AMENDMENT NO. 1 Dated as of July 10, 2009 to FOURTH AMENDED AND RESTATED TRANSFER AND ADMINISTRATION AGREEMENT Dated as of October 16, 2008
Exhibit 10.3
AMENDMENT
NO. 1
Dated as of July 10, 2009
to
FOURTH AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
Dated as of October 16, 2008
Dated as of July 10, 2009
to
FOURTH AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
Dated as of October 16, 2008
THIS AMENDMENT NO. 1 (this “Amendment”)
dated as of July 10, 2009 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 Fourth Amended and Restated
Transfer and Administration Agreement dated as of
October 16, 2008 (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. In addition, 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. Subject to the conditions precedent
set forth in Section 2 below and effective as of the
Effective Date (also as defined below), the TAA is hereby
amended as follows:
1.1 The definition of “Commitment Termination
Date” in Section 1.1 of the TAA is amended
change the date set forth therein from “October 15,
2009” to “January 15, 2010.”
Section 2. Conditions
Precedent. This Amendment shall become
effective and be deemed effective as of the date hereof (the
“Effective Date”) subject to the Agent’s
receipt of the following, each in form and substance
satisfactory to each Administrative Agent:
(a) counterparts of this Amendment duly executed by the
Transferor, the Collection Agent, the Conduit Investors, the
Bank Investors, the Administrative Agents and the Agent;
(b) a reaffirmation of the Parent Agreement, substantially
in the form of Exhibit A attached hereto, duly executed by
each of FMCAG and FMCH;
(c) confirmation that all fees due and payable by the
Transferor on or before the Effective Date have been paid in
full; and
(d) such other documents, instruments, certificates and
opinions as the Agent or any Administrative Agent shall
reasonably request.
Section 3. Covenants,
Representations and Warranties of the Transferor and the
Collection Agent.
3.1 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.
3.2 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 4. Reference
to and Effect on the TAA.
4.1 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.
4.2 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.
4.3 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 5. 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 6. 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 or
e-mail 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 or
e-mail 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 7. 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.
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.
NMC FUNDING CORPORATION,
as Transferor
as Transferor
| By: |
|
Name: Xxxx Xxxxxxx
| Title: | Vice President and Treasurer |
NATIONAL MEDICAL CARE, INC., as
Collection Agent
Collection Agent
| By: |
|
Name: Xxxx Xxxxxxx
| Title: | Vice President and Treasurer |
PARADIGM FUNDING LLC,
as a Conduit Investor
as a Conduit Investor
| By: |
|
Name: Xxxxxx Xxxxxxxxxx
| Title: | Vice President |
WESTLB AG, NEW YORK BRANCH,
as an Administrative Agent and as a Bank Investor
as an Administrative Agent and as a Bank Investor
| By: |
|
Name: Xxxxxxx Xxxxx
| Title: | Executive Director |
| By: |
|
Name: Xxxxxxxxx Xxxxxx
| Title: | Director |
LANDESBANK HESSEN-THUERINGEN
GIROZENTRALE, as a Bank Investor
GIROZENTRALE, as a Bank Investor
| By: |
|
Name: Xxxxxx Xxxxxxx
| Title: | Senior Vice President |
| By: |
|
Name: Stefan Branbauer
| Title: | Vice President |
GIRO BALANCED FUNDING CORPORATION,
as a Conduit Investor
as a Conduit Investor
| By: |
|
Name: Xxxxxx Xxxxx
| Title: | Vice President |
BAYERISCHE LANDESBANK, NEW YORK
BRANCH, as an Administrative Agent
BRANCH, as an Administrative Agent
| By: |
|
Name: Xxxxxxxxx Xxxxxxx
| Title: | Senior Vice President |
| By: |
|
Name: Xxxx-Xxx Xxxxxx
| Title: | Vice President |
BAYERISCHE LANDESBANK, NEW YORK
BRANCH, as a Bank Investor
BRANCH, as a Bank Investor
| By: |
|
Name: Xxxx Xxxxxxxxx
| Title: | Second Vice President |
| By: |
|
Name: Xxxx-Xxx Xxxxxx
| Title: | Vice President |
LIBERTY STREET FUNDING LLC,
as a Conduit Investor
as a Conduit Investor
| By: |
|
Name: Xxxxx X. Xxxxxxx
| Title: | President |
THE BANK OF NOVA SCOTIA,
as an Administrative Agent and as a Bank Investor
as an Administrative Agent and as a Bank Investor
| By: |
|
Name: Xxxxxxx Xxxx
| Title: | Director |
EXHIBIT A
Form
of
REAFFIRMATION OF PARENT AGREEMENT
REAFFIRMATION OF PARENT AGREEMENT
(Attached)
REAFFIRMATION
OF PARENT AGREEMENT
July 10,
0000
|
XxxxXX, XX, Xxx Xxxx Branch, as Administrative Agent and Agent 0000 Xxxxxx xx xxx Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
The Bank of Nova Scotia as Administrative Agent Xxx Xxxxxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 |
|
|
Bayerische Landesbank, New York Branch, as Administrative Agent 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
Each of the undersigned, FRESENIUS MEDICAL CARE AG &
CO. KGAA and FRESENIUS MEDICAL CARE HOLDINGS, INC.
(i) acknowledges, and consents to, the execution of that
certain Amendment No. 1 dated as of July 10, 2009 (the
“TAA Amendment”) with respect to the Fourth
Amended and Restated Transfer and Administration Agreement,
dated as of October 16, 2008 among NMC Funding Corporation,
National Medical Care, Inc., the entities parties thereto as
“Conduit Investors”, the financial institutions
parties thereto as “Bank Investors”, the financial
institutions parties thereto as “Administrative
Agents” and WestLB AG, New York Branch, as
“Agent”, (ii) reaffirms all of its obligations
under that certain Amended and Restated Parent Agreement dated
as of October 16, 2008 made by the undersigned (as amended
or otherwise modified from time to time, the “Parent
Agreement”), and (iii) acknowledges and agrees
that, after giving effect to the TAA Amendment, such Parent
Agreement remains in full force and effect and such Parent
Agreement is hereby ratified and confirmed.
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FRESENIUS MEDICAL CARE HOLDINGS, INC. |
FRESENIUS MEDICAL CARE AG & CO. KGAA represented by Fresenius Medical Care Management AG (General Partner) |
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By:
 Name: Xxxx Xxxxxxx |
By:  Name: Xx. Xxx Xxxxx |
 Xx. Xxxxxx Xxxxx |
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Title: Vice President & Asst. Treasurer
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Title: Members of the Management Board CEO
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Law and Compliance General Counsel |
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