EXHIBIT 4.16
AMENDMENT NO. 14
THIS AMENDMENT NO. 14, dated as of February 22, 2002 (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, 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, effective as of December 31, 2001, as
follows:
1. It is hereby understood and agreed that for purposes of clarification
any amounts payable with respect to the litigation and other disputes with
insurance companies relating to the business of the FMCH and its
Subsidiaries in the period before the consummation of the Reorganization,
which relate to the practices that were the subject of investigations by
the OIG and other Governmental Authorities are Governmental Program
Reimbursement Costs for all purposes under the Credit Agreement, and such
Governmental Program Reimbursement Costs, any related costs or expenses,
and any accounting charges taken by any member of the Consolidated Group as
a result thereof or relating thereto or to the settlement of such disputes,
shall be treated, for purposes of the Credit Agreement, in the same manner
as the settlement with the OIG and the related costs and accounting
charges.
2. It is hereby understood and agreed that any non-recurring charges
taken by any member of the Consolidated Group at any time with respect to
(i) any claims of Holdings or any of its Subsidiaries against WRG-Conn or
its Affiliates, successors or assigns relating to the Reorganization or
arising from the Reorganization Documents or (ii) any other costs relating
directly or indirectly, or arising from, the Reorganization or the conduct
of the business of FMCH or to its Subsidiaries before the consummation of
the Reorganization, in each case, together with related costs and expenses,
shall be excluded from the calculation of Consolidated Net Income for the
purposes of computing the financial covenants set forth in Section 7.9.
3. Except as modified hereby, all of the terms and provisions of the
Credit Agreement (and Exhibits and Schedules) remain in full force and
effect.
4. 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.
5. 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.
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 its
shall not be necessary in making proof of this Amendment to produce or
account for more than one such counterpart.
7. The effectiveness of this Amendment is subject to receipt by the
Paying Agent of an amendment fee of five basis points (0.05%) on the
aggregate amount of the Commitments held by each of the Lenders consenting
to this Amendment on or before February 22, 2002.
8. This Amendment, and the Credit Agreement as amended hereby, shall be
governed by and construed and interpreted in accordance with the laws of
the State of New York.
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2
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/ Marc Lieberman
-----------------------------------------------
Name: Marc Lieberman
Title: Treasurer
FRESENIUS MEDICAL CARE AG
By /s/ Dr. Emanuele Gatti
-----------------------------------------------
Name: Dr. Emanuele Gatti
Title: Management Board Member
By /s/ Roberto Fuste
-----------------------------------------------
Name: Roberto Fuste
Title: Management Board Member
NMC DO BRASIL LTDA.,
a Brazil corporation
By /s/ Horst Radtke/Armin Karch
-----------------------------------------------
Name: Horst Radtke/Armin Karch
Title: Manager
NATIONAL MEDICAL CARE OF SPAIN, S.A.,
a Spanish corporation
By /s/ Dr. Emanuele Gatti/Ricardo Arias Duval
-----------------------------------------------
Name: Dr. Emanuele Gatti/Ricardo Arias Duval
Title: Manager
NATIONAL MEDICAL CARE OF TAIWAN, INC.,
a Delaware corporation
By /s/ Marc Lieberman
-----------------------------------------------
Name: Marc Lieberman
Title: Treasurer
NMC CENTRO MEDICO NACIONAL, LDA.,
a Portuguese corporation
By /s/ Ricardo Dasilva/John Allen
-----------------------------------------------
Name: Ricardo Da Silva/John Allen
Title: Manager
FRESENIUS MEDICAL CARE ARGENTINA, S.A.,
as successor by merger to
NMC DE ARGENTINA, S.A.,
an Argentine corporation
By /s/ Dr. Guido Yagupsky/Horst Radtke
-----------------------------------------------
Name: Dr. Guido Yagupsky/Horst Radtke
Title: Manager
FRESENIUS USA, INC.,
a Massachusetts corporation
By /s/ Marc Lieberman
-----------------------------------------------
Name: Marc Lieberman
Title: Treasurer
FRESENIUS MEDICAL CARE DEUTSCHLAND GmbH,
a German corporation
By /s/ Rolf Groos
-----------------------------------------------
Name: Rolf Groos
Title: Manager
By /s/ Norbert Weber
-----------------------------------------------
Name: Norbert Weber
Title: Manager
FRESENIUS MEDICAL CARE GROUPE FRANCE
(formerly known as Fresenius Groupe France S.A.),
a French corporation
By /s/ Udo Werle/Dr. Emanuele Gatti
-----------------------------------------------
Name: Udo Werle/Dr. Emanuele Gatti
Title: Manager
FRESENIUS MEDICAL CARE ITALIA, S.p.A.,
an Italian corporation
By /s/ Dr. Emanuele Gatti/Rolf Groos
-----------------------------------------------
Name: Dr. Emanuele Gatti/Rolf Groos
Title: Manager
FRESENIUS MEDICAL CARE ESPANA S.A.,
a Spanish corporation
By /s/ Dr. Emanuele Gatti/Ricardo Arias Duval
-----------------------------------------------
Name: Dr. Emanuele Gatti/Ricardo Arias Duval
Title: Manager
FRESENIUS MEDICAL CARE MAGYAROSZA KfG,
a Hungarian corporation
By /s/ Norman Erhard
-----------------------------------------------
Name: Norman Erhard
Title: Manager
BIO-MEDICAL APPLICATIONS OF ALABAMA, INC.
By: /s/ Marc Lieberman
-----------------------------------------------
Name: Marc Lieberman
Title: Treasurer
BIO-MEDICAL APPLICATIONS OF FLORIDA, INC.
By: /s/ Marc Lieberman
-----------------------------------------------
Name: Marc Lieberman
Title: Treasurer
BIO-MEDICAL APPLICATIONS OF GEORGIA, INC.
By: /s/ Marc Lieberman
----------------------------------------
Name: Marc Lieberman
Title: Treasurer
BIO-MEDICAL APPLICATIONS OF INDIANA, INC.
By: /s/ Marc Lieberman
----------------------------------------
Name: Marc Lieberman
Title: Treasurer
BIO-MEDICAL APPLICATIONS OF KENTUCKY, INC.
By: /s/ Marc Lieberman
----------------------------------------
Name: Marc Lieberman
Title: Treasurer
BIO-MEDICAL APPLICATIONS OF LOUISIANA, INC.
By: /s/ Marc Lieberman
----------------------------------------
Name: Marc Lieberman
Title: Treasurer
BIO-MEDICAL APPLICATIONS OF MARYLAND, INC.
By: /s/ Marc Lieberman
----------------------------------------
Name: Marc Lieberman
Title: Treasurer
BIO-MEDICAL APPLICATIONS OF MASSACHUSETTS, INC.
By: /s/ Marc Lieberman
----------------------------------------
Name: Marc Lieberman
Title: Treasurer
BIO-MEDICAL APPLICATIONS OF NORTH CAROLINA, INC.
By: /s/ Marc Lieberman
----------------------------------------
Name: Marc Lieberman
Title: Treasurer
BIO-MEDICAL APPLICATIONS OF OHIO, INC.
By: /s/ Marc Lieberman
----------------------------------------
Name: Marc Lieberman
Title: Treasurer
BIO-MEDICAL APPLICATIONS OF PENNSYLVANIA, INC.
By: /s/ Marc Lieberman
----------------------------------------
Name: Marc Lieberman
Title: Treasurer
BIO-MEDICAL APPLICATIONS OF SOUTH CAROLINA, INC.
By: /s/ Marc Lieberman
----------------------------------------
Name: Marc Lieberman
Title: Treasurer
BIO-MEDICAL APPLICATIONS OF TEXAS, INC.
By: /s/ Marc Lieberman
----------------------------------------
Name: Marc Lieberman
Title: Treasurer
BIO-MEDICAL APPLICATIONS OF VIRGINIA, INC.
By: /s/ Marc Lieberman
----------------------------------------
Name: Marc Lieberman
Title: Treasurer
LIFECHEM, INC.,
a Delaware corporation
By /s/ Marc Lieberman
----------------------------------------
Name: Marc Lieberman
Title: Treasurer
GUARANTORS: FRESENIUS MEDICAL CARE HOLDINGS, INC.,
a New York corporation formerly known as WRG-NY
By /s/ Jerry Schneider
----------------------------------------
Name: Jerry Schneider
Title: Chief Financial Officer
NATIONAL MEDICAL CARE, INC.,
a Delaware corporation
By /s/ Marc Lieberman
----------------------------------------
Name: Marc Lieberman
Title: Treasurer
BIO-MEDICAL APPLICATIONS MANAGEMENT CO., INC.,
a Delaware corporation
By /s/ Marc Lieberman
----------------------------------------
Name: Marc Lieberman
Title: Treasurer
FRESENIUS MEDICAL CARE AG,
a German corporation
By /s/ Dr. Emanuele Gatti
-----------------------------------------
Name: Dr. Emanuele Gatti
Title: Management Board Member
By /s/ Roberto Fuste
----------------------------------------
Name: Roberto Fuste
Title: Management Board Member
FRESENIUS USA, INC.,
a Massachusetts corporation
By /s/ Marc Lieberman
----------------------------------------
Name: Marc Lieberman
Title: Treasurer
FRESENIUS MEDICAL CARE DEUTSCHLAND
GmbH, a German corporation
By /s/ Rolf Groos
-----------------------------------------
Name: Rolf Groos
Title: Manager
By /s/ Norbert Weber
----------------------------------------
Name: Norbert Weber
Title: Manager
FRESENIUS MEDICAL CARE GROUPE FRANCE,
a French corporation
(formerly known as Fresenius Groupe France S.A.)
By /s/ Udo Werle/Dr. Emanuele Gatti
-----------------------------------------
Name: Udo Werle/Dr. Emanuele Gatti
Title: Manager
FRESENIUS SECURITIES, INC.,
a California corporation
By /s/ Marc Lieberman
-----------------------------------------
Name: Marc Lieberman
Title: Treasurer
NEOMEDICA, INC.,
a Delaware corporation
By /s/ Marc Lieberman
-----------------------------------------
Name: Marc Lieberman
Title: Treasurer
FMC FINANCE S.A.,
a Luxembourg corporation
By /s/ John Allen
-----------------------------------------
Name: John Allen
Title: Manager
FMC TRUST FINANCE S.a.r.l. LUXEMBOURG,
a Luxembourg corporation
By /s/ Andrea Stopper
-----------------------------------------
Name: Andrea Stopper
Title: Manager
FMC TRUST FINANCE S.a.r.l. LUXEMBOURG III,
a Luxembourg corporation
By /s/ Gabriele Dux
-----------------------------------------
Name: Gabriele Dux
Title: Manger
QCI HOLDINGS, INC.,
a Delaware corporation
By /s/ Marc Lieberman
-----------------------------------------
Name: Marc Lieberman
Title: Treasurer
SRC HOLDINGS, INC.,
a Delaware corporation
By /s/ Marc Lieberman
-----------------------------------------
Name: Marc Lieberman
Title: Treasurer
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/ RICHARD L. NICHOLS, JR.
-----------------------------------------
Name: Richard L. Nichols, Jr.
Title: Managing Director
CONSENT TO AMENDMENT NO. 14
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: Cassandra McCain
Ph: 415.436.3400
Fx: 415.503.5133
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. 14 dated February 22, 2002 (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,
Bank of America, N. A.
By: /s/ Richard L. Nichols, Jr.
----------------------------------------
Name: Richard L. Nichols, Jr.
Title: Managing Director