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AMENDMENT
THIS AMENDMENT, dated as of November 26, 1996 (the "Amendment")
relating to the Credit Agreement referenced below, by and among NATIONAL MEDICAL
CARE, INC., a Delaware corporation, certain subsidiaries and affiliates party to
the Credit Agreement and identified on the signature pages hereto, and
NATIONSBANK, N.A., as Paying Agent for and on behalf of the Lenders. Terms used
but not otherwise defined shall have the meanings provided in the Credit
Agreement.
W I T N E S S E T H
WHEREAS, a $2.5 billion credit facility has been extended to National
Medical Care, Inc. and certain subsidiaries and affiliates pursuant to the terms
of that Credit Agreement dated as of September 27, 1996 (as amended and
modified, the "Credit Agreement") among National Medical Care, Inc., the other
Borrowers, Guarantors and the Lenders identified therein, and NationsBank, N.A.,
as Paying Agent;
WHEREAS, the Company has requested modification of certain provisions
of the Credit Agreement in anticipation of issuance of the Refinancing
Securities;
WHEREAS, the requested modifications 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:
A. The Credit Agreement is amended and modified in the following
respects:
1. A new definition is added to Section 1.1 to read as follows:
"FMC Trust" means the Fresenius Medical Care Capital Trust, a
Delaware statutory business trust.
2. The definition of "Material Subsidiary" in Section 1.1 is modified
to include the following phrase at the end thereof:
"; and provided, further, that for purposes of determining
whether the FMC Trust is a Material Subsidiary hereunder, the
subordinated notes given by Holdings to the FMC Trust in connection
with the Refinancing Securities shall not be considered
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as assets for purposes hereof, nor shall interest thereon be considered
for purposes of determining Consolidated EBITDA under this definition."
3. A new subsection (xvi) is added to the definition of "Permitted
Investments", and subsection (xvi) is renumbered to be subsection (xvii)
instead, to read as follows:
"(xvi) Investments by Holdings in the common securities of the
FMC Trust in an amount not to exceed $1,000,000, and the loan by the
FMC Trust to Holdings of the proceeds of the Refinancing Securities (as
described in the description of Refinancing Securities in Schedule 1.1)
and the common securities of the FMC Trust issued to Holdings;"
4. Subsection (v) of Section 3.3(b) is amended to include the
following sentence at the end of such subsection:
"In the case of any mandatory prepayment required under this
clause (v) of this subsection (b), the Paying Agent hereby agrees upon
request of the Company to hold amounts prepaid under such clause in a
cash collateral account until the end of an applicable Interest Period,
as an alternative to immediate application, in order to mitigate
break-funding costs which would otherwise be payable under Section
3.12, provided that in any such case the payment into the cash
collateral account shall be in the same currency as the Loan or
Obligation as to which amounts in the cash collateral account will be
applied at the end of the applicable Interest Period; and provided,
further, that interest upon such amounts shall still be payable at the
end of the applicable Interest Period as provided in Section 2.1(d)."
5. References in Section 7.9(b) and (c) to the "Closing Date" are
amended to refer instead to "October 1, 1996".
6. In the lead-in language of subsection (g) of Section 8.1 the phrase
"If Holdings is a Guarantor, the Refinancing Securities and Guaranty Obligations
relating thereto" is modified to read as follows:
"If Holdings is a Guarantor, the Refinancing Securities and
the common securities of the FMC Trust permitted by subsection (xvi) of
the definition of "Permitted Investments", together with related
subordinated debt, and Guaranty Obligations related thereto"
7. In the lead-in language of subsection (d) of Section 8.4 immediately
following the phrase "except for Investments in entities in which less than 50%
is (or, as a result of the transaction, will be) owned by a Credit Party where
such Investments are allowed by subclause (xiii) of the definition of Permitted
Investments" there shall be added the following:
"and Investment by Holdings in the common securities of the FMC Trust
as allowed by subclause (xvi) of the definition of Permitted Investments,"
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8. A new subsection (v) is added to Section 8.7, and subsection (v) is
renumbered to be subsection (vi) instead, to read as follows:
"(v) the FMC Trust may issue the preferred securities in the
amount of $360,000,000 as described in Schedule 1.1 hereto,"
9. The reference in description of the "Senior Subordinated Notes" in
Schedule 1.1 as limited to an aggregate principal amount to $350,000,000, is
amended and increased to $360,500,000; it being understood and agreed that the
9% Senior Subordinated Notes due December 1, 2006 to be issued under the
Indenture dated as of November 27, 1996 among Holdings, the Subsidiary
Guarantors therein defined, and Fleet National Bank, as Trustee, will be issued
to evidence the loans made to Holdings of the proceeds from the issuance by the
Trust of the preferred securities referred to in the definition of "Refinancing
Securities" and the common securities of the FMC Trust contemplated by clause
(xvi) of the definition of Permitted Investments.
B. Except as modified hereby, all of the terms and provisions of the
Credit Agreement (and Exhibits and Schedules) remain in full force and effect.
C. 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.
D. 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.
E. 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.
COMPANY: NATIONAL MEDICAL CARE, INC.,
a Delaware corporation
By /s/ Dr. Gerd Krick
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Name: Dr. Gerd Krick
Title: Chairman
FRESENIUS MEDICAL CARE AG
By /s/ Dr. Gerd Krick
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Name: Dr. Gerd Krick
Title: Chairman of the Managing Board
By /s/ Udo Werle
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Name: Udo Werle
Title: Member of the Managing Board
PAYING AGENT: NATIONSBANK, N.A.,
as Paying Agent for and on behalf of the Lenders
By /s/ Ashley M. Crabtree
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Ashley M. Crabtree
Vice President
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