Exhibit 10.1
AMENDMENT NO. 4
Dated as of October 20, 2005
to
THIRD AMENDED AND RESTATED
Dated as of October 23, 2003
THIS AMENDMENT NO. 4 (this “
Amendment”)
dated as of October 20, 2005 is entered into by and among
(i) NMC FUNDING CORPORATION, a Delaware corporation (the
“
Transferor”), (ii) NATIONAL MEDICAL CARE,
INC., a Delaware corporation, as collection agent (the
“
Collection Agent”), (iii) the
“Conduit Investors,” “Bank Investors” and
“Administrative Agents” identified on the signature
pages hereto and (iv) WESTLB AG,
NEW YORK BRANCH, as agent
(the “
Agent”).
PRELIMINARY STATEMENTS
A. The Transferor, the Collection Agent, the Conduit
Investors, the Bank Investors, the Administrative Agents and the
Agent are parties to that certain Third Amended and Restated
Transfer and Administration Agreement dated as of
October 23, 2003 (as amended or otherwise modified prior to
the date hereof, the “
TAA”). Capitalized terms
used herein and not otherwise defined shall have the meanings
ascribed to them in the TAA.
B. The parties hereto have agreed to amend the TAA on the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises set forth
above, and other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Amendments to TAA. Effective as of
the Effective Date (as defined below), the TAA is amended as
follows:
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1.1 The definition of “Commitment Termination
Date” in Section 1.1 of the TAA is amended to change
the date set forth therein from “October 20,
2005” to “October 19, 2006.” |
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1.2 The definition of “FMCAG” in Section 1.1
of the TAA is amended to read as follows: |
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“‘FMCAG’ means Fresenius Medical Care AG,
a corporation organized and existing under the laws of the
Federal Republic of Germany, including such entity after its
transformation into a KGaA (Kommanditgesellschaft auf
Aktien), and its successors and permitted assigns.” |
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1.3 The definition of “FMCAG Bank Revolver” in
Section 1.1 is deleted in its entirety. |
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1.4 Each reference in the TAA to “FMCAG Bank
Revolver” is deleted and replaced by a reference to
“FMCAG Credit Facility.” |
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1.5 The following new definition is added to
Section 1.1 of the TAA in appropriate alphabetical order: |
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“‘FMCAG Credit Facility’ means the Amended
and Restated Credit Agreement dated as of February 21, 2003
among FMCAG, FMCH and FMC Finance II S.à.x.x, as
borrowers, the guarantors party thereto, the lenders party
thereto, and Bank of America, N.A., as Administrative Agent, as
amended, restated, supplemented, modified, renewed, refunded,
replaced or refinanced and in effect at any time, including by
the agreements evidencing the $5 billion credit facility
FMCAG is anticipated to enter into in connection with the
acquisition of Renal Care Group, Inc.” |
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1.6 Clause (iv) of the definition of “Net
Receivables Balance” in Section 1.1 of the TAA is
amended to read as follows: |
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“(iv) the aggregate amount by which the Outstanding
Balance of all Eligible Receivables originated by any member of
the Spectra Renal Management Group exceeds 7.5% of Eligible
Receivables, plus” |
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1.7 The definition of “Termination Date” in
Section 1.1 of the TAA is amended to change the date set
forth in clause (v) thereof from “October 20,
2005” to “October 19, 2006.” |
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1.8 The definition of “Voting Stock” in
Section 1.1 of the TAA is amended to read as follows: |
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“‘Voting Stock’ shall mean with respect to
any Person, any capital stock or other equity interests issued
by such Person which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors,
managing general partners or its equivalent of such Person, or,
where no board of directors, managing general partners or its
equivalent exists and where management control of such Person is
controlled through the ownership of capital stock or other
equity interests, the right to vote for or assert such
management control, even though the right to vote for the
election of directors (or the right to vote for or assert
management control) has been suspended by the happening of such
a contingency.” |
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1.8 The following new definitions are added to
Section 1.1 of the TAA in appropriate alphabetical order: |
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“Change of Control” means (i) if FMCAG is
a corporate entity other than a KGaA (Kommanditgesellschaft
auf Aktien), any transaction or series of transactions in
which any “person” or “group” (within the
meaning of Rule 13d-5 under the Securities Exchange Act of
1934, and the rules and regulations thereunder (the
“Exchange Act”) and Section 13(d) and
14(d) of the Exchange Act) other than Fresenius AG and its
subsidiaries acquires all or substantially all of FMCAG’s
assets or becomes the direct or indirect “beneficial
owner” (as defined in Rule 13d-3 under the Exchange
Act), by way of merger, consolidation, other business
combination or otherwise, of greater than the Change of Control
Percentage of the total voting power (on a fully diluted basis
as if all convertible securities had been converted and all
options and warrants had been exercised) entitled to vote in the
election of directors of FMCAG or the surviving Person (if other
than FMCAG) and (ii) if FMCAG has become a KGaA
(Kommanditgesellschaft auf Aktien), if the general
partner of the KGaA charged with management of FMCAG shall at
any time fail to be a Subsidiary of Fresenius AG, or if
Fresenius AG shall fail at any time to own and control more than
twenty-five percent (25%) of the Voting Stock of FMCAG. |
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“Change of Control Percentage” means the
greater of (a) thirty-five percent (35%) or (b) the
percentage of Voting Stock in FMCAG held and owned by Fresenius
AG. |
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1.9 The first two sentences of Section 3.1(y) are
amended to read as follows: |
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“FMCAG owns, directly or indirectly through a wholly-owned
Subsidiary, all of the issued and outstanding common stock of
(and such stock comprises more than 80% of the Voting Stock of)
FMCH, free and clear of any Adverse Claim except to the extent
such stock is pledged in connection with the FMCAG Credit
Facility or is subject to put/call agreements, forward
agreements or other similar arrangements among FMCAG and its
subsidiaries. All of the issued and outstanding stock of each
Originating Entity is owned directly or indirectly by FMCH, free
and clear of any Adverse Claim except to the extent such stock
is pledged in connection with the FMCAG Credit Facility or is
subject to put/call agreements, forward agreements or other
similar arrangements among FMCAG and its subsidiaries; provided,
however, that FMCAG may own directly or indirectly stock that is
not Voting Stock in subsidiaries of FMCH.” |
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1.10 Section 7.1(r) is amended to read as follows: |
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“(i) the Seller shall cease to own, free and clear of
any Adverse Claim all of the outstanding shares of capital stock
of the Transferor on a fully diluted basis; or (ii) FMCH
shall cease to own, directly or indirectly, free and clear of
any Adverse Claim, (other than a pledge made pursuant to the
FMCAG Credit Facility and put/call agreements, forward
agreements or other similar arrangements among FMCAG and its
subsidiaries), all of the outstanding shares of capital stock of
any of the Originating Entities or the Collection Agent on a
fully diluted basis; provided that FMCAG may own directly or
indirectly stock that is not Voting Stock in subsidiaries of
FMCH; or (iii) FMCAG shall cease to own, directly or
indirectly, free and clear of any Adverse Claim (other than a
pledge made pursuant to the FMCAG Credit Facility and put/call
agreements, forward agreements or other similar arrangements
among FMCAG and its subsidiaries), all of the Voting Stock of
FMCH other than the preferred stock of FMCH outstanding as of
the date hereof (which preferred stock outstanding as of the
date hereof shall not represent more than 20% of the total
Voting Stock of FMCH); or (iv) a Change of Control shall
occur; or” |
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1.11 Section 7.1(p) is amended to read as follows: |
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“the Default Ratio for any month exceeds 9.0%;” |
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1.12 The account number set forth in Section 10.3,
below the information for the Notice to Transferor, is amended
to read “Account 000-0-00000” |
SECTION 2. Consent to Amendment of Receivables
Purchase Agreement and Amendment of the Parent Agreement.
Each of the parties hereto hereby acknowledges and consents to
the execution and delivery of (i) the amendment to the
Receivables Purchase Agreement in the form attached as
Exhibit A, to be entered into by and between the Transferor
and the Seller as of October 20, 2005 and (ii) the
amendment to the Parent Agreement in the form attached as
Exhibit B, to be entered into by and between the parties to
such Parent Agreement.
SECTION 3. Conditions Precedent. This Amendment
shall become effective and be deemed effective as of the date
hereof (the “Effective Date”) subject to the
satisfaction of the following conditions:
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(a) the Agent shall have received counterparts of this
Amendment duly executed by the Transferor, the Collection Agent,
the Conduit Investors, the Bank Investors, the Administrative
Agents and the Agent; and |
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(b) to the extent requested by any Conduit Investor, such
Conduit Investor shall have received confirmation from each
applicable Rating Agency that the execution and delivery of this
Amendment will not result in the reduction or withdrawal of the
then current ratings of its Commercial Paper. |
SECTION 4. Covenants, Representations and Warranties of
the Transferor and the Collection Agent.
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4.1 Upon the effectiveness of this Amendment, each of the
Transferor and the Collection Agent hereby reaffirms all
covenants, representations and warranties made by it in the TAA
and agrees that all such covenants, representations and
warranties shall be deemed to have been remade as of the
effective date of this Amendment. |
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4.2 Each of the Transferor and the Collection Agent hereby
represents and warrants that (i) this Amendment constitutes
the legal, valid and binding obligation of such party,
enforceable against it in accordance with its terms and
(ii) upon the effectiveness of this Amendment, no
Termination Event or Potential Termination Event shall exist
under the TAA. |
SECTION 5. Reference to and Effect on the TAA.
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5.1 Upon the effectiveness of this Amendment, each
reference in the TAA to “this Agreement,”
“hereunder,” “hereof,” “herein,”
“hereby” or words of like import shall mean and be a
reference to the TAA as amended hereby, and each reference to
the TAA in any other document, instrument and agreement executed
and/or delivered in connection with the TAA shall mean and be a
reference to the TAA as amended hereby. |
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5.2 Except as specifically amended hereby, the TAA and all
other documents, instruments and agreements executed and/or
delivered in connection therewith shall remain in full force and
effect and are hereby ratified and confirmed. |
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5.3 The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or
remedy of any Investor, any Administrative Agent or the Agent
under the TAA or any other document, instrument, or agreement
executed in connection therewith, nor constitute a waiver of any
provision contained therein. |
SECTION 6.
Governing Law. THIS AMENDMENT SHALL
BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS
(AS OPPOSED TO THE CONFLICT OF LAW PROVISIONS) AND DECISIONS OF
THE STATE OF
NEW YORK.
SECTION 7. Execution in Counterparts. This
Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which
when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the
same instrument. Delivery of an executed counterpart of this
Amendment by facsimile shall be equally as effective as delivery
of an original executed counterpart of this Amendment. Any party
delivering an executed counterpart of this Amendment by
facsimile shall also deliver an original executed counterpart of
this Amendment but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability and
binding effect of this Amendment.
SECTION 8. Headings. Section headings in this
Amendment are included herein for convenience of reference only
and shall not constitute a part of this Amendment for any other
purpose.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto
duly authorized as of the date first written above.
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NMC FUNDING CORPORATION, |
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as Transferor |
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NATIONAL MEDICAL CARE, INC., |
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as Collection Agent |
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PARADIGM FUNDING LLC, |
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as a Conduit Investor |
Signature Page
Amendment No. 4 to Third Amended and Restated
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WESTLB AG, NEW YORK BRANCH, as Agent, |
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an Administrative Agent and as a Bank Investor |
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GIRO MULTI-FUNDING CORPORATION, |
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as a Conduit Investor |
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BAYERISCHE LANDESBANK, NEW YORK |
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BRANCH, as an Administrative Agent |
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By: |
/s/ Xxxxxxxxx Xxxxxxx |
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Title: |
Senior Vice President |
Signature Page
Amendment No. 4 to Third Amended and Restated
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BAYERISCHE LANDESBANK, CAYMAN ISLANDS |
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BRANCH, as a Bank Investor |
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Title: |
First Vice President |
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LIBERTY STREET FUNDING CORP., |
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as a Conduit Investor |
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By: |
/s/ Xxxxxxx X. Xxxxxx |
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THE BANK OF NOVA SCOTIA, as an |
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Administrative Agent and as a Bank Investor |
Signature Page
Amendment No. 4 to Third Amended and Restated
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LANDESBANK HESSEN-THUERINGEN |
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GIROZENTRALE, as a Bank Investor |
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Title: |
Senior Vice President |
Signature Page
Amendment No. 4 to Third Amended and Restated
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