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Exhibit 4.10
AMENDMENT NO. 8
THIS AMENDMENT NO. 8, dated as of June 30, 1999 (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 Lenders identified therein, and NationsBank, N.A., as
Paying Agent;
WHEREAS, the Company has requested 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. Section 8.1 of the Credit Agreement is hereby amended by deleting the
word "and" from the end of clause (i) thereof, deleting the period from the end
of clause (vi) thereof and inserting "; and" in its place and inserting the
following immediately thereafter as a new clause (n):
"(n) in addition to other indebtedness permitted by this Section
8.1, Indebtedness of Holdings and its Subsidiaries owed to Fresenius AG or
any of its Subsidiaries in an aggregate principal amount not to exceed
$400 million at any time outstanding; provided, that such Indebtedness
shall be subordinated to the Obligations on terms no less favorable to the
Lenders than the terms of the subordinated debt related to and included
within the definition of Refinancing Securities, the Additional Subdebt,
and the related guaranties; it being understood and agreed that any
Indebtedness that has been subordinated to the payment of the Obligations
pursuant to the provisions hereof shall not be considered a
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Subordinated Debt Transaction for purposes of Section 3.3 or Subordinated
Debt for purposes of Section 8.9."
2. The Lenders hereby waive compliance with the provisions of the Credit
Agreement as in effect before the execution and delivery of this Amendment No. 8
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.
3. This Amendment shall be effective upon receipt by the Paying Agent of
(i) copies of this Amendment executed by the Company and the other members of
the Consolidated Group identified on the signature pages hereto, and (ii) the
consent of the Required Lenders to this Amendment.
4. Except as modified hereby, all of the terms and provisions of the
Credit Agreement (and Exhibits and Schedules) remain in full force and effect.
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. 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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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/ Ben Lipps
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Name: Ben Lipps
Title: President
FRESENIUS MEDICAL CARE AG
By /s/ Dr. Emanuele Gotti
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Name: Dr. Emanuele Gotti
Title: Member of the Board of Management
By /s/ Dr. Werner Brandt
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Name: Dr. Werner Brandt
Title: Member of the Board of Management
NMC DO BRASIL LTDA.,
a Brazil corporation
By /s/ Joao Pedrinelli
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Name: Joao Pedrinelli
Title: Member of the Board of Directors
NATIONAL MEDICAL CARE OF SPAIN, S.A.,
a Spanish corporation
By /s/ Dr. Emanuele Gotti /s/ Dr. Andrea Stopper
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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
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NMC CENTRO MEDICO NACIONAL, LDA.,
a Portuguese corporation
By /s/ Ricardo Da Silva /s/ John Allen
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Name: Ricardo Da Silva, John Allen
Title: Board Members
FRESENIUS MEDICAL CARE ARGENTINA, S.A.,
as successor by merger to
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/ Ben Lipps
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Name: Ben Lipps
Title: President
FRESENIUS MEDICAL CARE DEUTSCHLAND GmbH,
a German corporation
By /s/ Dr. Emanuele Gotti
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Name: Dr. Emanuele Gotti
Title: Board Member
By /s/ Dr. Werner Brandt
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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/ Heinz Henrici
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Name: Udo Werle Heinz Henrici
Title: Board Members
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FRESENIUS MEDICAL CARE HOLDING, S.p.A.,
an Italian corporation
By /s/ Dr. Emanuele Gotti /s/ Dr. Andrea Stopper
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Name: Dr. Emanuele Gotti Dr. Andrea Stopper
Title: Board Members
FRESENIUS MEDICAL CARE ESPANA S.A.,
a Spanish corporation
By /s/ Dr. Emanuele Gotti /s/ Manuel Gluete
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Name: Dr. Emanuel Gotti Manuel Gluete
Title: Board Members
FRESENIUS MEDICAL CARE MAGYAROSZA KfG,
a Hungarian corporation
By /s/ Norman Erhard
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Name: Norman Erhard
Title: Board Member
GUARANTORS: FRESENIUS MEDICAL CARE HOLDINGS, INC.,
a New York corporation formerly known as WRG-NY
By /s/ Ben Lipps
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Name: Ben Lipps
Title: President
NATIONAL MEDICAL CARE, INC.,
a Delaware corporation
By /s/ Ben Lipps
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Name: Ben Lipps
Title: President
BIO-MEDICAL APPLICATIONS MANAGEMENT CO.,
INC., a Delaware corporation
By /s/ Marc Lieberman
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Name: Marc Lieberman
Title: Assistant Treasurer
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LIFECHEM, INC.,
a Delaware corporation
By /s/ Marc Lieberman
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Name: Marc Lieberman
Title: Assistant Treasurer
FRESENIUS MEDICAL CARE AG,
a German corporation
By /s/ Dr. Emanuele Gotti
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Name: Dr. Emanuele Gotti
Title: Member of the Management Board
By /s/ Dr. Werner Brandt
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Name: Dr. Werner Brandt
Title: Member of the Management Board
FRESENIUS USA, INC.,
a Massachusetts corporation
By /s/ Ben Lipps
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Name: Ben Lipps
Title: President
FRESENIUS MEDICAL CARE DEUTSCHLAND
GmbH, a German corporation
By /s/ Dr. Emanuele Gotti
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Name: Dr. Emanuele Gotti
Title: Board Member
By /s/ Dr. Werner Brandt
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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/ Udo Werle /s/ Heinz Henrici
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Name: Udo Werle Heinz Henrici
Title: Board of Directors
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FRESENIUS SECURITIES, INC.,
a California corporation
By /s/ Ben Lipps
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Name: Ben Lipps
Title: President
NEOMEDICA, INC.,
a Delaware corporation
By /s/ Gary Scher
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Name: Gary Scher
Title: Vice-President
FMC FINANCE S.A.,
a Luxembourg corporation
By /s/ John Allen
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Name: John Allen
Title: Board Member
FMC TRUST FINANCE S.a.r.l. LUXEMBOURG,
a Luxembourg corporation
By /s/ Dr. Andrea Stopper
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Name: Dr. Andrea Stopper
Title: Board Member
PAYING AGENT: NATIONSBANK, N.A.,
as Paying Agent for and on behalf of the Lenders
By /s/ Ashley M. Crabtree
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Name: Ashley M. Crabtree
Title: Senior Vice President
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CONSENT TO AMENDMENT NO. 8
NationsBank, N.A., as Paying Agent
101 N. Tryon Street, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attn: Cindy Harmon, 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., as Paying Agent. Terms used but not otherwise
defined shall have the meanings provided in the Credit Agreement.
Amendment No. 8 dated June 30, 1999 (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: