EXHIBIT 4.15
AMENDMENT NO. 13
THIS AMENDMENT NO. 13, dated as of December 17, 2001 (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 as follows:
1. The Credit Agreement is amended and modified in the following
respects:
1.1 In Section 1.1, the definition of "Permitted
Investments" is hereby amended by renumbering the last clause thereof
clause (xxiii) and inserting the following immediately prior thereto as
a new clause (xxii):
(xxii) Investments by Holdings or any Subsidiary of
Holdings in the Refinancing Securities.
1.2 In Section 7.9, the Consolidated Leverage Ratio
covenant in subsection (b) is 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, 2000 through December 30, 2002 3.25:1.00
December 31, 2002 and thereafter 3.00:1.00
1.3 Clause (iii) of Section 8.1(d) is hereby deleted in
its entirety and the following is substituted therefore as a new clause
(iii):
"(iii) the total amount of all such Indebtedness
shall not exceed $300 million outstanding at any time."
1.4 Clause (b) of Section 8.9 is hereby amended by
inserting the following proviso at the end thereof:
"; PROVIDED, that Holdings and its Subsidiaries may at any
time and from time to time prepay, repurchase, redeem, defease
or otherwise acquire or retire all or any of the Refinancing
Securities as long as no Default or Event of Default shall
have occurred and be continuing or shall be caused thereby."
1.5 Clauses (a) and (b) of Section 8.10 are hereby
deleted in their entirety and the following substituted therefor as a
new Section 8.10:
"Neither Holdings nor the Company will make or permit any
Restricted Payments, unless and to the extent that (i) no
Default or Event of Default shall exist on a Pro Forma Basis
after giving effect thereto, and (ii) the amount of Restricted
Payments shall not in any event exceed in any fiscal year (a)
with respect to Holdings, the amount set forth on Schedule
8.10, and (b) with respect to the Company, not more than 50%
of Consolidated Net Income of the Company for the prior fiscal
year; PROVIDED, that, without regard to the amounts set forth
above, Holdings and its Subsidiaries may purchase, repurchase,
redeem, defease or otherwise acquire or retire all or any of
the Refinancing Securities."
1.6 In Section 8.11, [Sale Leasebacks] is hereby amended
by deleting the reference to "$200 million" in clause (y) thereof, and
replacing it with a reference to "$300 million".
2. 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 in an amount equal to twelve and
one-half basis points (0.125%) of the aggregate amount of Commitments
held by the Lenders consenting to this Amendment for the ratable
benefit of such consenting Lenders.
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.
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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/ Marc Lieberman
----------------------------------------------
Name: Marc Lieberman
Title: Treasurer
FRESENIUS MEDICAL CARE AG
By /s/ Emanuele Gatti
----------------------------------------------
Name: Dr. Emanuele Gatti
Title:
By /s/ Roberto Fuste
----------------------------------------------
Name: Roberto Fuste
Title:
NMC DO BRASIL LTDA.,
a Brazil corporation
By /s/ Horst Radke /s/ Armin Karch
----------------------------------------------
Name: Horst Radtke / Armin Karch
Title:
NATIONAL MEDICAL CARE OF SPAIN, S.A.,
a Spanish corporation
By /s/ Emanuele Gatti
----------------------------------------------
Name: Dr. Emanuele Gatti
Title:
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 Da Silva /s/ John Allen
----------------------------------------------
Name: Ricardo Da Silva / John Allen
Title:
FRESENIUS MEDICAL CARE ARGENTINA, S.A.,
as successor by merger to
NMC DE ARGENTINA, S.A.,
an Argentine corporation
By /s/ Guido Yagupsky /s/ Horst Radtke
----------------------------------------------
Name: Dr. Guido Yagupsky / Horst Radtke
Title:
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:
By /s/ Norbert Weber
----------------------------------------------
Name: Norbert Weber
Title:
FRESENIUS MEDICAL CARE GROUPE FRANCE
(formerly known as Fresenius Groupe France
S.A.), a French corporation
By /s/ Udo Werle /s/ Emanuele Gatti
----------------------------------------------
Name: Udo Werle / Dr. Emanuele Gatti
Title:
FRESENIUS MEDICAL CARE HOLDING, S.p.A.,
an Italian corporation
By /s/ Emanuele Gatti /s/ Rolf Groos
----------------------------------------------
Name: Dr. Emanuele Gatti / Rolf Groos
Title:
FRESENIUS MEDICAL CARE ESPANA S.A.,
a Spanish corporation
By /s/ Emanuele Gatti
----------------------------------------------
Name: Dr. Emanuele Gatti
Title:
FRESENIUS MEDICAL CARE MAGYAROSZA KfG,
a Hungarian corporation
By /s/ Norman Erhard
------------------------------------------
Name: Norman Erhard
Title:
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:
Title:
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/ Emanuele Gatti
----------------------------------------------
Name: Dr. Emanuele Gatti
Title:
By /s/ Roberto Fuste
----------------------------------------------
Name: Roberto Fuste
Title:
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:
By /s/ Norbert Weber
------------------------------------------
Name: Norbert Weber
Title:
FRESENIUS MEDICAL CARE GROUPE
FRANCE, a French corporation
(formerly known as Fresenius Groupe
France S.A.)
By /s/ Udo Werle /s/ Emanuele Gatti
----------------------------------------------
Name: Udo Werle / Dr. Emanuele Gatti
Title:
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:
FMC TRUST FINANCE S.a.r.l. LUXEMBOURG,
a Luxembourg corporation
By /s/ Andrea Stopper
----------------------------------------------
Name: Andrea Stopper
Title:
FMC TRUST FINANCE S.a.r.l. LUXEMBOURG III,
a Luxembourg corporation
By /s/ Gabriele Dux
------------------------------------------
Name: Gabriele Dux
Title:
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_________________________________
Name:
Title:
CONSENT TO AMENDMENT NO. 13
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. 13 dated November __, 2001 (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: