exv4w2



 







    Exhibit 4.2



 



    AMENDMENT NO. 1



 



    Dated as of June 26, 2007



 



    To that Certain



 



    TERM LOAN CREDIT AGREEMENT



 



    Dated as of March 31, 2006



 



    among



 



    FRESENIUS MEDICAL CARE AG & Co. KGaA,



 



    FRESENIUS MEDICAL CARE HOLDINGS, INC.



 



    and the other Borrowers and Guarantors identified therein,



 



    BANK OF AMERICA, N.A.,




    as Administrative Agent,



 



    DEUTSCHE BANK AG NEW YORK BRANCH,




    as Sole Syndication Agent,



 



    THE BANK OF NOVA SCOTIA,




    CREDIT SUISSE, CAYMAN ISLANDS BRANCH,




    and




    JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,




    as Co-Documentation Agents,



 



    and



 



    THE LENDERS PARTY THERETO



 



    BANC OF AMERICA SECURITIES LLC




    and




    DEUTSCHE BANK SECURITIES INC.,




    as Joint Lead Arrangers and Book Running Managers



 












 







    AMENDMENT
    NO. 1
    



 



    THIS AMENDMENT NO. 1, dated as of June 26, 2007 (this
    “Amendment”), of that certain Term Loan Credit
    Agreement referenced below is by and among FRESENIUS MEDICAL
    CARE AG & Co. KGaA, a German partnership limited by
    shares (“FMCAG”), FRESENIUS MEDICAL CARE
    HOLDINGS, INC., a New York corporation
    (“FMCH”), and the other Borrowers identified
    herein, the Guarantors identified herein, the Lenders party
    hereto and BANK OF AMERICA, N.A., as Administrative Agent.
    Capitalized terms used but not otherwise defined herein shall
    have the meanings provided in the Term Loan Credit Agreement.



 




    W I T N E
    S S E T H



 



    WHEREAS, a $1.0 billion revolving credit facility has been
    established pursuant to the terms of that certain Bank Credit
    Agreement (as amended and modified, the “Bank Credit
    Agreement”) and a $3.6 billion term loan credit
    facility, consisting of a $1.85 billion Tranche A Term
    Loan and a $1.75 billion Tranche B Term Loan, has been
    established pursuant to the terms of that certain Term Loan
    Credit Agreement (as amended and modified, the “Term
    Loan Credit Agreement”), in each case, dated as of
    March 31, 2006 by and among FMCAG, FMCH, and certain
    subsidiaries and affiliates as borrowers and guarantors
    identified therein, the lenders identified therein and Bank of
    America, N.A., as Administrative Agent and Collateral Agent;



 



    WHEREAS, the Borrowers have requested amendment of the terms of
    the Term Loan Credit Agreement to increase the aggregate amount
    of certain Indebtedness permitted under the Term Loan Credit
    Agreement;



 



    WHEREAS, the Lenders have agreed to the requested amendment on
    the terms and conditions set forth herein and have directed the
    Administrative Agent to enter into this Amendment on their
    behalf;



 



    NOW, THEREFORE, in consideration of these premises and other
    good and valuable consideration, the receipt and sufficiency of
    which is hereby acknowledged, the parties agree as follows:



 



    1. Amendment of the Term Loan Credit
    Agreement.  Subject to the terms and
    conditions set forth herein, the Term Loan Agreement is amended
    as follows:



 



    1.1 Subsection (g) of Section 8.01 of the Term
    Loan Credit Agreement is amended as follows:



 



    ‘‘(g) senior Funded Debt of FMCAG and its
    Subsidiaries in an aggregate principal amount at any time
    outstanding of up to



 



    (i) $500 million in senior notes, plus



 



    (ii) an additional amount of $700 million (or the
    Dollar Equivalent thereof on the date on which the amount is
    fixed, to the extent that any such Indebtedness is denominated
    other than in Dollars), provided that not more than
    $550 million of such additional amount under this
    clause (ii) may be issued, assumed or guaranteed by the
    Credit Parties generally;”



 



    1.2 The lead-in language in the first sentence of
    clause (c) of Section 2.06 of the Term Loan Agreement
    immediately preceding the proviso is amended to read
    “Voluntary prepayments shall be applied to the Term Loans
    as specified by the Borrowers . . . .”



 



    2. Conditions Precedent.  This
    Amendment shall become effective upon satisfaction of the
    following conditions, in form and substance reasonably
    satisfactory to the Administrative Agent:



 



    (a) receipt by the Administrative Agent of executed copies
    of the consent and direction letter to this Amendment from the
    Required Lenders;



 



    (b) receipt by the Administrative Agent of executed copies
    of the signature pages to this Amendment from the Credit Parties;



 



    (d) Amendment No. 1 to the Bank Credit Agreement shall
    be effective; and



 



    (e) payment of all fees and expenses (including fees and
    expenses of counsel to the Administrative Agent) in connection
    with this Amendment.













 






    The Administrative Agent will promptly notify the Credit Parties
    and the Lenders when the conditions to the effectiveness of the
    amendment provisions of Section 1 of this Amendment
    have been met and will confirm that those provisions are
    effective. The provisions of Section 1 shall not be
    effective until the Administrative Agent shall have given such
    confirmation.



 



    3. Representations and Warranties;
    Defaults.  The Credit Parties affirm the
    following:



 



    (a) all necessary action to authorize the execution,
    delivery and performance of this Amendment has been taken;



 



    (b) after giving effect to this Amendment, the
    representations and warranties set forth in the Term Loan Credit
    Agreement and the other Credit Documents are true and correct in
    all material respects as of the date hereof (except those which
    expressly relate to an earlier period); and



 



    (c) immediately before and immediately after giving effect
    to this Amendment, no Default or Event of Default shall exist.



 



    4. Guarantor Acknowledgment.  Each
    Guarantor acknowledges and consents to all of the terms and
    conditions of this Amendment and agrees that this Amendment and
    all documents executed in connection herewith do not operate to
    reduce or discharge any Guarantor’s obligations under the
    Credit Documents.



 



    5. Full Force and Effect.  Except
    as modified hereby, all of the terms and provisions of the Term
    Loan Credit Agreement and the other Credit Documents (including
    schedules and exhibits thereto) shall remain in full force and
    effect.



 



    6. Expenses.  The Borrower agrees
    to pay all reasonable costs and expenses of the Administrative
    Agent in connection with the preparation, execution and delivery
    of this Amendment, including the reasonable fees and expenses of
    Moore & Van Allen PLLC.



 



    7. Counterparts.  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. Delivery
    by any party hereto of an executed counterpart of this Amendment
    by facsimile shall be effective as such party’s original
    executed counterpart.



 



    8. Governing Law.  This Amendment
    shall be governed by, and construed in accordance with, the laws
    of the State of New York applicable to agreements made and to be
    performed entirely within such state.



 




    [REMAINDER
    OF PAGE INTENTIONALLY LEFT BLANK]
    




    

    2








 






    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 AND GUARANTORS:
    


	
 
	
    FRESENIUS MEDICAL CARE AG
    & Co. KGaA, a
    German partnership limited by shares, represented by
    FRESENIUS MEDICAL CARE MANAGEMENT AG, a German
    corporation, its general partner
    









 



    By: ­
    ­Name:

    Title:



 


 



    By: ­
    ­Name:

    Title:



 



    FMC FINANCE S.à r.l. LUXEMBOURG-V, a

    private limited company (société à
    responsabilité limitée) organized under the

    laws of Luxembourg



 


 



    By: ­
    ­Name:

    Title:




    

    3








 





	 	 	 
	

    BORROWER AND GUARANTOR:
    


	
 
	
    FRESENIUS MEDICAL CARE
    HOLDINGS, INC.,
    a New York corporation
    









 



    By: ­
    ­Name:

    Title:




    

    4








 





	 	 	 
	

    BORROWER AND GUARANTOR:
    


	
 
	
    FRESENIUS MEDICAL CARE NORTH
    AMERICA HOLDINGS LIMITED
    PARTNERSHIP,

    a Delaware limited partnership
    









 


			
	 	    By: 
	
    Fresenius Medical Care US

    Vermögensverwaltungs GmbH and Co. KG, a

    German limited partnership





    Its General Partner



 


 


			
	 	    By: 
	
    Fresenius Medical Care

    Vermögensverwaltungs GmbH, a

    German limited liability company





    Its General Partner



 


			
	 	    By: 
	
    






    Name:

    Title:




    

    5








 






    CO-BORROWERS AND GUARANTORS:



 



    NATIONAL MEDICAL CARE, INC., a Delaware corporation




    BIO-MEDICAL APPLICATIONS OF ALABAMA, INC., a Delaware
    corporation




    BIO-MEDICAL APPLICATIONS OF CALIFORNIA, INC., a Delaware
    corporation




    BIO-MEDICAL APPLICATIONS OF FLORIDA, INC., a Delaware
    corporation




    BIO-MEDICAL APPLICATIONS OF GEORGIA, INC., a Delaware
    corporation




    BIO-MEDICAL APPLICATIONS OF ILLINOIS, INC., a Delaware
    corporation




    BIO-MEDICAL APPLICATIONS OF INDIANA, INC., a Delaware
    corporation




    BIO-MEDICAL APPLICATIONS OF KENTUCKY, INC., a Delaware
    corporation




    BIO-MEDICAL APPLICATIONS OF LOUISIANA, LLC, a Delaware
    limited liability company




    BIO-MEDICAL APPLICATIONS OF MICHIGAN, INC., a Delaware
    corporation




    BIO-MEDICAL APPLICATIONS OF MINNESOTA, INC., a Delaware
    corporation




    BIO-MEDICAL APPLICATIONS OF MISSISSIPPI, INC., a Delaware
    corporation




    BIO-MEDICAL APPLICATIONS OF NEW HAMPSHIRE, INC., a
    Delaware corporation




    BIO-MEDICAL APPLICATIONS OF NEW JERSEY, INC., a Delaware
    corporation




    BIO-MEDICAL APPLICATIONS OF NEW MEXICO, INC., a Delaware
    corporation




    BIO-MEDICAL APPLICATIONS OF NORTH CAROLINA, INC., a
    Delaware corporation




    BIO-MEDICAL APPLICATIONS OF OHIO, INC., a Delaware
    corporation




    BIO-MEDICAL APPLICATIONS OF PENNSYLVANIA, INC., a
    Delaware corporation




    BIO-MEDICAL APPLICATIONS OF SOUTH CAROLINA, INC., a
    Delaware corporation




    BIO-MEDICAL APPLICATIONS OF TENNESSEE, INC., a Delaware
    corporation




    BIO-MEDICAL APPLICATIONS OF TEXAS, INC., a Delaware
    corporation




    BIO-MEDICAL APPLICATIONS OF WEST VIRGINIA, INC., a
    Delaware corporation




    BIO-MEDICAL APPLICATIONS OF VIRGINIA, INC., a Delaware
    corporation




    FRESENIUS USA MANUFACTURING, INC., a Delaware corporation




    FRESENIUS USA MARKETING, INC., a Delaware corporation




    FRESENIUS USA, INC., a Massachusetts corporation




    SAN DIEGO DIALYSIS SERVICES, INC., a Delaware corporation




    SPECTRA LABORATORIES, INC., a Nevada corporation




    WSKC DIALYSIS SERVICES, INC., an Illinois corporation




    EVEREST HEALTHCARE INDIANA, INC., an Indiana corporation



 


 


			
	    By: 
	
    

	 




    Name:

    Title:




    

    6








 





	 	 	 
	

    GUARANTORS:
    


	
 
	
    FRESENIUS MEDICAL CARE
    DEUTSCHLAND GmbH, a
    German limited liability company
    









 


			
	 	    By: 
	
    






    Name:

    Title:



 


 


			
	 	    By: 
	
    






    Name:

    Title:



 



    FRESENIUS MEDICAL CARE

    BETEILIGUNGSGESELLSCHAFT mbH, a German limited liability
    company



 


			
	 	    By: 
	
    






    Name:

    Title:



 


			
	 	    By: 
	
    






    Name:

    Title:



 


 



    FRESENIUS MEDICAL CARE US

    BETEILIGUNGSGESELLSCHAFT mbH, a German

    limited liability company



 


			
	 	    By: 
	
    






    Name:

    Title:




    

    7








 





	 	 	 
	

    GUARANTORS:
    


	
 
	
    FRESENIUS MEDICAL CARE US ZWEI
    BETEILIGUNGSGESELLSCHAFT
    mbH, a German limited
    liability company
    









 


			
	 	    By: 
	
    






    Name:

    Title:



 



    FRESENIUS MEDICAL CARE US DREI

    BETEILIGUNGSGESELLSCHAFT mbH,

    a German limited liability company



 


			
	 	    By: 
	
    






    Name:

    Title:



 



    FMC TRUST FINANCE S.à r.l. LUXEMBOURG, a

    private limited company (société à
    responsabilité limitée) organized under the laws of
    Luxembourg



 


			
	 	    By: 
	
    






    Name:

    Title:



 



    FMC FINANCE II S.à r.l., a private limited company
    (société à responsabilité limitée)
    organized under the laws of Luxembourg



 


			
	 	    By: 
	
    






    Name:

    Title:



 


			
	 	    By: 
	
    






    Name:

    Title:




    

    8








 





	 	 	 
	

    GUARANTORS:
    


	
 
	
    FMC TRUST FINANCE S.à r.l.
    LUXEMBOURG-III, a
    private limited company (société à
    responsabilité limitée) organized under the laws of
    Luxembourg
    









 


			
	 	    By: 
	
    






    Name:

    Title:



 



    FMC FINANCE S.à r.l. LUXEMBOURG-IV,

    a private limited company (société à
    responsabilité limitée) organized under the laws of
    Luxembourg



 


			
	 	    By: 
	
    






    Name:

    Title:



 



    NATIONAL MEDICAL CARE OF SPAIN, S.A., a corporation
    (sociedad anónima) organized under the laws of Spain



 


			
	 	    By: 
	
    






    Name:

    Title:



 


			
	 	    By: 
	
    






    Name:

    Title:



 



    

    9








 





	 	 	 
	

    GUARANTORS:
    


	
 
	
    BIO-MEDICAL APPLICATIONS
    MANAGEMENT COMPANY,
    INC., a Delaware
    corporation
    

	
 
	
 
	
    NMC A,
    LLC, a Delaware limited
    liability company
    

	
 
	
 
	
    BIO-MEDICAL APPLICATIONS OF
    ARIZONA, INC., a
    Delaware corporation
    

	
 
	
 
	
    BIO-MEDICAL APPLICATIONS OF
    MAINE, INC., a
    Delaware corporation
    

	
 
	
 
	
    EVEREST HEALTHCARE HOLDINGS,
    INC, a Delaware
    corporation
    

	
 
	
 
	
    FRESENIUS MANAGEMENT SERVICES,
    INC, a Delaware
    corporation
    

	
 
	
 
	
    FMS NEW YORK, INC.,
    a Delaware corporation
    RENAL CARE GROUP, INC., a Delaware corporation
    

	
 
	
 
	
    DIALYSIS CENTERS OF
    AMERICA-ILLINOIS, INC.,
    an Illinois corporation
    

	
 
	
 
	
    STAT DIALYSIS
    CORPORATION, a Delaware
    corporation
    

	
 
	
 
	
    RENAL CARE GROUP OF THE
    MIDWEST, INC., a Kansas
    corporation
    

	
 
	
 
	
    BIO-MEDICAL APPLICATIONS OF
    MARYLAND, INC., a
    Delaware corporation
    

	
 
	
 
	
    FRESENIUS SECURITIES,
    INC., a California
    corporation
    

	
 
	
 
	
    SRC HOLDING
    COMPANY, INC., a
    Delaware corporation
    









 


			
	 	    By: 
	
    






    Name:

    Title:




    10








 





	 	 	 
	

    ADMINISTRATIVE AGENT:
    


	
 
	
    BANK OF AMERICA,
    N.A., for itself in its
    capacities as Administrative Agent and Collateral Agent and on
    behalf of the Lenders
    









 


			
	 	    By: 
	
    






    Name:

    Title:




    

    11