Exhibit 4.33
AMENDED AND RESTATED LOAN NOTE
$400,000,000 | June 18, 2015 |
FOR VALUE RECEIVED, Fresenius Medical Care AG & Co. KGaA, a German partnership limited by shares; Fresenius Medical Care Holdings, Inc., a New York corporation; National Medical Care, Inc., a Delaware corporation; Bio-Medical Applications of Alabama, Inc., a Delaware Corporation; Bio-Medical Applications of California, Inc., a Delaware corporation; Bio-Medical Applications of Delaware, Inc., a Delaware corporation; Bio-Medical Applications of Georgia, Inc., a Delaware corporation; Bio-Medical Applications of Kentucky, Inc., a Delaware corporation; Bio-Medical Applications of Louisiana, LLC, a Delaware limited liability company; Bio-Medical Applications of Minnesota, Inc., a Delaware corporation; Bio-Medical Applications of Mississippi, Inc., a Delaware corporation; Bio-Medical Applications of New Hampshire, Inc., a Delaware corporation; Bio-Medical Applications of New Jersey, Inc., a Delaware corporation; Bio-Medical Applications of New Mexico, Inc., a Delaware corporation; Bio-Medical Applications of North Carolina, Inc., a Delaware corporation; Bio-Medical Applications of Ohio, Inc., a Delaware corporation; Bio-Medical Applications of Pennsylvania, Inc., a Delaware corporation; Bio-Medical Applications of Tennessee, Inc., a Delaware corporation; Bio-Medical Applications of Texas, Inc., a Delaware corporation ; Bio-Medical Applications of West Virginia, Inc., a Delaware corporation; Bio-Medical Applications of Virginia, Inc., a Delaware corporation; Fresenius USA Manufacturing, Inc., a Delaware corporation; Fresenius USA Marketing, Inc., a Delaware corporation; Fresenius USA, Inc., a Massachusetts corporation; Spectra Laboratories, Inc., a Nevada corporation; WSKC Dialysis Services, Inc., an Illinois corporation; Fresenius Management Services, Inc., a Delaware corporation; Renal Care Group, Inc., a Delaware corporation; Dialysis Centers of America — Illinois, Inc., an Illinois corporation; Renal Care Group of the Midwest, Inc., a Kansas corporation; Renal Advantage Holdings, Inc., a Delaware corporation; Renal Advantage Inc., a Delaware corporation; Bio-Medical Applications of Wisconsin, Inc., a Delaware corporation; Fresenius Medical Care Ventures Holding Company, Inc., a Delaware corporation; Renal Care Group of the South, Inc., a Delaware corporation; Renal Care Group Alaska, Inc., an Alaska corporation; Renal Care Group East, Inc., a Pennsylvania corporation; RCG Mississippi, Inc., a Delaware corporation; Renal Care Group Northwest, Inc., a Delaware corporation; RCG University Division, Inc., a Tennessee corporation; Renex Dialysis Clinic of Woodbury, Inc., a New Jersey corporation; Spectra East, Inc., a Delaware corporation; Bio-Medical Applications of South Carolina, Inc., a Delaware corporation; Fresenius Medical Care Rx, LLC, a Delaware limited liability company; Fresenius Medical Care Pharmacy Services, Inc., a Delaware corporation; Bio-Medical Applications of Illinois, Inc., a Delaware corporation; FMS New York Services, LLC, a Delaware limited liability company; and NNA Management Company of Kentucky, Inc., a Kentucky corporation (collectively, the “Borrowers”), jointly and severally promise to pay to the order of Fresenius SE & Co. KGaA, a German partnership limited by shares, or its specified subsidiary (the “Lender”) the lesser of (i) the
principal amount of $400,000,000 (Four Hundred Million Dollars) (or the US Dollar equivalent of any amount denominated in any other currency as determined by Lender based on the spot rate as reasonably selected by Lender), or (ii) the unpaid principal amount of all Advances (as defined in Section 2) made by the Lender to the Borrowers hereunder, together with interest accrued thereon at the rate set forth below, on the date specified for repayment of such Advance pursuant to Clause 3 hereof or such earlier date as such amounts may become payable pursuant to the terms hereof.
1. The following terms used in this Note shall have the following meanings:
“FMC Credit Agreement” means the Credit Agreement dated as of October 30, 2012 among FMC and FMCH, as borrowers and guarantors, the other borrowers and guarantors party thereto, the lenders party thereto, Bank of America, N.A., as Administrative Agent, as amended, restated, supplemented, or otherwise modified, or renewed, refunded, replaced, or refinanced from time to time.
“FMC” means Fresenius Medical Care AG & Co. KGaA, a German partnership limited by shares, and its successors and permitted assigns.
“FMCH” means Fresenius Medical Care Holdings, Inc., a New York corporation, and its successors and permitted assigns.
All other capitalized terms used but not otherwise defined herein shall bear the meanings assigned thereto in the FMC Credit Agreement. This Note amends and restates and supersedes the Loan Note dated as of June 30, 2014 (the “Original Note”) in the original principal amount of $400,000,000 issued by the borrowers party thereto to Lender. The Borrowers and Lender hereby agree that with effect from November 26, 2014, (i) all loans outstanding under the Original Note shall be deemed loans made under this Note and subject to the terms hereunder, (ii) the borrowers identified on Schedule I hereto shall be borrowers under this Note, and (iii) the borrowers identified on Schedule II hereto shall be released from all obligations under and in respect of the Original Note.
2. The Lender may lend (but shall not have any commitment to lend) one or more advances (each an “Advance”) to the Borrowers jointly and severally from time to time upon request during the period from the date hereof to but excluding October 30, 2017 in an aggregate amount which shall not exceed $400,000,000 (or the US Dollar equivalent of any amount denominated in any other currency as determined by Lender based on the spot rate as reasonably selected by Lender). Amounts borrowed hereunder may be repaid and reborrowed. The Lender shall have no obligation to make any Advance requested hereunder.
3. Each Advance shall be repaid in full on the date that is one, two or three months after the date on which it is made, as agreed by the Borrowers and the Lender on the date such Advance is made, or any other period agreed between the Borrowers and the Lender; provided, that if no maturity date is so agreed, such Advance shall have a term of one month.
4. Borrowers and Lender hereby agree that from and after November 26, 2014, the unpaid principal amount of each Advance made hereunder shall bear interest at a fluctuating rate per annum equal to the Fixed LIBOR Rate (as defined in and calculated pursuant to the FMC Credit Agreement) for an Interest Period equivalent to the term of such Advance plus a margin, determined pursuant to the pricing matrix set forth below, that is based on the Consolidated Leverage Ratio (as defined in and calculated pursuant to the FMC Credit Agreement), and shall change as and when the Applicable Percentage (as defined in and calculated pursuant to the FMC Credit Agreement) changes:
Pricing Level |
| Consolidated |
| Margin |
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I |
| > 3.5:1.0 |
| 1.355 | % |
II |
| > 3.0:1.0 but < 3.5:1.0 |
| 1.280 | % |
III |
| > 2.5:1.0 but < 3.0:1.0 |
| 1.170 | % |
IV |
| > 2.0:1.0 but < 2.5:1.0 |
| 1.100 | % |
V |
| < 2.0:1.0 |
| 0.980 | % |
Interest shall be payable in arrears upon maturity, on any prepayment and on any acceleration of the principal amount hereof and shall be computed on the basis of a 360-day year for the actual number of days elapsed (including the first day and excluding the last day).
5. Whenever any payment on this Note shall be stated to be due on a day which is not a Business Day or is a day on which commercial banks are authorized or required by law to close in the Federal Republic of Germany, such payment shall be made on the next succeeding Business Day on which commercial banks are not authorized or required by law to close in the Federal Republic of Germany, and such extension of time shall be included in the computation of the payment of interest on this Note.
6. All payments of principal and interest in respect of this Note shall be made in lawful money of the United States in same day funds to the Lender’s account as notified in writing by the Lender.
7. If any proceeding under any Debtor Relief Law shall be commenced by or against the Borrowers, all amounts of principal and accrued interest outstanding under this Note shall become immediately due and payable.
8. The Lender agrees, by its acceptance hereof, that before disposing of this Note or any part hereof it will make a notation hereon of all Advances, the maturity date of each such Advance and principal payments previously made hereunder and of the date to which interest hereon has been paid; provided, however, that the failure to make a notation of any Advance or any payment made on this Note shall not limit or otherwise affect the obligation
of the Borrowers hereunder with respect to payments of principal or interest on this Note.
9. Any Borrower may cease to be a Borrower hereunder by delivering a written notice to the Lender, effective on the later to occur of (i) the date the Lender receives such written notice and (ii) the date such Borrower has paid all of its obligations and all accrued and unpaid interest, fees and other obligations hereunder or in connection herewith.
10. Upon the formation, acquisition (other receipt of interests) or existence of any Material Domestic Subsidiary of FMCH that is not a Borrower hereunder, such Material Domestic Subsidiary may become a Borrower hereunder by executing an amendment to this Note.
11. THIS NOTE AND THE OBLIGATIONS OF THE BORROWERS ARISING HEREUNDER AND ALL OTHER ASPECTS HEREOF SHALL BE DEEMED TO BE MADE UNDER, SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
12. The obligations of the Borrowers arising under this Note may be prepaid in whole or in part, together with all accrued interest thereon, without penalty or premium.
13. The terms of this Note are subject to amendment only by a writing signed by the Borrowers and the Lender.
14. In no event shall any interest be payable under this Note to the extent that the payment thereof would be prohibited by applicable law.
15. The Borrowers hereby waives diligence, presentment, protest, demand and notice of every kind and, to the full extent permitted by law, the right to plead any statute of limitations as a defense to any demand hereunder.
16. No delay on the part of the Lender in the exercise of any right or remedy shall operate as a waiver thereof, and no single or partial exercise by the Lender, of any right or remedy shall preclude any other or further exercise of any other right or remedy.
17. In case any provision in or obligation under this Note shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, this Note has been executed as of the day and year first written above.
BORROWERS: |
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| FRESENIUS MEDICAL CARE AG & Co. KGaA, a German partnership limited by shares, represented by FRESENIUS MEDICAL CARE MANAGEMENT AG, a German corporation, its general partner | |
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| By: | s/ Michael Brosnan |
| Name: Michael Brosnan | |
| Title: Member of the Management Board | |
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| By: | s/ Dominik Wehner |
| Name: Dominik Wehner | |
| Title: Member of the Management Board | |
[Signature Page —Loan Note]
FRESENIUS MEDICAL CARE HOLDINGS, INC., a New York corporation
NATIONAL MEDICAL CARE, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF ALABAMA, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF CALIFORNIA, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF DELAWARE, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF GEORGIA, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF KENTUCKY, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF LOUISIANA, LLC, a Delaware limited liability company
BIO-MEDICAL APPLICATIONS OF MINNESOTA, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF MISSISSIPPI, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF NEW HAMPSHIRE, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF NEW JERSEY, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF NEW MEXICO, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF NORTH CAROLINA, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF OHIO, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF PENNSYLVANIA, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF TENNESSEE, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF TEXAS, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF WEST VIRGINIA, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF VIRGINIA, INC., a Delaware corporation
FRESENIUS USA MANUFACTURING, INC., a Delaware corporation
FRESENIUS USA MARKETING, INC., a Delaware corporation
FRESENIUS USA, INC., a Massachusetts corporation
SPECTRA LABORATORIES, INC., a Nevada corporation
WSKC DIALYSIS SERVICES, INC., an Illinois corporation
FRESENIUS MANAGEMENT SERVICES, INC., a Delaware corporation
RENAL CARE GROUP, INC., a Delaware corporation
DIALYSIS CENTERS OF AMERICA — ILLINOIS, INC., an Illinois corporation
RENAL CARE GROUP OF THE MIDWEST, INC., a Kansas corporation
RENAL ADVANTAGE HOLDINGS, INC., a Delaware corporation
RENAL ADVANTAGE INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF WISCONSIN, INC., a Delaware corporation
FRESENIUS MEDICAL CARE VENTURES HOLDING COMPANY, INC., a Delaware corporation
RENAL CARE GROUP OF THE SOUTH, INC., a Delaware corporation
RENAL CARE GROUP ALASKA, INC., an Alaska corporation
RENAL CARE GROUP EAST, INC., a Pennsylvania corporation
RCG MISSISSIPPI, INC., a Delaware corporation
RENAL CARE GROUP NORTHWEST, INC., a Delaware corporation
RCG UNIVERSITY DIVISION, INC., a Tennessee corporation
RENEX DIALYSIS CLINIC OF WOODBURY, INC., a New Jersey corporation
SPECTRA EAST, INC., a Delaware corporation
FRESENIUS MEDICAL CARE RX, LLC, a Delaware limited liability company
FRESENIUS MEDICAL CARE PHARMACY SERVICES, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF SOUTH CAROLINA, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF ILLINOIS, INC., a Delaware corporation
FMS NEW YORK SERVICES, LLC, a Delaware limited liability company
NNA MANAGEMENT COMPANY OF KENTUCKY, INC., a Kentucky corporation
By: | s/ Mark Fawcett |
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Name: Mark Fawcett |
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Title: Vice President and Treasurer for each of the foregoing |
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[Signature Page —Loan Note]
ACKNOWLEDGED AND AGREED: |
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| FRESENIUS SE & Co. KGaA, represented by FRESENIUS MANAGEMENT SE, its general partner, as Lender | |
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| By: | s/ Stephan Sturm |
| Name: Stephan Sturm | |
| Title: CFO | |
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| By: | s/ Dr. Karl-Dieter Schwab |
| Name: ppa. Dr. Karl-Dieter Schwab | |
| Title: SVP Finance and Prokurist | |
[Signature Page —Loan Note]
TRANSACTIONS ON PROMISSORY NOTE
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| Maturity Date |
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Schedule I
Additional Borrowers
FRESENIUS MEDICAL CARE RX, LLC, a Delaware limited liability company
FRESENIUS MEDICAL CARE PHARMACY SERVICES, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF ILLINOIS, INC., a Delaware corporation
FMS NEW YORK SERVICES, LLC, a Delaware limited liability company
NNA MANAGEMENT COMPANY OF KENTUCKY, INC., a Kentucky corporation
Schedule II
Released Borrowers
BIO-MEDICAL APPLICATIONS OF INDIANA, INC., a Delaware corporation
QUALICENTERS EUGENE-SPRINGFIELD, LTD., a Colorado limited liability company
QUALICENTERS INLAND NORTHWEST, LLC, a Colorado limited liability company
QUALICENTERS PUEBLO, LLC, a Colorado limited liability company
QUALICENTERS SIOUX CITY, LLC, a Colorado limited liability company
BIO-MEDICAL APPLICATIONS OF FLORIDA, INC., a Delaware corporation
NNA OF NEVADA, INC., a Nevada corporation
Bio-Medical Applications OF MARYLAND, Inc., a Delaware corporation
LIBERTY DIALYSIS, LLC, a Delaware limited liability company
AMERICAN ACCESS CARE HOLDINGS, LLC, a Delaware limited liability company
BIO-MEDICAL APPLICATIONS OF MISSOURI, INC., a Delaware corporation
DIALYSIS MANAGEMENT CORPORATION, a Texas corporation
NNA OF ALABAMA, INC., an Alabama corporation
BIO-MEDICAL APPLICATIONS OF FAYETTEVILLE, INC., a Delaware corporation
RENAL CARE GROUP OF THE SOUTHEAST, INC., a Florida corporation
RENAL CARE GROUP TEXAS, INC., a Texas corporation
RENAL CARE GROUP SOUTHWEST HOLDINGS, INC., a Delaware corporation
RENAL RESEARCH INSTITUTE, LLC, a New York limited liability company