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EXHIBIT 4.11
AMENDMENT NO. 9
THIS AMENDMENT NO. 9, dated as of December 15, 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 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 Lenders identified therein, and NationsBank, N.A. (now
known as Bank of America, 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. The Credit Agreement is amended and modified in the following
respects:
1.1 In Section 1.1,
(a) the definition of "Consolidated Fixed Charges" is
hereby amended by inserting the words "(other than any amounts paid
during such period as a result of the audit of the German tax liability
of Holdings in respect of deductions taken in respect of the writing
down of Holdings' investment in certain subsidiaries for German tax
purposes only as of December 31, 1997)" after the words "PLUS Federal,
state, local and other domestic and foreign income taxes paid during
such period" in the sixth line thereof, and by deleting the words "PLUS
the amount of Government Reimbursement Program Costs paid during such
period" from the tenth and eleventh lines thereof.
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(b) the definition of "Exclusion Event" is hereby
amended by inserting the words "(other than any member of the
Consolidated Group that either ceased operations or discontinued a
material portion of its business or operations before September 30,
1999)" after the words "one or more members of the Consolidated Group"
in clause (i) thereof.
(c) the definition of "Permitted Liens" is hereby
amended by deleting the "and" at the end of clause (xiv), replacing the
"." at the end of clause (xv) with "; and", and adding the following at
the end thereof as a new clause (xvi) thereto:
"(xvi) Liens created or deemed to exist by the
establishment of trusts for the purpose of satisfying (x)
Governmental Reimbursement Program Costs, (y) other actions or
claims pertaining to the same or related matters and (z) other
claims or actions against the Company; PROVIDED that the
Company, in each case, shall have established adequate
reserves for such claims or actions; PROVIDED, further that
the contributions to the trust in respect of such the actions
or claims described in clause (z) shall not exceed $60 million
at any time."
1.2 In Section 7.9, the financial covenants for the
Consolidated Leverage Ratio and the Consolidated Fixed Charge Coverage
Ratio in subsections (b) and (c), respectively, are hereby amended to
read as follows:
(b) CONSOLIDATED LEVERAGE RATIO. There shall be
maintained as of the end of each fiscal quarter to occur
during the periods shown, a Consolidated Leverage Ratio of not
greater than:
December 31, 1998 through December 30, 2000 3.75:1.00
December 31, 2000 through December 30, 2001 3.25:1.00
December 31, 2001 and thereafter 3.00:1.00
(c) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. There
shall be maintained, as of the end of each fiscal quarter to
occur during the periods shown, a Consolidated Fixed Charge
Coverage Ratio of at least:
December 31, 1998 through December 30, 1999 1.2:1.0
December 31, 1999 and thereafter 1.1:1.0
2. It is hereby understood and agreed that notwithstanding their
characterization, the trusts described in clause (xvi) of the definition of
Permitted Liens shall be permitted under the Credit Agreement. In furtherance of
the foregoing and not in limitation thereof, it is hereby understood and agreed
that they shall not in any circumstances be considered Material Subsidiaries
under the Credit Agreement and the transfer of assets thereto shall be permitted
pursuant to Section 8.4 and, if characterized as an Investment, shall be deemed
to be a Permitted Investment.
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3. The Lenders hereby waive compliance with the provisions of the
Credit Agreement as in effect before the execution and delivery of this
Amendment No. 9 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.
4. 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 twenty basis points (0.20%)
of the aggregate amount of the Commitments held by the Lenders
consenting to this Amendment for the ratable benefit of such consenting
Lenders.
5. Except as modified hereby, all of the terms and provisions of
the Credit Agreement (and Exhibits and Schedules) remain in full force and
effect.
6. 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.
7. 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.
8. 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.
9. 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
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Name: Ramon Yi
Title: Treasurer
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 Management
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/ Ramon Yi
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Name: Ramon Yi
Title: Treasurer
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/ Dr. Emanuele Gotti
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Name: Udo Werle Dr. Emanuele Gotti
Title: Board Members
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FRESENIUS MEDICAL CARE HOLDING, S.p.A.,
an Italian corporation
By: /s/ Dr. Emanuele Gotti /s/ Andrea Stopper
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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
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Name: Ricardo Davel 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
BIO-MEDICAL APPLICATIONS OF
ALABAMA, INC.
By: /s/ James V. Luther
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Name: James V. Luther
Title: Assistant Treasurer
BIO-MEDICAL APPLICATIONS OF
FLORIDA, INC.
By: /s/ James V. Luther
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Name: James V. Luther
Title: Assistant Treasurer
BIO-MEDICAL APPLICATIONS OF
GEORGIA, INC.
By: /s/ James V. Luther
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Name: James V. Luther
Title: Assistant Treasurer
BIO-MEDICAL APPLICATIONS OF
INDIANA, INC.
By: /s/ James V. Luther
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Name: James V. Luther
Title: Assistant Treasurer
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BIO-MEDICAL APPLICATIONS OF
KENTUCKY, INC.
By: /s/ James V. Luther
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Name: James V. Luther
Title: Assistant Treasurer
BIO-MEDICAL APPLICATIONS OF
LOUISIANA, INC.
By: /s/ James V. Luther
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Name: James V. Luther
Title: Assistant Treasurer
BIO-MEDICAL APPLICATIONS OF
MARYLAND, INC.
By: /s/ James V. Luther
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Name: James V. Luther
Title: Assistant Treasurer
BIO-MEDICAL APPLICATIONS OF
MASSACHUSETTS, INC.
By: /s/ James V. Luther
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Name: James V. Luther
Title: Assistant Treasurer
BIO-MEDICAL APPLICATIONS OF
NORTH CAROLINA, INC.
By: /s/ James V. Luther
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Name: James V. Luther
Title: Assistant Treasurer
BIO-MEDICAL APPLICATIONS OF
OHIO, INC.
By: /s/ James V. Luther
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Name: James V. Luther
Title: Assistant Treasurer
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BIO-MEDICAL APPLICATIONS OF
PENNSYLVANIA, INC.
By: /s/ James V. Luther
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Name: James V. Luther
Title: Assistant Treasurer
BIO-MEDICAL APPLICATIONS OF
SOUTH CAROLINA, INC.
By: /s/ James V. Luther
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Name: James V. Luther
Title: Assistant Treasurer
BIO-MEDICAL APPLICATIONS OF
TEXAS, INC.
By: /s/ James V. Luther
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Name: James V. Luther
Title: Assistant Treasurer
BIO-MEDICAL APPLICATIONS OF
VIRGINIA, INC.
By: /s/ James V. Luther
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Name: James V. Luther
Title: Assistant Treasurer
LIFECHEM, INC.,
a Delaware corporation
By: /s/ Ramon Yi
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Name: Ramon Yi
Title: Treasurer
GUARANTORS: FRESENIUS MEDICAL CARE HOLDINGS, INC.,
a New York corporation formerly known as WRG-NY
By: /s/ Ramon Yi
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Name: Ramon Yi
Title: Treasurer
NATIONAL MEDICAL CARE, INC.,
a Delaware corporation
By: /s/ Ramon Yi
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Name: Ramon Yi
Title: Treasurer
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BIO-MEDICAL APPLICATIONS MANAGEMENT CO.,
INC., a Delaware corporation
By: /s/ Ramon Yi
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Name: Ramon Yi
Title: Treasurer
FRESENIUS MEDICAL CARE AG,
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 USA, INC.,
a Massachusetts corporation
By: /s/ Ramon Yi
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Name: Ramon Yi
Title: Treasurer
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/ Dr. Udo Werle /s/ Dr. Emanuele Gotti
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Name: Dr. Udo Werle Emanuele Gotti
Title: Board Members
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FRESENIUS SECURITIES, INC.,
a California corporation
By: /s/ Ramon Yi
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Name: Ramon Yi
Title: Treasurer
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/ Andrea Stopper
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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
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Ashley M. Crabtree
Senior Vice President
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CONSENT TO AMENDMENT NO. 9
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. 9 dated December __, 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,
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[Name of Lender]
By:__________________________
Name:
Title: