exv4w3



 




EXHIBIT 4.3




AMENDED AND RESTATED SUBORDINATED LOAN NOTE




$400,000,000




AS OF MARCH 31, 2006



     
FOR VALUE RECEIVED, National Medical Care, Inc., a Delaware
corporation, Bio-Medical Applications of Alabama, Inc., a
Delaware corporation, Bio-Medical Applications of Connecticut,
Inc., a Delaware corporation, Bio-Medical Applications of
Fayetteville, 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 Indiana, Inc., a
Delaware corporation, Bio-Medical Applications of Jersey City,
Inc., a Delaware corporation, Bio-Medical Applications of
Kentucky, Inc., a Delaware corporation, Bio-Medical Applications
of Louisiana, Inc., a Delaware corporation, Bio-Medical
Applications of Maryland, Inc., a Delaware corporation,
Bio-Medical Applications of Massachusetts, Inc., a Delaware
corporation, Bio-Medical Applications of Mississippi, Inc., a
Delaware corporation, Bio-Medical Applications of Missouri,
Inc., a Delaware corporation, Bio-Medical Applications of New
Jersey, 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 Oklahoma, 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, and Bio-Medical Applications of
Virginia, Inc., a Delaware corporation, Bio-Medical Applications
of Wisconsin, Inc., a Delaware corporation, (collectively, the
“Borrowers”) jointly and severally promise to
pay to the order of Fresenius AG, a German corporation, or its
specified subsidiary, (the “Lender”) the lesser
of (i) the principal amount of $400,000,000 (Four Hundred
Million Dollars), or (ii) the unpaid principal amount of
all Advances (as defined in Section 2) made by the Lender
to the Borrowers hereunder, together with interest accrued
thereon at the rate set forth below, on the date specified for
repayment of such Advance pursuant to Clause 3 hereof or
such earlier date as such amounts may become payable pursuant to
the terms hereof.



     
1. This Note amends and restates the Subordinated Loan Note
dated as of May 18, 1999, issued to the Lender by the
borrowers party thereto, as amended and in effect on the date
hereof (the “Existing Note”). All
“Advances” as defined in and outstanding under the
Existing Note on the date hereof shall continue as Advances
hereunder.



     
2. The following terms used in this Note shall have the
following meanings:






		
	 	     
    “FMC Credit Agreements” means (i) the Bank Credit
    Agreement among FMC and FMCH, as borrowers and guarantors, the
    other borrowers and guarantors party thereto, the lenders party
    thereto, 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,
    Dresdner Bank AG, Niederlassung Luxembourg and JPMorgan Chase
    Bank, National Association, as Co-Documentation Agents, Banc of
    America Securities LLC and Deutsche Bank Securities Inc., as
    Joint Lead Arrangers and Book Running Managers, as amended,
    restated, supplemented, or otherwise modified, or renewed,
    refunded, replaced, or refinanced from time to time, and
    (ii) the Term Loan Credit Agreement among FMC and
    FMCH, as borrowers and guarantors, the other borrowers and
    guarantors party thereto, the lenders party thereto, 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, Dresdner Bank AG,
    Niederlassung Luxembourg and JPMorgan Chase Bank, National
    Association, as Co-Documentation Agents, Banc of America
    Securities LLC and Deutsche Bank Securities Inc., as Joint Lead
    Arrangers and Book Running Managers, as amended, restated,
    supplemented, or otherwise modified, or renewed, refunded,
    replaced, or refinanced from time to time.
	 
	 	     
    “FMC” means Fresenius Medical Care AG & Co.
    KGaA, a German partnership limited by shares, and its successors
    and permitted assigns.
	 
	 	     
    “FMCH” means Fresenius Medical Care Holdings, Inc., a
    New York corporation, and its successors and permitted assigns.







 






		
	 	     
    “1998
    77/8%
    NOTES” means the
    77/8
    % USD Senior Subordinated Notes due 2008 of FMC issued
    pursuant to that certain Senior Subordinated Indenture dated as
    of February 19, 1998 by and among FMC Trust Finance
    S.a.r.l. Luxembourg, as issuer, State Street Bank and Trust
    Company), as trustee, and the Guarantors named therein, as
    guarantors, as it may be further amended, restated,
    supplemented, or otherwise modified, or renewed, refunded,
    replaced, or refinanced from time to time.
	 
	 	     
    “1998
    73/8%
    NOTES” means the
    77/8
    % DM Senior Subordinated Notes due 2008 of FMC issued
    pursuant to that certain Senior Subordinated Indenture dated as
    of February 19, 1998 by and among FMC Trust Finance
    S.a.r.l. Luxembourg, as issuer, State Street Bank and Trust
    Company), as trustee, and the Guarantors named therein, as
    guarantors, as it may be further amended, restated,
    supplemented, or otherwise modified, or renewed, refunded,
    replaced, or refinanced from time to time.
	 
	 	     
    “2001
    77/8%
    NOTES” means the
    77/8
    % USD Senior Subordinated Notes due 2011 of FMC issued
    pursuant to that certain Senior Subordinated Indenture dated as
    of June 6, 2001 by and among FMC Trust Finance
    S.a.r.l. Luxembourg, as issuer, State Street Bank and Trust
    Company), as trustee, and the Guarantors named therein, as
    guarantors, as it may be further amended, restated,
    supplemented, or otherwise modified, or renewed, refunded,
    replaced, or refinanced from time to time.
	 
	 	     
    “2001
    73/8%
    NOTES” means the
    73/8
    % Euro Senior Subordinated Notes due 2011 of FMC issued
    pursuant to that certain Senior Subordinated Indenture dated as
    of June 15, 2001 by and among FMC Trust Finance
    S.a.r.l. Luxembourg, as issuer, State Street Bank and Trust
    Company), as trustee, and the Guarantors named therein, as
    guarantors, as it may be further amended, restated,
    supplemented, or otherwise modified, or renewed, refunded,
    replaced, or refinanced from time to time.
	 
	 	     
    All other capitalized terms used but not otherwise defined
    herein shall bear the meanings assigned thereto in the FMC
    Credit Agreements.



     
3. The Lender may lend (but shall not have any commitment
to lend) one or more advances (each an
“Advance”) to the Borrowers jointly and
severally from time to time upon request during the period from
the date hereof to but excluding March 31, 2011 in an
aggregate amount which shall not exceed $400,000,000. Amounts
borrowed hereunder may be repaid and reborrowed. The Lender
shall have no obligation to make any Advance requested hereunder.



     
4. Each Advance shall be repaid in full on the date that is
one, two or three months after the date on which it is made, as
agreed by the Borrowers and the Lender on the date such Advance
is made, or any other period agreed between the Borrowers and
the Lender; provided, that if no maturity date is so agreed,
such Advance shall have a term of one month.



     
5. The unpaid principal amount of each Advance made
hereunder shall bear interest at a fluctuating rate per annum
equal to the Eurocurrency Rate (as defined in and calculated
pursuant to the FMC Credit Agreements) for an Interest Period
equivalent to the term of such Advance plus a margin, determined
pursuant to the pricing matrix set forth below, that is based on
the Consolidated Leverage Ratio (as defined in and calculated
pursuant to the FMC Credit Agreements), and shall change as and
when the Applicable Percentage (as defined in and calculated
pursuant to the FMC Credit Agreements) changes:




	 	 	 	 	 	 	 
	Pricing Level	 	Consolidated Leverage Ratio	 	Margin	
	 	 	 	 	 	
	
    
    *

    	 	
    ≤*:*	 	 	*	%
	
    
    *

    	 	
    >*:* but ≤ *:*	 	 	*	%
	
    
    *

    	 	
    >*:* but ≤ *:*	 	 	*	%
	
    
    *

    	 	
    >*:* but ≤ *:*	 	 	*	%
	
    
    *

    	 	
    >*:* but ≤ *:*	 	 	*	%
	
    
    *

    	 	
    >*:*	 	 	*	%





Interest shall be payable in arrears upon maturity, on any
prepayment and on any acceleration of the principal amount
hereof and shall be computed on the basis of a
360-day year for the
actual number of days elapsed (including the first day and
excluding the last day).




 







		
	* 	
    Confidential treatment has been requested as to the omitted
    portions of this document in accordance with the applicable
    rules of the Securities and Exchange Commission.



2






 



    
6. Whenever any payment on this Note shall be stated to be
due on a day which is not a Business Day or is a day on which
commercial banks are authorized or required by law to close in
the Federal Republic of Germany, such payment shall be made on
the next succeeding Business Day on which commercial banks are
not authorized or required by law to close in the Federal
Republic of Germany, and such extension of time shall be
included in the computation of the payment of interest on this
Note.



     
7. All payments of principal and interest in respect of
this Note shall be made in lawful money of the United States in
same day funds to the Lender’s Dollar account no: * with
Dresdner Bank Bad Homburg v.d.H., bank code: 50080000, SWIFT
code: DRESDEFF.



     
8. THE BORROWERS HEREBY COVENANT AND AGREE, AND THE
LENDER, BY ITS ACCEPTANCE HEREOF, HEREBY COVENANTS AND AGREES,
THAT, TO THE EXTENT AND IN THE MANNER HEREINAFTER SET FORTH THE
PAYMENT OF THE PRINCIPAL OF THE INDEBTEDNESS EVIDENCED HEREBY
AND ANY INTEREST PAYABLE IN RESPECT THEREOF ARE HEREBY EXPRESSLY
MADE SUBORDINATE AND SUBJECT IN RIGHT OF PAYMENT TO THE PRIOR
PAYMENT IN FULL OF ALL AMOUNTS THEN DUE AND PAYABLE IN RESPECT
OF (I) ALL OBLIGATIONS OF THE BORROWERS UNDER THE FMC
CREDIT AGREEMENTS, (II) IF ANY BORROWER SHALL GUARANTY THE
1998
77/8%
NOTES, THE 1998
73/8%
NOTES, the 2001
77/8%
NOTES and the 2001
73/8%
NOTES ALL “SENIOR INDEBTEDNESS” OF SUCH BORROWER
(AS SUCH TERM IS DEFINED IN THE INDENTURES PURSUANT TO WHICH
SUCH NOTES ARE ISSUED), AND (III) ALL “SENIOR
INDEBTEDNESS” OF ANY BORROWER AS DEFINED IN ANY OTHER TRUST
PREFERRED DEBT (AS DEFINED IN THE FMC CREDIT AGREEMENTS) THAT IS
GUARANTEED BY SUCH BORROWER OR ANY OTHER DEBT THAT IS PARI PASSU
THERETO THAT IS GUARANTEED BY SUCH BORROWER (COLLECTIVELY, THE
“PREFERRED INDEBTEDNESS”).



     
8. It is hereby further specifically provided that the
indebtedness evidenced hereby shall rank pari passu with the
1998
77/8% Notes,
the 1998
73/8% Notes,
the 2001
77/8% Notes,
the 2001
73/8
% Notes or any other debt that is pari passu thereto
in right of payment and the obligations (if any) of the
Borrowers in respect thereof, in each case to the extent and
only to the extent required by the terms of such debt; provided,
however, that this provision shall not affect the relative
rights (if any) of the holders of the Notes against the
Borrowers other than their rights in relation to the Lender
hereunder.



     
9. If a payment or distribution is made to the Lender in
respect of this Note that, in accordance with Clause 7
above, should not have been made, the Lender agrees that it
shall hold such payment or distribution in trust for the holders
of the Preferred Indebtedness and pay such payment or
distribution over to such holders of Preferred Indebtedness as
their interests may appear.



     
10. If any Bankruptcy Event shall occur with respect to the
Borrowers, all amounts of principal and accrued interest
outstanding under this Note shall become immediately due and
payable.



     
11. The Lender agrees, by its acceptance hereof, that
before disposing of this Note or any part hereof it will make a
notation hereon of all Advances, the maturity date of each such
Advance and principal payments previously made hereunder and of
the date to which interest hereon has been paid; provided,
however, that the failure to make a notation of any Advance or
any payment made on this Note shall not limit or otherwise
affect the obligation of the Borrowers hereunder with respect to
payments of principal or interest on this Note.



     
12. Any Borrower may cease to be a Borrower hereunder by
delivering a written notice to the Lender, effective on the
later to occur of (i) the date the Lender receives such
written notice and (ii) the date such Borrower has paid all
of its obligations and all accrued and unpaid interest, fees and
other obligations hereunder or in connection herewith.



     
13. Upon the formation, acquisition (other receipt of
interests) or existence of any Material Domestic Subsidiary of
FMCH that is not a Borrower hereunder, such Material Domestic
Subsidiary may become a Borrower hereunder by executing an
amendment to this Note.




 







		
	* 	
    Confidential treatment has been requested as to the omitted
    portions of this document in accordance with the applicable
    rules of the Securities and Exchange Commission.



3






 



     
14. THIS NOTE AND THE OBLIGATIONS OF THE BORROWERS
ARISING HEREUNDER AND ALL OTHER ASPECTS HEREOF SHALL BE DEEMED
TO BE MADE UNDER, SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF NEW YORK WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES.



     
15. The obligations of the Borrowers arising under this
Note may be prepaid in whole or in part, together with all
accrued interest thereon, without penalty or premium with the
Net Proceeds of any Equity Transaction, or with the prior
consent of the Lender.



     
16. The terms of this Note are subject to amendment only by
a writing signed by the Borrowers and the Lender.



     
17. In no event shall any interest be payable under this
Note to the extent that the payment thereof would be prohibited
by applicable law.



     
18. The Borrowers hereby waives diligence, presentment,
protest, demand and notice of every kind and, to the full extent
permitted by law, the right to plead any statute of limitations
as a defense to any demand hereunder.



     
19. No delay on the part of the Lender in the exercise of
any right or remedy shall operate as a waiver thereof, and no
single or partial exercise by the Lender, of any right or remedy
shall preclude any other or further exercise of any other right
or remedy.



     
20. In case any provision in or obligation under this Note
shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or
impaired thereby.



4







 



     
IN WITNESS WHEREOF, this Note has been executed as of the day
and year and at the place first written above.






		
	 	
    NATIONAL MEDICAL CARE, INC.
	 
	 	
    BIO-MEDICAL APPLICATIONS OF
	 	
    ALABAMA, INC.
	 
	 	
    BIO-MEDICAL APPLICATIONS OF
	 	
    CONNECTICUT, INC.
	 
	 	
    BIO-MEDICAL APPLICATIONS OF
	 	
    FAYETTEVILLE, INC.
	 
	 	
    BIO-MEDICAL APPLICATIONS OF
	 	
    FLORIDA, INC.
	 
	 	
    BIO-MEDICAL APPLICATIONS OF
	 	
    GEORGIA, INC.
	 
	 	
    BIO-MEDICAL APPLICATIONS OF
	 	
    INDIANA, INC.
	 
	 	
    BIO-MEDICAL APPLICATIONS OF
	 	
    JERSEY CITY, INC.
	 
	 	
    BIO-MEDICAL APPLICATIONS OF
	 	
    KENTUCKY, INC.
	 
	 	
    BIO-MEDICAL APPLICATIONS OF
	 	
    LOUISIANA, INC.
	 
	 	
    BIO-MEDICAL APPLICATIONS OF
	 	
    MARYLAND, INC.
	 
	 	
    BIO-MEDICAL APPLICATIONS OF
	 	
    MASSACHUSETTS, INC.
	 
	 	
    BIO-MEDICAL APPLICATIONS OF
	 	
    MISSISSIPPI, INC.
	 
	 	
    BIO-MEDICAL APPLICATIONS OF
	 	
    MISSOURI, INC.






			
	 	By: 	
    /s/ Mark Fawcett



		
	 	
     

	 	
    Name: Mark Fawcett



			
	 	Title:	
    Treasurer for each of the foregoing



5







 






		
	 	
    BIO-MEDICAL APPLICATIONS OF
	 	
    NEW JERSEY, INC.
	 
	 	
    BIO-MEDICAL APPLICATIONS OF
	 	
    NORTH CAROLINA, INC.
	 
	 	
    BIO-MEDICAL APPLICATIONS OF
	 	
    OHIO, INC.
	 
	 	
    BIO-MEDICAL APPLICATIONS OF
	 	
    OKLAHOMA, INC.
	 
	 	
    BIO-MEDICAL APPLICATIONS OF
	 	
    PENNSYLVANIA, INC.
	 
	 	
    BIO-MEDICAL APPLICATIONS OF
	 	
    SOUTH CAROLINA, INC.
	 
	 	
    BIO-MEDICAL APPLICATIONS OF
	 	
    TEXAS, INC.
	 
	 	
    BIO-MEDICAL APPLICATIONS OF
	 	
    VIRGINIA, INC.
	 
	 	
    BIO-MEDICAL APPLICATIONS OF
	 	
    WISCONSIN, INC.






			
	 	By: 	
    /s/ Mark Fawcett



		
	 	
     

	 	
    Name: Mark Fawcett



			
	 	Title:	
    Treasurer for each of the foregoing



6







 




ACKNOWLEDGED AND AGREED:




FRESENIUS AG






		
	By: 	
    /s/ Karl Dieter Schwab




 





Name: ppa. Dr. Karl-Dieter Schwab



		
	Title:	
    Procurist






		
	By: 	
    /s/ Dietmar Blumenhagen




 





Name: ppa. Dr. Dietmar Blumenhagen



		
	Title:	
    Procurist



7







 




TRANSACTIONS ON PROMISSORY NOTE




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Amount of		 	Maturity Date		 	Amount of		 	Amount of		 	Outstanding		 	 
	 	 	Advance Made		 	of Such		 	Principal Paid		 	Interest Paid		 	Principal Balance		 	Notation Made	
	Date	 	This Date		 	Advance		 	This Date		 	This Date		 	This Date		 	By	
	 	 	 		 	 		 	 		 	 		 	 		 	 	




8