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EXHIBIT 10.1
AMENDMENT NO. 3
THIS AMENDMENT NO. 3, dated as of June 13, 1997 (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 certain modifications described
herein which 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. The definition of "Consolidated Net Worth" in Section 1.1
is amended to read as follows:
"CONSOLIDATED NET WORTH" means total stockholders' equity of
the Consolidated Group, in each case on a consolidated basis as
determined in accordance with GAAP applied on a consistent basis, BUT
EXCLUDING for purposes hereof foreign currency translation adjustments
of up to $80,000,000 at any time.
2. Clause (C) of Section 3.3(b)(ii) is amended to read as
follows:
(C) fifty percent (50%) of the excess of (1) the Net Proceeds
of any Equity Transaction over (2) the portion of such Net Proceeds
used to finance an acquisition or Capital Expenditure permitted under
Section 8.4(d) or to repay Indebtedness existing under Section 8.1(i);
3. Clause (iii) of Section 7.1(b)(iii) is deleted in its
entirety and replaced with the following:
(iii) [Intentionally Omitted]
4. Subsection (i) of Section 8.1 is amended to read as
follows:
(i) in addition to other Indebtedness permitted by this
Section 8.1, Indebtedness of the Company and its Subsidiaries of up to
(i) until December 31, 1998, $200,000,000 in the aggregate principal
amount at any time outstanding, (ii) from January 1, 1999 to December
31, 1999, $175,000,000 in the aggregate principal amount at any time
outstanding and (iii) from January 1, 2000 and thereafter, $150,000,000
in the aggregate principal amount at any time outstanding, PROVIDED
THAT amounts in excess of $50,000,000 must be specifically subordinated
in right of payment to the Obligations during the continuance of a
Default or Event of Default hereunder on terms reasonably acceptable to
the Paying Agent.
5. Clauses (A) and (B) of Section 8.4(d) concerning
Consolidation, Merger, Sale or Purchase of Assets and Capital Expenditures are
amended to read as follows:
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(A) the aggregate cost of any individual acquisition referred
to in subsection (d)(i) or (d)(ii) or Capital Expenditures referenced
in subsection (d)(iii) shall not exceed the sum of (i) $100,000,000
PLUS (ii) any portion of the Net Proceeds of an Equity Transaction used
therefore occurring no more than three (3) months prior to or three (3)
months after the respective individual acquisition or respective
Capital Expenditure;
(B) the aggregate cost of all such acquisitions referred to in
subsection (d)(i) or (d)(ii) and Capital Expenditures referred to in
subsection (d)(iii) shall not in any calendar year exceed an amount
equal to the sum of (i) $400,000,000 PLUS (ii) the amount of Net
Proceeds from Asset Dispositions retained by the Credit Parties in
accordance with the provisions of Section 3.3(b) PLUS (iii) any portion
of Net Proceeds of an Equity Transaction used therefor occurring no
more than three (3) months prior to or three (3) months after the
respective acquisition or capital expenditure, PROVIDED that all
acquisitions and capital expenditures made with a portion of the Net
Proceeds from the Equity Transaction in November, 1996 (FMC Preference
Shares) retained in accordance with the provisions of Section 3.3(b)
(constituting approximately $80 million in the fourth quarter of 1996,
and approximately $171 million in the first quarter of 1997) shall not
be subject to the foregoing limitation;
6. Clause (B) of Section 8.10(b)(ii) is amended to read as
follows:
(B) with respect to the Company, not more than 37.5% of the
Consolidated Net Income of the Company for the prior fiscal year.
7. Schedule 7.2(b) is hereby amended in its entirety to read
as Schedule 7.2(b) attached hereto.
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
Xxxxx & Xxx Xxxxx, 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 its
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.
BORROWERS: NATIONAL MEDICAL CARE, INC.,
a Delaware corporation
By /s/ Xxx Xxxxx
------------------------------------------
Name: Xxx Xxxxx
Title: President
FRESENIUS MEDICAL CARE AG
By /s/ Xxxx Xxxxx
------------------------------------------
Name: Xxxx Xxxxx
Title: Management Board Member
By /s/ Xxx Xxxxx
------------------------------------------
Name: Xxx Xxxxx
Title: Management Board Member
NMC DO BRASIL LTDA.,
a Brazil corporation
By /s/ Xxxx Xxxxxxxxxx
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Name: Xxxx Xxxxxxxxxx
Title: General Manager
NATIONAL MEDICAL CARE OF SPAIN, S.A.,
a Spanish corporation
By /s/ Xxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
NATIONAL MEDICAL CARE OF TAIWAN, INC.,
a Delaware corporation
By /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Manager Director
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NMC CENTRO MEDICO NACIONAL, LDA.,
a Portuguese corporation
By /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Managing Director
NMC DE ARGENTINA, S.A.,
an Argentine corporation
By /s/ Xxxx Xxxxxxxxxx
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Name: Xxxx Xxxxxxxxxx
Title: General Manager
FRESENIUS USA, INC.,
a Massachusetts corporation
By /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
Title: President
FRESENIUS MEDICAL CARE DEUTSCHLAND GmbH,
a German corporation
By /s/ Xxxx Xxxxx By: /s/ Xxxxxxx Xxxxxxxxxxx
------------------------------------------ ----------------------------------
Name: Xxxx Xxxxx Name: Xxxxxxx Xxxxxxxxxxx
Title: Chief Executive Officer Title: Treasurer
FRESENIUS MEDICAL CARE GROUPE FRANCE
(formerly known as Fresenius Groupe
France S.A.), a French corporation
By /s/ Xxx Xxxxx
------------------------------------------
Name: Xxx Xxxxx
Title: Board Member
FRESENIUS MEDICAL CARE HOLDING, S.p.A.,
an Italian corporation
By /s/ X. Xxxxx
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Name: X. Xxxxx
Title: Board Member
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FRESENIUS MEDICAL CARE ESPANA S.A.,
a Spanish corporation
By /s/ X. Xxxxx
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Name: X. Xxxxx
Title: Board Member
FRESENIUS MEDICAL CARE MAGYAROSZA KfG,
a Hungarian corporation
By /s/ X. Xxxxxx
------------------------------------------
Name: X. Xxxxxx
Title: Board Member
PAYING AGENT: NATIONSBANK, N.A.,
as Paying Agent for and on behalf of the
Lenders
By /s/ Xxxxxx X. Xxxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxxx
Senior Vice President
GUARANTORS: FRESENIUS NATIONAL MEDICAL CARE
HOLDINGS, INC., a New York corporation
formerly known as WRG-NY
By /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
Title: President
NATIONAL MEDICAL CARE, INC.,
a Delaware corporation
By /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
Title: President
BIO-MEDICAL APPLICATIONS MANAGEMENT CO.,
INC., a Delaware corporation
By /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: President
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NMC HOMECARE, INC.,
a Delaware corporation
By /s/ Xxxxxxx X. Sicilian
------------------------------------------
Name: Xxxxxxx X. Sicilian
Title: Vice President
LIFECHEM, INC.,
a Delaware corporation
By /s/ Xxxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: President
FRESENIUS MEDICAL CARE AG,
a German corporation
By /s/ Xxxx Xxxxx By:/s/ Xxxxxxx Xxxxxxxxxxx
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Name: Xxxx Xxxxx Name: Xxxxxxx Xxxxxxxxxxx
Title: Chief Executive Officer Title: Treasurer
FRESENIUS USA, INC.,
a Massachusetts corporation
By /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
Title: President
FRESENIUS MEDICAL CARE DEUTSCHLAND
GmbH, a German corporation
By /s/ Xxxx Xxxxx By:/s/ Xxxxxxx Xxxxxxxxxxx
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Name: Xxxx Xxxxx Name: Xxxxxxx Xxxxxxxxxxx
Title: Chief Executive Officer Title: Treasurer
FRESENIUS MEDICAL CARE GROUPE
FRANCE, a French corporation
(formerly known as Fresenius Groupe
France S.A.)
By /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
Title: Board Member
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FRESENIUS SECURITIES, INC.,
a California corporation
By /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
Title: President
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CONSENT TO AMENDMENT NO. 3
NationsBank, N.A., as Paying Agent
000 X. Xxxxx Xxxxxx, 15th Floor
NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxx, 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. 3 dated June __, 1997 (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:
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SCHEDULE 7.2(b)
FORM OF OFFICER'S COMPLIANCE CERTIFICATE
This Certificate is delivered in accordance with the provisions of
Section 7.2(b) of that Credit Agreement dated as of September 27, 1996 (as
amended, modified and supplemented, the "CREDIT AGREEMENT") among NATIONAL
MEDICAL CARE, INC., a Delaware corporation, and certain subsidiaries and
affiliates (the "BORROWERS"), the Guarantors identified therein, the Lenders and
NationsBank, N.A., as Paying Agent. Terms used but not otherwise defined herein
shall have the meanings provided in the Credit Agreement.
The undersigned, being a Responsible Officer of NATIONAL MEDICAL CARE,
INC., a Delaware corporation, hereby certifies, in my official capacity and not
in my individual capacity, that to the best of my knowledge and belief:
(a) the financial statements accompanying this Certificate
fairly present the financial condition of the parties covered by such
financial statements in all material respects;
(b) during the period the Borrowers have observed or performed
all of their covenants and other agreements in all material respects,
and satisfied in all material respects every material condition,
contained in this Credit Agreement to be observed, performed or
satisfied by them;
(c) the undersigned has no actual knowledge of any Default or
Event of Default;
(d) detailed calculations demonstrating compliance with the
financial covenants set out in Section 7.9 of the Credit Agreement
accompany this Certificate; and
(e) a description of transactions and activity under
Section 8.4 of the Credit Agreement is attached.
This the __________ day of __________________, 19___.
--------------------------------
Title:
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1. Description of transactions of dissolution, liquidation or winding up.
Sec. 8.4(a).
2. Description of transactions of merger or consolidation. Sec. 8.4(b).
3. Description of transactions of sale, lease, transfer or other
disposition. Sec. 8.4(c).
4. Description of Acquisitions (including by way of merger and
consolidation) and Capital Expenditures. Sec. 8.4(d).
a. Description of each transaction:
b. Description of Asset Dispositions, Equity
Transactions and Subordinated Debt Transactions.
c. Demonstration of Pro Forma Compliance.
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