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EXHIBIT 4.12
AMENDMENT NO. 10
THIS AMENDMENT NO. 10, dated as of September 21, 2000 (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 BANK OF
AMERICA, N.A., (formerly known as 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 the Lenders identified therein, and NationsBank, N.A.,
as Paying Agent.
WHEREAS, on March 2, 2000, Holdings issued 8,974,359 of its non-voting
preference shares to a limited number of institutional and other accredited
investors in exchange for the contribution by those investors of all of the
membership interests in Franconia Acquisition LLC, a Delaware limited liability
company, ("FRANCONIA") dedicated to acquiring dialysis centers and related
businesses and having a cash balance of $350 million (the "FRANCONIA
TRANSACTION").
WHEREAS, on July 26, 2000, Holdings issued 5,000,000 of its non-voting
preference shares in a global offering to fund acquisitions and capital
expenditures (together with the 750,000 shares issued in connection with the
overallotment option granted in connection herewith, the "2000 OFFERING");
WHEREAS, the Company has requested the modification of certain
covenants and certain other changes to the Credit Agreement more fully set forth
herein;
WHEREAS, the requested 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 The following definitions in Section 1.1 are amended
and modified as hereafter provided:
(i) The definition of "Material Subsidiary" is
amended by inserting at the end of the first proviso
thereto the following:
"nor any member of the Consolidated Group
party to any Acquired Subdebt that would be
prohibited from entering into the Guarantor Joinder
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Agreement or whose Parent would be prohibited from
pledging its stock pursuant to the Pledge Agreement,
in either case, pursuant to the provisions of such
Acquired Subdebt as in effect on the date that it
became a member of the Consolidated Group or pursuant
to the documents relating to the Subordinated Debt or
the Additional Subdebt."
(ii) The definition of "Permitted Investments" is
amended in the following respects:
(A) Clause (xiv) thereof is hereby amended
by deleting the reference to "$100,000,000" and
replacing it with a reference to "$200,000,000".
(B) A new subsection (xxi) is hereby added
thereunder and subsection (xxi) thereof is renumbered
to be subsection (xxii), as follows:
(xxi) Investments by Holdings or any
Foreign Subsidiary of Holdings in preferred
stock issued by WRG-NY or any Subsidiary of
WRG-NY that is not a Credit Party in
connection with the RIPSS/REPO structures
described on ANNEX A to Amendment No. 10 to
this Agreement or substantially similar
transactions;
(iii) The definition of "Excluded Securitization
Transaction" is hereby amended by deleting the reference to
"$400,000,000" in the eighth line thereof and inserting a
reference to "$600,000,000" in its place.
(iv) The definition of "Permitted Receivables
Financing" is hereby amended by deleting the references to
"$15 million" and "$75 million" in clause (B) of the proviso
thereto and inserting references to "$20 million" and "$100
million", respectively, in place thereof.
1.2 Clause (b) of Section 7.11 is amended in its entirety
to read as follows:
(b) If a Foreign Subsidiary which is a Material
Subsidiary has not either (i) become a Credit Party hereunder,
or (ii) had its capital stock or the capital stock of its
Parent pledged to secure the Obligations (or, if such Foreign
Subsidiary is a direct or indirect Subsidiary of WRG-NY or
other Domestic Credit Party, had 66% of its capital stock or
66% of the capital stock of its Parent pledged to secure the
Obligations hereunder) if such Foreign Subsidiary is a direct
or indirect Subsidiary of WRG-NY or other Domestic Credit
Party, then the Company will promptly notify the Paying Agent
thereof and WRG-NY will pledge, or if the Parent or such
Foreign Subsidiary is a Subsidiary of WRG-NY, will cause the
Parent to pledge, 66% of the capital stock of such Foreign
Subsidiary or 66% of the capital stock of such Parent and, in
connection therewith deliver a related pledge agreement and
such supporting resolutions, incumbency certificates,
corporate formation and organizational documentation and
opinions of counsel as the Paying Agent may reasonably
request.
1.3 Section 8.1 (Indebtedness) is amended in the
following respects:
(i) Clause (e) is hereby amended by deleting the
reference to "$400,000,000" in clause (i) of the proviso
thereto and inserting a reference to "$600,000,000" in its
place;
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(ii) Clause (m) is hereby amended by deleting the
reference to "$500 million" in the first line thereof (which
was increased to $650 million by consent of the Lenders in
February, 1998) and replacing it with a reference to "$950
million" and inserting the following additional proviso at the
end thereof:
"PROVIDED, FURTHER that, up to $300 million
of such amount may be subordinated debt of any member
of the Consolidated Group and Guaranty Obligations
relating thereto, in either case existing at the time
such Person becomes a Subsidiary of Holdings so long
as such debt and obligations were not incurred by
such Person in connection with, or in anticipation or
contemplation of the acquisition, merger or
consolidation pursuant to which such Person became a
member of the Consolidated Group ("ACQUIRED SUBDEBT")
and shall not be subject to the requirements of
clause (ii) of the first proviso hereto (and clauses
(i) and (iii) thereof shall not be applicable to such
Acquired Subdebt except that such Acquired Subdebt
may not be guaranteed by Holdings or any other
Subsidiary of Holdings not created in contemplation
of the acquisition without the prior written consent
of the Required Lenders)."
1.4 Section 8.4(c) is hereby amended by renumbering clause
(vi) thereof as clause (vii) and inserting a new clause (vi) thereto as
follows:
(vi) the transfer of an interest in any accounts
receivable from any Subsidiary of WRG-NY that is a special
purpose accounts receivable financing vehicle to WRG-NY or any
other Subsidiary of WRG-NY in connection with the RIPSS/REPO
structure described on ANNEX A to Amendment No. 10 to this
Agreement or any other substantially similar transaction.
1.5 Clause (b) of Section 8.9 is hereby amended by inserting
the words "(other than as required by the terms of the Acquired
Subdebt, within six months of the related acquisition or on other terms
reasonably acceptable to the Paying Agent and the Required Lenders)"
immediately before the words "other than regularly scheduled interest
payments" in line 4 thereof.
1.6 Section 8.12 is hereby amended by deleting the word "or"
before the words "requiring the grant" in line 7 thereof and replacing
it with a comma "," and inserting the words "or existing pursuant to
the provisions of any Acquired Subdebt as in effect on the date that
the Person obligated on such debt became a member of the Consolidated
Group" at the end thereof.
2. ACKNOWLEDGMENTS AND CONSENTS WITH RESPECT TO THE RIPSS/REPO
SECURITIES.
2.1 The obligations of any member of the Consolidated Group
under any Option Agreement entered into with any other member of the
Consolidated Group to buy or sell equity interests in any Subsidiary of
WRG-NY or any Subsidiary of WRG-NY shall not be considered "Guaranty
Obligations" as such term is used and defined in the Credit Agreement.
2.2 Any Material Subsidiary that is a special purpose entity
created for the purpose of entering into any Option Agreement for the
purchase or sale of any equity interests described in the foregoing
clause 2.1 shall not be required to enter into the Guarantor Joinder
Agreement, nor shall its Parent be required to pledge its stock under
the Pledge Agreement.
2.3 For the purposes of clarification, it is hereby understood
and agreed that the segregation of a pool of assets for the purposes of
making an election to treat those assets as a "Financial Asset
Securitization Investment Trust" or "FASIT" under the Internal Revenue
Code
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or any successor statute or the transfer of any ownership interest
therein as contemplated by the RIPSS/REPO structure described on ANNEX
A to Amendment No. 10 to the Credit Agreement or substantially similar
transactions shall not constitute a "Lien" as such term is used and
defined in the Credit Agreement.
3. ACKNOWLEDGMENTS AND CONSENTS WITH RESPECT TO THE FRANCONIA
TRANSACTION AND PUBLIC OFFERING.
3.1 It is hereby understood and agreed that (i) no portion of
the Net Proceeds of the Franconia Transaction shall be required to be
applied to the prepayment of the Loans and the reduction of the
Commitments as provided in Section 3.3(b), even if the acquisitions to
which the cash held by Franconia is applied do not occur within the
time periods contemplated by Section 8.4(d) and (ii) no portion of the
Net Proceeds of the 2000 Offering shall be required to be applied to
the prepayment of the Loans and the reduction of the Commitments as
provided in Section 3.3(b), and the provisions of Section 3.3(b) of the
Credit Agreement are hereby waived with respect to the Net Proceeds of
the Franconia Transaction and the 2000 Offering; PROVIDED that the cash
held by Franconia on the date of the consummation of the Franconia
Transaction and the Net Proceeds of the 2000 Offering shall continue to
be treated as Net Proceeds of an Equity Transaction for all other
purposes under the Credit Agreement.
3.2 It is hereby agreed that neither Franconia Acquisition LLC
nor any Domestic Subsidiary of Franconia Acquisition LLC shall be
considered to be a Material Subsidiary and Holdings shall not be
required to cause the stock of such entities to be pledged to secure
the Obligations nor shall such entities be required to execute the
Guarantor Joinder Agreement, and the provisions of Section 7.11 are
hereby waived to such extent.
4. The Lenders hereby waive compliance with the provisions of the
Credit Agreement as in effect before the execution and delivery of this
Amendment No. 10 to the extent, and only to the extent, that any transaction or
action of any member of the Consolidated Group would have been permitted by the
provisions of the Credit Agreement as amended hereby.
5. The effectiveness of this Amendment is subject to receipt by
the Paying Agent of the following:
(i) copies of this Amendment executed by the Company and
the other members of the Consolidated Group identified on the signature
pages hereto,
(ii) the consent of the Required Lenders, and
(iii) an Amendment Fee equal to five basis points (0.05%) of
the aggregate amount of the Commitments held by the Lenders consenting
to this Amendment for the ratable benefit of such consenting Lenders.
6. Except as modified hereby, all of the terms and provisions of
the Credit Agreement (and Exhibits and Schedules) remain in full force and
effect.
7. The Credit Parties hereby affirm (i) the representations and
warranties set out in Section 6 of the Credit Agreement are true and correct as
of the date hereof (except those which expressly relate to an earlier period)
and (ii) no Default or Event of Default presently exists.
8. 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
Moore & Van Allen, PLLC.
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9. 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.
10. 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.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment to be duly executed and delivered as of the date first above
written.
BORROWERS: NATIONAL MEDICAL CARE, INC.,
a Delaware corporation
By: /s/ Ramon Yi
-----------------------------------------------
Name: Ramon Yi
Title: Treasurer
FRESENIUS MEDICAL CARE AG
By: /s/ Dr. Emanuele Gotti
-----------------------------------------------
Name: Dr. Emanuele Gotti
Title: Member of the Board of Management
By: /s/ Dr. Werner Brandt
-----------------------------------------------
Name: Dr. Werner Brandt
Title: Member of the Board of Management
NMC DO BRASIL LTDA.,
a Brazil corporation
By: /s/ Joao Pedrinelli
-----------------------------------------------
Name: Joao Pedrinelli
Title: Member of the Board of Management
NATIONAL MEDICAL CARE OF SPAIN, S.A.,
a Spanish corporation
By: /s/ Dr. Emanuele Gotti /s/ Dr. Andrea Stopper
-----------------------------------------------
Name: Dr. Emanuele Gotti Dr. Andrea Stopper
Title: Board Member Board Member
NATIONAL MEDICAL CARE OF TAIWAN, INC.,
a Delaware corporation
By: /s/ Roberto Fuste /s/ Betty Na
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Name: Roberto Fuste Betty Na
Title: Members of the Board of Directors
NMC CENTRO MEDICO NACIONAL, LDA.,
a Portuguese corporation
By: /s/ Ricardo Da Silva /s/ John Allen
-----------------------------------------------
Name: Ricardo Da Silva John Allen
Title: Board Members
FRESENIUS MEDICAL CARE ARGENTINA, S.A.,
as successor by merger to
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NMC DE ARGENTINA, S.A.,
an Argentine corporation
By: /s/ Dr. Guido Yagupsky /s/ Horst Radthe
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Name: Dr. Guido Yagupsky Horst Radthe
Title: Board Members
FRESENIUS USA, INC.,
a Massachusetts corporation
By: /s/ Ramon Yi
-----------------------------------------------
Name: Ramon Yi
Title: Treasurer
FRESENIUS MEDICAL CARE DEUTSCHLAND GmbH,
a German corporation
By: /s/ Dr. Emanuele Gotti
-----------------------------------------------
Name: Dr. Emanuele Gotti
Title: Board Member
By: /s/ Dr. Werner Brandt
-----------------------------------------------
Name: Dr. Werner Brandt
Title: Board Member
FRESENIUS MEDICAL CARE GROUPE FRANCE
(formerly known as Fresenius Groupe France S.A.),
a French corporation
By: /s/ Udo Werle /s/ Dr. Emanuele Gotti
-----------------------------------------------
Name: Udo Werle Dr. Emanuele Gotti
Title: Board Members
FRESENIUS MEDICAL CARE HOLDING, S.p.A.,
an Italian corporation
By: /s/ Dr. Emanuele Gotti /s/ Andrea Stopper
-----------------------------------------------
Name: Dr. Emanuele Gotti Andrea Stopper
Title: Board Members
FRESENIUS MEDICAL CARE ESPANA S.A.,
a Spanish corporation
By: /s/ Ricardo Davel /s/ Manuel Gluete
-----------------------------------------------
Name: Ricardo Davel Manuel Gluete
Title: Board Members
FRESENIUS MEDICAL CARE MAGYAROSZA KfG,
a Hungarian corporation
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By: /s/ Norman Erhard
------------------------------------------------
Name: Norman Erhard
Title: Board Member
BIO-MEDICAL APPLICATIONS OF ALABAMA, INC.
By: /s/ Ramon Yi
------------------------------------------------
Name: Ramon Yi
Title: Treasurer
BIO-MEDICAL APPLICATIONS OF FLORIDA, INC.
By: /s/ Ramon Yi
-----------------------------------------------
Name: Ramon Yi
Title: Treasurer
BIO-MEDICAL APPLICATIONS OF GEORGIA, INC.
By: /s/ Ramon Yi
------------------------------------------------
Name: Ramon Yi
Title: Treasurer
BIO-MEDICAL APPLICATIONS OF INDIANA, INC.
By: /s/ Ramon Yi
-----------------------------------------------
Name: Ramon Yi
Title: Treasurer
BIO-MEDICAL APPLICATIONS OF KENTUCKY, INC.
By: /s/ Ramon Yi
------------------------------------------------
Name: Ramon Yi
Title: Treasurer
BIO-MEDICAL APPLICATIONS OF LOUISIANA, INC.
By: /s/ Ramon Yi
------------------------------------------------
Name: Ramon Yi
Title: Treasurer
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BIO-MEDICAL APPLICATIONS OF MARYLAND, INC.
By: /s/ Ramon Yi
------------------------------------------------
Name: Ramon Yi
Title: Treasurer
BIO-MEDICAL APPLICATIONS OF MASSACHUSETTS, INC.
By: /s/ Ramon Yi
------------------------------------------------
Name: Ramon Yi
Title: Treasurer
BIO-MEDICAL APPLICATIONS OF NORTH CAROLINA, INC.
By: /s/ Ramon Yi
------------------------------------------------
Name: Ramon Yi
Title: Treasurer
BIO-MEDICAL APPLICATIONS OF OHIO, INC.
By: /s/ Ramon Yi
------------------------------------------------
Name: Ramon Yi
Title: Treasurer
BIO-MEDICAL APPLICATIONS OF PENNSYLVANIA, INC.
By: /s/ Ramon Yi
------------------------------------------------
Name: Ramon Yi
Title: Treasurer
BIO-MEDICAL APPLICATIONS OF SOUTH CAROLINA, INC.
By: /s/ Ramon Yi
------------------------------------------------
Name: Ramon Yi
Title: Treasurer
BIO-MEDICAL APPLICATIONS OF TEXAS, INC.
By: /s/ Ramon Yi
------------------------------------------------
Name: Ramon Yi
Title: Treasurer
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BIO-MEDICAL APPLICATIONS OF VIRGINIA, INC.
By: /s/ Ramon Yi
------------------------------------------------
Name: Ramon Yi
Title: Treasurer
LIFECHEM, INC.,
a Delaware corporation
By: /s/ Ramon Yi
------------------------------------------------
Name: Ramon Yi
Title: Treasurer
GUARANTORS: FRESENIUS MEDICAL CARE HOLDINGS, INC.,
a New York corporation formerly known as WRG-NY
By: /s/ Ramon Yi
------------------------------------------------
Name: Ramon Yi
Title: Treasurer
NATIONAL MEDICAL CARE, INC.,
a Delaware corporation
By: /s/ Ramon Yi
------------------------------------------------
Name: Ramon Yi
Title: Treasurer
BIO-MEDICAL APPLICATIONS MANAGEMENT CO.,
INC., a Delaware corporation
By: /s/ Ramon Yi
------------------------------------------------
Name: Ramon Yi
Title: Treasurer
FRESENIUS MEDICAL CARE AG,
a German corporation
By: /s/ Dr. Emanuele Gotti
------------------------------------------------
Name: Dr. Emanuele Gotti
Title: Board Member
By: /s/ Dr. Werner Brandt
------------------------------------------------
Name: Dr. Werner Brandt
Title: Board Member
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FRESENIUS USA, INC.,
a Massachusetts corporation
By: /s/ Ramon Yi
------------------------------------------------
Name: Ramon Yi
Title: Treasurer
FRESENIUS MEDICAL CARE DEUTSCHLAND
GmbH, a German corporation
By: /s/ Dr. Emanuele Gotti
------------------------------------------------
Name: Dr. Emanuele Gotti
Title: Board Member
By: /s/ Dr. Werner Brandt
------------------------------------------------
Name: Dr. Werner Brandt
Title: Board Member
FRESENIUS MEDICAL CARE GROUPE FRANCE,
a French corporation
(formerly known as Fresenius Groupe
France S.A.)
By: /s/ Dr. Udo Werle /s/ Dr. Emanuele Gotti
------------------------------------------------
Name: Dr. Udo Werle Dr. Emanuele Gotti
Title: Board Members
FRESENIUS SECURITIES, INC.,
a California corporation
By: /s/ Ramon Yi
------------------------------------------------
Name: Ramon Yi
Title: Treasurer
NEOMEDICA, INC.,
a Delaware corporation
By: /s/ Doug Kott
------------------------------------------------
Name: Doug Kott
Title: Secretary
FMC FINANCE S.A.,
a Luxembourg corporation
By: /s/ John Allen
------------------------------------------------
Name: John Allen
Title: Board Member
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FMC TRUST FINANCE S.a.r.l. LUXEMBOURG,
a Luxembourg corporation
By: /s/ Andrea Stopper
------------------------------------------------
Name: Andrea Stopper
Title: Board Member
PAYING AGENT: BANK OF AMERICA, N.A. (formerly known as
NationsBank, N.A.), as Paying Agent for and
on behalf of the Lenders
By: /s/ Ashley M. Crabtree
------------------------------------------------
Name: Ashley M. Crabtree
Title: Senior Vice President
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CONSENT TO AMENDMENT NO. 10
Bank of America, N.A. (formerly known as NationsBank, N.A.),
as Paying Agent
101 N. Tryon Street, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attn: James D. Young, 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. (now known as Bank of America, N.A.), as Paying
Agent. Terms used but not otherwise defined shall have the meanings
provided in the Credit Agreement.
Amendment No. 10 dated September 21, 2000 (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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