▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC,
AS CO-LEAD ARRANGERS AND CO-BOOK MANAGERS
FOR INCREASE TO REVOLVING COMMITMENTS AND INCREMENTAL TRANCHE A TERM LOAN
AND
CREDIT SUISSE FIRST BOSTON,
ACTING THROUGH ITS CAYMAN ISLANDS BRANCH,
AS LEAD ARRANGER AND BOOK MANAGER FOR TRANCHE D TERM LOAN
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AMENDMENT NO. 2
THIS AMENDMENT NO. 2, dated as of May 7, 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
but not otherwise defined shall have the meanings provided in the Credit
Agreement (as defined below).
WITNESSETH
WHEREAS, a USD1.5 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, the Borrowers have requested certain modifications to the Credit
Agreement, including a request for the Lenders to increase the Aggregate
Revolving Committed Amount, to make available to the Borrowers an incremental
Tranche A term loan, and to make available to the Borrowers an additional
Tranche D term loan facility, the proceeds of which will be applied by the
Borrowers as a voluntary prepayment of the Tranche C Term Loan on the date of
such advances, together with any interest accrued and any amounts due pursuant
to Section 3.05 of the Credit Agreement, as amended hereby, with respect to the
portion of the Tranche C Term Loan so prepaid;
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):
(a) The following definitions are amended and modified as follows:
(i) The definition of "Applicable Percentage" will be amended
by adding a new sentence at the end thereof as follows:
With respect to the Tranche D Term Loan, the Applicable
Percentage shall be as set forth in the Tranche D Term Loan
Joinder Agreement.
(ii) in the definition of "Credit Documents" the reference to
"the Tranche C Term Loan Joinder Agreement" is amended to read "the Lender
Joinder Agreements".
(iii) in the definition of "Interest Payment Date", in clauses
(a) and (c) thereof, the references to "the Tranche A Term Loan, the Tranche B
Term Loan and the Tranche C Term Loan" are, in each case, amended to read "the
Tranche A Term Loan, the Tranche B Term Loan, the Tranche C Term Loan and the
Tranche D Term Loan".
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(iv) in the definition of "Outstanding Amount", a new clause (f)
is added immediately prior to the period at the end thereof to read as follows:
and (f) 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
(b) The following definitions are amended in their entirety to read
as follows:
"Lender" means each of the persons identified as a "Lender" on
the signature pages hereto or in any Lender Joinder Agreement (and, as
appropriate, includes the L/C Issuer and the Swing Line Lender), together with
their respective successors and assigns.
"Term Loan" means the Tranche A 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 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 B Term
Notes, the Tranche C Term Notes and the Tranche D Term Notes.
"Tranche A Term Lenders" means, prior to funding of the
Incremental Tranche A Term Loan, Lenders holding a portion of the Initial
Tranche A Term Loan and Lenders with Incremental Tranche A Term Loan
Commitments, and after funding of the Incremental Tranche A Term Loan, Lenders
holding a portion of the Tranche A Term Loan, together with their successors and
permitted assigns.
"Tranche A Term Loan" means, collectively, the Initial Tranche A
Term Loan and the Incremental Tranche A Term Loan.
"Tranche A Term Loan Commitment" means the Initial Tranche A Term
Loan Commitment and the Incremental Tranche A Term Loan Commitment.
"Tranche A Term Loan Committed Amount" means the Initial Tranche
A Term Loan Committed Amount and the Incremental Tranche A Term Loan Committed
Amount.
(c) The following definitions are added to read as follows:
"Incremental Tranche A Term Lenders" means, prior to funding of
the Incremental Tranche A Term Loan, Lenders with Incremental Tranche A Term
Loan Commitments, and after funding of the Incremental Tranche A Term Loan,
Lenders holding a portion of the Incremental Tranche A Term Loan, together with
their successors and permitted assigns.
"Incremental Tranche A Term Loan" shall have the meaning provided
in Section 2.01(f).
"Incremental Tranche A Term Loan Commitment" means the commitment
of each Incremental Tranche A Term Lender to make its portion of the Incremental
Tranche A Term Loan hereunder as set forth in the Incremental Tranche A Term
Loan Joinder Agreement.
"Incremental Tranche A Term Loan Committed Amount" means, with
respect to each Incremental Tranche A Term Lender, the amount of such Lender's
Incremental Tranche A Term Loan Commitment. The initial Incremental Tranche A
Term Loan Committed Amounts will be as set forth in the Incremental Tranche A
Term Loan Joinder Agreement.
"Incremental Tranche A Term Loan Joinder Agreement" means the
Incremental Tranche A Term Loan Joinder Agreement providing for the
establishment of the Incremental Tranche A Term Loan, substantially in the form
of Exhibit I.
"Initial Tranche A Term Lenders" means, prior to funding of the
Initial Tranche A Term Loan, Lenders with Initial Tranche A Term Loan
Commitments, and after funding of the Initial Tranche A Term Loan, Lenders
holding a portion of the Initial Tranche A Term Loan, together with their
successors and permitted assigns.
"Initial Tranche A Term Loan" shall have the meaning provided in
Section 2.01(f).
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"Initial Tranche A Term Loan Commitment" means the commitment of
each Initial Tranche A Term Lender to make its portion of the Initial Tranche A
Term Loan hereunder as set forth in Section 2.01(f).
"Initial Tranche A Term Loan Committed Amount" means, with
respect to each Initial Tranche A Term Lender, the amount of such Lender's
Initial Tranche A Term Loan Commitment. The Initial Tranche A Term Loan
Committed Amounts as of the Closing Date will be as set forth on Schedule 2.01.
"Lender Joinder Agreements" means the Revolving Loan Joinder
Agreement, the Incremental Tranche A Term Loan Joinder Agreement, the Tranche C
Term Loan Joinder Agreement, and the Tranche D Term Loan Joinder Agreement.
"Required Tranche D Term Lenders" means, as of any date of
determination, Lenders holding in the aggregate more than 50% of the Tranche D
Term Loan; provided that the portion of the Tranche D Term Loan held or deemed
held by any Defaulting Lender shall be excluded for purposes of making a
determination of Required Tranche D Term Lenders.
"Revolving Loan Joinder Agreement" means the Revolving Loan
Joinder Agreement, substantially in the form of Exhibit K.
"Second Amendment Closing Date" means May 7, 2004.
"Tranche D Term Lenders" means, prior to funding of the Tranche D
Term Loan, Lenders with Tranche D Term Loan Commitments, and after funding of
the Tranche D Term Loan, Lenders holding a portion of the Tranche D Term Loan,
together with their successors and permitted assigns.
"Tranche D Term Loan" shall have the meaning provided in Section
2.01(i).
"Tranche D Term Loan Commitment" means, with respect to each
Tranche D Term Lender, the commitment of such Tranche D Term Lender to make its
portion of the Tranche D Term Loan hereunder as set forth in the Tranche D Term
Loan Joinder Agreement; provided that, at any time after funding of the Tranche
D Term Loan, determinations of "Required Lenders" and "Required Tranche D Term
Lenders" shall be based on the outstanding principal balance of the Tranche D
Term Loan.
"Tranche D Term Loan Commitment Percentage" means, for each
Tranche D 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
D Term Loan, such Tranche D Term Lender's Tranche D Term Loan Committed Amount,
and, after funding of the Tranche D Term Loan, the principal amount of such
Tranche D Term Lender's portion of the Tranche D Term Loan and the denominator
of which is, prior to funding of the Tranche D Term Loan, the aggregate
principal amount of the Tranche D Term Loan Commitments, and, after funding of
the Tranche D Term Loan, the aggregate principal amount of the Tranche D Term
Loan. The initial Tranche D Term Loan Commitment Percentages will be as set
forth in the Tranche D Term Loan Joinder Agreement.
"Tranche D Term Loan Committed Amount" means, with respect to
each Tranche D Term Lender, the amount of such Lender's Tranche D Term Loan
Commitment. The initial Tranche D Term Loan Committed Amounts will be as set
forth in the Tranche D Term Loan Joinder Agreement.
"Tranche D Term Loan Joinder Agreement" means the joinder
agreement providing for the establishment of the Tranche D Term Loan,
substantially in the form of Exhibit J.
"Tranche D Term Note" means the promissory notes given to each
Tranche D Term Lender to evidence such Tranche D Term Lender's portion of the
Tranche D Term Loan, as amended, restated, modified, supplemented, extended,
renewed or replaced. A form of Tranche D Term Note is attached as Exhibit C-5.
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 FIVE HUNDRED MILLION DOLLARS (USD500,000,000) (as such amount may be
increased or decreased in accordance with the provisions hereof, the "Aggregate
Revolving Committed Amount") and
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1.3 In Section 2.01(f), the first sentence is amended to read as follows:
On the Closing Date, each of the Initial Tranche A Term Lenders
severally agrees to make its portion of a term loan (in the amount of its
respective Initial Tranche A Term Loan Committed Amount) in a single advance in
Dollars to FMCH in an aggregate principal amount of FIVE HUNDRED MILLION DOLLARS
(USD500,000,000) (the "Initial Tranche A Term Loan"), and on or after the Second
Amendment Closing Date, FMCH may, from time to time, pursuant to the terms
hereof and of the Incremental Tranche A Term Loan Joinder Agreement, agree with
one or more Incremental Tranche A Term Lenders for such Incremental Tranche A
Term Lenders to severally make its portion of an incremental term loan (in the
amount of its respective Incremental Tranche A Term Loan Committed Amount) in a
single advance in Dollars to FMCH in an aggregate principal amount of up to
SEVENTY-FIVE MILLION DOLLARS (USD75,000,000) (the "Incremental Tranche A Term
Loan"); provided that the aggregate principal amount of the Tranche A Term Loan
shall not exceed FIVE HUNDRED SEVENTY-FIVE MILLION DOLLARS (USD575,000,000).
1.4 A new clause (i) is added to the end of Section 2.01 (Commitments) to
read as follows:
(i) Tranche D Term Loan Commitment. On or after the Second
Amendment Closing Date, FMCH and FMCAG may, upon written notice to the
Administrative Agent and the Tranche D Term Lenders pursuant to the terms hereof
and the Tranche D Term Loan Joinder Agreement, agree with one or more Tranche D
Term Lenders for each such Tranche D Term Lender to severally make its portion
of a new term loan (the "Tranche D Term Loan"), provided that:
(i) the Tranche D Term Lenders shall be any combination of existing
Lenders or other commercial banks and financial institutions chosen or arranged
by the Borrower and reasonably acceptable to the Administrative Agent, which
Lenders and such other commercial banks and financial institutions shall join in
this Credit Agreement as Tranche D Term Lenders by Tranche D Term Loan Joinder
Agreement or by other arrangement reasonably acceptable to the Administrative
Agent and FMCAG;
(ii) the aggregate principal amount of the Tranche D Term Loan shall
be not more than TWO HUNDRED FIFTY MILLION DOLLARS (USD250,000,000);
(iii) the Applicable Percentage for the Tranche D Term Loan shall be
subject to mutual agreement of the Tranche D Term Lenders and the Borrowers and
shall be set forth in the Tranche D Term Loan Joinder Agreement;
(iv) the final maturity date for the Tranche D Term Loan shall be
not sooner than the final maturity date for the Tranche C Term Loan (February
21, 2010);
(v) the Administrative Agent shall have received for the benefit of
the Tranche D Term Lenders, such items as may be reasonably requested by the
Administrative Agent and the Tranche D Term Lenders, including opinions of
counsel to the Borrowers and the Guarantors in form and substance satisfactory
to the Administrative Agent and the Tranche D Term Lenders;
(vi) 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 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;
(vii) on the date of the funding of the Tranche D Term Loan, the
conditions to the making of Credit Extensions in Section 5.02 shall be
satisfied; and
(viii) the Borrower shall have paid the reasonable expenses of the
Administrative Agent and reasonable fees and expenses of counsel to the
Administrative Agent, including foreign counsel, in connection with
establishment of the Tranche D Term Loan, to the extent required to be paid
pursuant to the terms thereof.
The Tranche D 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 D Term Loan may not be reborrowed.
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1.5 A new clause (j) is added to the end of Section 2.01 (Commitments) to
read as follows:
(j) Increase in Revolving Commitments. On or after the Second
Amendment Closing Date, FMCH and FMCAG may, from time to time, upon written
notice to the Administrative Agent, increase the Aggregate Revolving Committed
Amount by up to SEVENTY-FIVE MILLION DOLLARS (USD75,000,000) to not more than
FIVE HUNDRED SEVENTY-FIVE MILLION DOLLARS (USD575,000,000); provided that:
(i) the Borrowers shall obtain commitments for the amount of
the increase from any combination of existing Revolving Lenders or other
commercial banks and financial institutions chosen or arranged by the Borrowers
and reasonably acceptable to the Administrative Agent, which other commercial
banks and financial institutions shall join in this Credit Agreement as
Revolving Lenders by Revolving Loan Joinder Agreement or by other arrangement
reasonably acceptable to the Administrative Agent and FMCAG;
(ii) any such increase shall be in a minimum aggregate principal
amount of USD5 million and integral multiples of USD1 million in excess thereof
(or, if the remaining amount by which the Aggregate Revolving Committed Amount
may be increased pursuant to this Section 2.01(j) is less than USD5 million,
such lesser amount);
(iii) if any Revolving Loans are outstanding at the time of any
such increase, the Borrowers will make such payments and adjustments on the
Revolving Loans (including payment of any funding losses owing under Section
3.05) as may be necessary to give effect to the revised commitment percentages
and commitment amounts;
(iv) the Administrative Agent shall have received for the
benefit of the Revolving Lenders, such items as may be reasonably requested by
the Administrative Agent and the Revolving Lenders, including opinions of
counsel to the Borrowers and the Guarantors in form and substance satisfactory
to the Administrative Agent and the Revolving Lenders;
(v) 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 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;
(vi) on the date of the funding of any such increase, the
conditions to the making of Credit Extensions in Section 5.02 shall be
satisfied; and
(vii) the Borrower shall have paid the reasonable expenses of the
Administrative Agent and reasonable fees and expenses of counsel to the
Administrative Agent, including foreign counsel, in connection with
establishment of such increase, to the extent required to be paid pursuant to
the terms thereof.
In connection with any such increase in the Revolving Commitments, Schedule
2.01 will be revised to reflect the modified commitments and commitment
percentages of the Revolving Lenders.
1.6 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 C 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.
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1.7 In Section 2.05 (Repayment of Loans), subsection (d) is amended to
read as follows:
(d) Tranche A Term Loan. The Borrower shall repay to the Lenders the
principal amount of the Initial Tranche A Term Loan in quarterly installments on
the dates set forth below, commencing on September 30, 2004, as follows:
PRINCIPAL PRINCIPAL
AMORTIZATION AMORTIZATION
DATE PAYMENT DATE PAYMENT
------------------ ---------------- ------------------ ------------------
September 30, 2004 USD25,000,000.00 June 30, 2006 USD25,000,000.00
December 31, 2004 USD25,000,000.00 September 30, 2006 USD25,000,000.00
March 31, 2005 USD25,000,000.00 December 31, 2006 USD25,000,000.00
June 30, 2005 USD25,000,000.00 March 31, 2007 USD25,000,000.00
September 30, 2005 USD25,000,000.00 June 30, 2007 USD25,000,000.00
December 31, 2005 USD25,000,000.00 September 30, 2007 USD25,000,000.00
Outstanding Amount
of Initial Tranche
March 31, 2006 USD25,000,000.00 October 31, 2007 A Term Loan
------------------
Total: USD500,000,000.00
==================
The Borrower shall repay to the Lenders the principal amount of the
Incremental Tranche A Term Loan in quarterly installments as provided in the
Incremental Tranche A Term Loan Joinder Agreement.
1.8 A new subsection (g) is added at the end of Section 2.05 (Repayment of
Loans), to read as follows:
(g) Tranche D Term Loan. Subject to Section 2.06(b)(vii), the
Borrowers shall repay to the Lenders the principal amount of the Tranche D Term
Loan in quarterly installments as provided in the Tranche D Term Loan Joinder
Agreement.
1.9 A new subsection (vii) is added at the end of Section 2.06(b)
(Mandatory Prepayments), to read as follows:
(vii) Tranche D Term Loan. The Tranche D Term Loan will be prepaid in
full on October 31, 2007, if the USD450 million 7.875% Trust Preferred
Securities due February 1, 2008 and the DM300 million 7.375% Trust Preferred
Securities due February 1, 2008 are not repaid (with the consent of the Required
Lenders hereunder), or refinanced or the maturity date thereof extended by
October 1, 2007, in either case, to a date that is at least seven and one-half
years after the Closing Date.
1.10 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) until the Tranche C Term Loan has
been paid in full, any voluntary prepayment on the Term Loans shall be applied
pro rata to the Initial Tranche A Term Loan and the Tranche C Term Loan, except
for any voluntary prepayment on the Term Loans made from the proceeds of the
advance of the Incremental Tranche A Term Loan, the Tranche D Term Loan or
otherwise (including, without limitation, any Revolving Loans) contemporaneously
therewith which shall be applied first to the payment of the Tranche C Term
Loan, (B) following repayment in full of the Tranche C Term Loan, any voluntary
prepayment on the Term Loans shall be applied pro rata to the Tranche A Term
Loan and the Tranche D Term Loan, (C) prepayments on the Tranche A Term Loan
shall be applied pro rata to remaining principal amortization installments
thereunder, (D) prepayments on the Tranche C Term Loan shall be applied to
remaining principal amortization installments in inverse order of maturity and
(E) 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.
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1.11 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 pro rata to the Initial Tranche A
Term Loan and the Tranche C Term Loan; provided that, following the repayment in
full of the Tranche C Term Loan, mandatory prepayments on the Term Loans shall
be applied pro rata to the Tranche A Term Loan and the Tranche D Term Loan.
Prepayments on the Tranche A Term Loan shall be applied pro rata to remaining
principal amortization installments thereunder and prepayments on the Tranche C
Term Loan or the Tranche D Term Loan shall, in each case, be applied to
remaining principal amortization installments thereunder in inverse order of
maturity.
1.12 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 B
Term Note for each Tranche B Term Lender that so requests, (iv) a Tranche C Term
Note for each Tranche C Term Lender that so requests and (v) 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.
1.13 In Section 2.14 (Payments Generally), the next-to-last sentence in
subsection (a) is amended to renumber clause "(v)" as "(vi)" and to add a new
clause (v) to read as follows:
(v) with respect to such payments on the Tranche D Term Loan, its
Tranche D Term Loan Commitment Percentage thereof, and
1.14 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
maturity date of the Tranche D Term Loan,
1.15 In Section 11.01 (Amendments), subsections "(f)", "(g)" and "(h)" of
are renumbered as subsections "(g)", "(h)" and "(i)" respectively, and a new
clause (f) is added to read as follows:
(f) unless also signed by the Required Tranche D Term Lenders, no such
amendment, waiver or consent shall:
(i) amend or waive any mandatory prepayment on the Tranche D Term
Loan Obligations under Section 2.06(b) or the manner of application thereof to
the Tranche D Term Loan Obligations under Section 2.06(c), or
(ii) amend or waive the provisions of this Section 11.01(f) or the
definition of "Required Tranche D Term Lenders ";
1.16 Schedule 2.01 (Commitments and Commitment Percentages) will be amended
(i) as of the date of the Revolving Loan Joinder Agreement, to set forth the
Revolving Committed Amounts and Revolving Commitment Percentages in effect
immediately after the effectiveness thereof, (ii) as of the date of the
Incremental Tranche A Term Loan Joinder Agreement to set forth the Incremental
Tranche A Term Loan Commitments according to the terms set out in the
Incremental Tranche A Term Loan Joinder Agreement and the Tranche A Term Loan
Commitment Percentages in effect immediately after the effectiveness thereof and
(iii) as of the date of the Tranche D Term Loan Joinder Agreement to set forth
the Tranche D Term Loan Commitments and initial Tranche D Term Loan Commitment
Percentages according to the terms set out in the Tranche D Term Loan Joinder
Agreement.
1.17 Exhibit A-1 (Form of Loan Notice) is replaced in its entirety with
Exhibit A-1 attached hereto.
1.18 A new Exhibit C-5 (Form of Tranche D Term Note) is added in the form
of Exhibit C-5 attached hereto.
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1.19 A new Exhibit I (Form of Incremental Tranche A Term Loan Joinder
Agreement) is added in the form of Exhibit I attached hereto.
1.20 A new Exhibit J (Form of Tranche D Term Loan Joinder Agreement) is
added in the form of Exhibit J attached hereto.
1.21 A new Exhibit K (Form of Revolving Loan Joinder Agreement) is added in
the form of Exhibit K attached hereto.
SECTION 2 CONSENT.
(a) 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 C Term Loan on the date the
Tranche D Term Loan is advanced pursuant to the terms of the Credit Agreement as
amended hereby.
(b) Notwithstanding anything to the contrary in Section 7.12 and Section
7.13, it is hereby understood and agreed that any Subsidiary of FMCH that is a
Material Foreign Subsidiary shall not be required to become a Guarantor pursuant
to the provisions of Section 7.12, nor shall more than 65% of its issued and
outstanding Capital Stock with ordinary voting power be required to be pledged
pursuant to Section 7.13.
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 Required Revolving Lenders;
(d) the consent of the Required Tranche A Term Lenders;
(e) opinions of counsel to the Borrowers and the Guarantors; and
(f) payment of the reasonable fees and expenses of counsel to the
Administrative Agent (including ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC and foreign counsel)
relating to the Credit Agreement and this Amendment.
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 ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, 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
9
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]
10
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/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Financial Officer/
Member of the Management Board
By: /s/ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Member of the Management
Board
FRESENIUS MEDICAL CARE HOLDINGS, INC.,
a New York corporation, as a Borrower
and as a Guarantor
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
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/ DR. ▇▇▇▇▇▇ STOPPER
------------------------------------
Name: Dr. ▇▇▇▇▇▇ Stopper
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇
Title: Managing Director
11
GUARANTORS: NATIONAL MEDICAL CARE, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Treasurer
FRESENIUS MEDICAL CARE DEUTSCHLAND
GmbH, a German corporation
By: /s/ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
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/ DR. ▇▇▇▇▇▇ STOPPER
------------------------------------
Name: Dr. ▇▇▇▇▇▇ 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/ ▇▇▇▇▇▇▇▇ ▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇
Title: Managing Director
12
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,
BIO-MEDICAL APPLICATIONS OF NEW YORK,
INC., a Delaware corporation,
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/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Treasurer
for each of the foregoing
13
GUARANTORS: NMC A, LLC, a Delaware limited liability
company
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Treasurer
FRESENIUS MEDICAL CARE US
BETEILIGUNGSGESELLSCHAFT mbH, a German
limited liability company
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
FRESENIUS MEDICAL CARE
BETEILIGUNGSGESELLSCHAFT mbH, a German
limited liability company
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
14
GUARANTORS: GABRIELE 41 VERMOGENSVERWALTUNG GmbH, a
German limited liability company (which
is to change its name to Fresenius
Medical Care US Zwei
Beteiligungsgesellschaft mbH)
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
15
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A., as
Administrative Agent for and on
behalf of the Lenders
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Officer
16
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 __, 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
[ ] [Initial / Incremental] Tranche A Term Loan
[ ] Tranche D 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:
17
EXHIBIT C-5
[FORM OF]
TRANCHE D 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 D
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 D Term Loan made by the Lender from the
date of such Tranche D 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 D 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 D 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:
18
Exhibit I
INCREMENTAL TRANCHE A TERM LOAN JOINDER AGREEMENT
THIS INCREMENTAL TRANCHE A TERM LOAN JOINDER AGREEMENT (this "Agreement")
dated as of ______________ to the Credit Agreement referenced below is by and
among the Incremental Tranche A Term Lenders identified on the signature pages
hereto (the "Incremental Tranche A Term Lenders"), FRESENIUS MEDICAL CARE
HOLDINGS, INC., a New York corporation ("FMCH"), as Borrower, FRESENIUS MEDICAL
CARE AG, a German corporation ("FMCAG"), together with 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) of the Credit Agreement, FMCH has
requested that the Incremental Tranche A Term Lenders provide a Incremental
Tranche A Term Loan under the Credit Agreement; and
WHEREAS, each Incremental Tranche A Term Lender has agreed to make a
portion of the Incremental Tranche A Term Loan on the terms and conditions set
forth herein and to become a "Incremental Tranche A 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 Incremental Tranche A Term Loan Commitments and
Incremental Tranche A 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 Incremental Tranche A Term Loan
Commitments and the Incremental Tranche A 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 Incremental Tranche A Term Lenders severally agrees to make
its portion of the Incremental Tranche A Term Loan (in the amount of its
respective Incremental Tranche A Term Loan Committed Amount as set forth on
Schedule 2.01 attached hereto) consisting of a single advance to FMCH in Dollars
in the aggregate principal amount of [SEVENTY-FIVE MILLION DOLLARS
(USD75,000,000)]. The Incremental Tranche A 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 Incremental Tranche A Term Loan may
not be reborrowed.
3. The Applicable Percentage for the Incremental Tranche A Term Loan is
___% per annum for Eurocurrency Rate Loans and ___% per annum for Base Rate
Loans.
19
4. FMCH shall repay to the Lenders the principal amount of its portion of
the Incremental Tranche A Term Loan in quarterly installments on the dates set
forth below, commencing on September 30, 2004, as follows:
PRINCIPAL
AMORTIZATION PRINCIPAL
DATE PAYMENT DATE AMORTIZATION PAYMENT
------------------------ ----------------- ---------------------- ----------------------
September 30, 2004 ..... [USD3,750,000.00] June 30, 2006 ........ [USD3,750,000.00]
December 31, 2004 ...... [USD3,750,000.00] September 30, 2006 ... [USD3,750,000.00]
March 31, 2005 ......... [USD3,750,000.00] December 31, 2006 .... [USD3,750,000.00]
June 30, 2005 .......... [USD3,750,000.00] March 31, 2007 ....... [USD3,750,000.00]
September 30, 2005 ..... [USD3,750,000.00] June 30, 2007 ........ [USD3,750,000.00]
December 31, 2005 ...... [USD3,750,000.00] September 30, 2007 ... [USD3,750,000.00]
March 31, 2006 ......... [USD3,750,000.00] October 31, 2007 ..... Outstanding Amount
of Incremental Tranche
A Term Loan
----------------------
Total: [USD75,000,000.00]
======================
5. Each Incremental Tranche A 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
Incremental Tranche A Term Lender shall (i) be a party to the Credit Agreement
and the other Credit Documents, (ii) be a "Incremental Tranche A 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 "Incremental Tranche A Term
Lender" under the Credit Agreement, (iv) shall have the rights and obligations
of a Lender and a Incremental Tranche A 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 Incremental Tranche A 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 Incremental Tranche A Term Loan on the date hereof.
6. FMCH and the Guarantors agrees that, as of the date hereof, each of
the Incremental Tranche A Term Lenders shall (i) be a party to the Credit
Agreement and the other Credit Documents, (ii) be a "Lender" and a "Incremental
Tranche A 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
Incremental Tranche A Term Lender under the Credit Agreement and the other
Credit Documents.
20
7. The address of each Incremental Tranche A 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]
21
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.
BORROWER: FRESENIUS MEDICAL CARE HOLDINGS, INC.,
a New York corporation, as a Borrower
and as a Guarantor
By:
-------------------------------------
Name:
Title:
22
GUARANTORS: FRESENIUS MEDICAL CARE AG, a
German corporation
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
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:
23
GUARANTORS: 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:
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,
BIO-MEDICAL APPLICATIONS OF NEW YORK,
INC., a Delaware corporation,
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
NMC A, LLC, a Delaware limited liability
company
By:
-------------------------------------
Name:
Title:
24
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:
25
INCREMENTAL TERM LENDERS:
----------------------------------------
By:
-------------------------------------
Name:
Title:
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A., as Administrative
Agent
By:
-------------------------------------
Name:
Title:
26
SCHEDULE 2.01
to Incremental Tranche A Term Loan Joinder Agreement
INCREMENTAL TRANCHE A TERM LOAN COMMITMENTS AND COMMITMENT PERCENTAGES
INCREMENTAL TRANCHE A INCREMENTAL TRANCHE INCREMENTAL TRANCHE A TERM
TERM LENDER A TERM LOAN COMMITMENT LOAN COMMITMENT PERCENTAGE
---------------------- --------------------------
Totals: [USD75,000,000.00] 100.000000000%
====================== ==========================
27
SCHEDULE 11.02
to Incremental Tranche A Term Loan Joinder Agreement
INCREMENTAL TRANCHE A TERM LENDER NOTICE ADDRESSES
28
Exhibit J
[FORM OF]
TRANCHE D TERM LOAN JOINDER AGREEMENT
THIS TRANCHE D TERM LOAN JOINDER AGREEMENT (this "Agreement") dated as of
May __, 2004 to the Credit Agreement referenced below is by and among the
Tranche D Term Lenders identified on the signature pages hereto (the "Tranche D
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 D Term Loan Borrower" and, collectively, the "Tranche
D 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(i) of the Credit Agreement, the Tranche D
Term Loan Borrowers have requested that the Tranche D Term Lenders provide a
Tranche D Term Loan under the Credit Agreement; and
WHEREAS, each Tranche D Term Lender has agreed to make a portion of the
Tranche D Term Loan on the terms and conditions set forth herein and to become a
"Tranche D 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 D Term Loan Commitments and Tranche D 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 D Term Loan Commitments and the Tranche D 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 D Term Lenders severally agrees to make its portion
of the Tranche D Term Loan (in the amount of its respective Tranche D Term Loan
Committed Amount as set forth on Schedule 2.01 attached hereto) consisting of a
single advance to FMCH in Dollars in the aggregate principal amount of [TWO
HUNDRED FIFTY MILLION DOLLARS (USD250,000,000)]. The Tranche D 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 D Term Loan
may not be reborrowed.
3. The Applicable Percentage for the Tranche D Term Loan is ___% per annum
for Eurocurrency Rate Loans and ___% per annum for Base Rate Loans.
29
4. Subject to Section 2.06(b)(vii), the Borrowers shall repay to the
Lenders the principal amount of its portion of the Tranche D Term Loan in
quarterly installments on the dates set forth below, commencing on June 30,
2004, as follows:
PRINCIPAL PRINCIPAL
DATE AMORTIZATION PAYMENT DATE AMORTIZATION PAYMENT
-------------------------- -------------------- ------------------------ --------------------
June 30, 2004............. [USD625,000.00] September 30, 2007...... [USD625,000.00]
September 30, 2004........ [USD625,000.00] June 30, 2007........... [USD625,000.00]
December 31, 2004......... [USD625,000.00] December 31, 2007....... [USD625,000.00]
March 31, 2005............ [USD625,000.00] March 31, 2008.......... [USD625,000.00]
June 30, 2005............. [USD625,000.00] June 30, 2008........... [USD625,000.00]
September 30, 2005........ [USD625,000.00] September 30, 2008...... [USD625,000.00]
December 31, 2005......... [USD625,000.00] December 31, 2008....... [USD625,000.00]
March 31, 2006............ [USD625,000.00] March 31, 2009.......... [USD625,000.00]
June 30, 2006............. [USD625,000.00] June 30, 2009........... [USD625,000.00]
September 30, 2006........ [USD625,000.00] September 30, 2009...... [USD625,000.00]
December 31, 2006......... [USD625,000.00] December 31, 2009....... [USD625,000.00]
March 31, 2007............ [USD625,000.00] February 21, 2010....... Outstanding Amount
of Tranche D Term
Loan
--------------------
Total: [USD250,000,000.00]
====================
5. Each Tranche D 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 D Term Lender shall (i) be a party to
the Credit Agreement and the other Credit Documents, (ii) be a "Tranche D 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 D Term Lender"
under the Credit Agreement, (iv) shall have the rights and obligations of a
Lender and a Tranche D 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 D 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 D Term Loan
on the date hereof.
6. Each of the Tranche D Term Loan Borrowers and the Guarantors agrees
that, as of the date hereof, each of the Tranche D Term Lenders shall (i) be a
party to the Credit Agreement and the other Credit Documents, (ii) be a "Lender"
and a "Tranche D Term Lender" for all purposes of
30
the Credit Agreement and the other Credit Documents, and (iii) have the rights
and obligations of a Lender and a Tranche D Term Lender under the Credit
Agreement and the other Credit Documents.
7. The address of each Tranche D 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]
31
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:
32
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:
33
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,
BIO-MEDICAL APPLICATIONS OF NEW YORK,
INC., a Delaware corporation,
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
NMC A, LLC, a Delaware limited liability
company
By:
------------------------------------
Name:
Title:
34
GUARANTORS: 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:
35
TRANCHE D TERM LENDERS:
----------------------------------------
By:
------------------------------------
Name:
Title:
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A., as Administrative
Agent
By:
------------------------------------
Name:
Title:
36
SCHEDULE 2.01
to Tranche D Term Loan Joinder Agreement
TRANCHE D TERM LOAN COMMITMENTS AND COMMITMENT PERCENTAGES
TRANCHE D TERM LOAN TRANCHE D TERM LOAN
TRANCHE D LENDER COMMITMENT COMMITMENT PERCENTAGE
------------------- ---------------------
Totals: [USD250,000,000.00] 100.000000000%
=================== =====================
37
SCHEDULE 11.02
to Tranche D Term Loan Joinder Agreement
TRANCHE D TERM LENDER NOTICE ADDRESSES
38
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 [FIVE HUNDRED SEVENTY-FIVE MILLION
DOLLARS (USD575,000,000)]. 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
39
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]
40
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:
41
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:
42
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,
BIO-MEDICAL APPLICATIONS OF NEW YORK,
INC., a Delaware corporation,
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
43
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:
44
NEW REVOLVING LENDERS:
----------------------------------------
By:
------------------------------------
Name:
Title:
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A., as
Administrative Agent
By:
------------------------------------
Name:
Title:
45
SCHEDULE 2.01
to Revolving Loan Joinder Agreement
REVOLVING COMMITMENTS AND COMMITMENT PERCENTAGES
REVOLVING LENDER REVOLVING COMMITMENT REVOLVING COMMITMENT PERCENTAGE
-------------------- -------------------------------
Totals: [USD575,000,000.00] 100.000000000%
==================== ===============================
46
SCHEDULE 11.02
to Revolving Loan Joinder Agreement
NEW REVOLVING LENDER NOTICE ADDRESSES
47
CONSENT TO AMENDMENT NO. 2
Bank of America, N.A.,
as Administrative Agent
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, 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. 2 dated May __, 2003 (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 Required Revolving Lenders and the
Required 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:
48