TRANSFER AND ADMINISTRATION AGREEMENT
Exhibit 10.2
AMENDMENT NO. 3
Dated as of January 1, 2005
to
THIRD AMENDED AND RESTATED
Dated as of October 23, 2003
THIS AMENDMENT NO. 3 (this “Amendment”)
dated as of January 1, 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:
| 1.1 Section 1.1 of the TAA is amended to add the following definition in appropriate alphabetical order: | |
| “Pre-Arranged Contractual Adjustment” means, with respect to any Receivable, a Contractual Adjustment that was agreed upon by the applicable Originating Entity and the applicable Obligor on or prior to the date such Receivable arose. | |
| 1.2 The definition of “Dilution Ratio” in Section 1.1 of the TAA is amended to add the following clause (w) immediately prior to clause (x): | |
| “(w) any Pre-Arranged Contractual Adjustment reflected in the initial Outstanding Balance of the applicable Receivable,”. | |
| 1.3 The definition of “Outstanding Balance” in Section 1.1 of the TAA is amended to add the following at the end of clause (ii) of such definition: | |
| “minus the amount of any Pre-Arranged Contractual Adjustments that have not yet been applied to reduce such outstanding principal amount.” | |
| 1.4 The definition of “Unrealized Contractual Adjustment Reserve” is amended to add the following sentence at the end of such definition: | |
| “It is understood and agreed that Pre-Arranged Contractual Adjustments will be reflected in the initial Outstanding Balance of the applicable Receivables and accordingly will not be included in the Unrealized Contractual Adjustment Reserve.” |
| 1.5 Section 7.1(n) of the TAA is amended in its entirety to read as follows: | |
| “(n) the Dilution Ratio for any month exceeds 10.0%;” | |
| 1.6 The definition of “Applicable Margin” in Section 1.1 of the TAA is amended in its entirety to read as follows: | |
| “Applicable Margin” means 1.25%. |
SECTION 2. 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:
| (a) the Agent shall have received counterparts of this Amendment duly executed by the Transferor, the Collection Agent, the Majority Investors, the Administrative Agents and the Agent; | |
| (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; and | |
| (c) the Agent shall have received a reaffirmation of the Parent Agreement in substantially the form attached hereto as Exhibit A. |
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 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
2
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.
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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.
| NMC FUNDING CORPORATION, | |
| as Transferor |
| By: | /s/ Xxxx Xxxxxxx |
|
|
|
| Name: Xxxx Xxxxxxx | |
| Title: Treasurer | |
| NATIONAL MEDICAL CARE, INC., as | |
| Collection Agent |
| By: | /s/ Xxxx Xxxxxxx |
|
|
|
| Name: Xxxx Xxxxxxx | |
| Title: Treasurer |
Signature Page
Amendment No. 3 to Third Amended and Restated
4
| PARADIGM FUNDING LLC, | |
| as a Conduit Investor |
| By: | /s/ Xxxxx X. Xxxxx |
|
|
|
| Name: Xxxxx X. Xxxxx | |
| Title: Vice President | |
|
WESTLB AG, NEW YORK BRANCH, as Agent, an Administrative Agent and as a Bank Investor |
| By: | /s/ Xxxxxxx X. Xxxxx |
|
|
|
| Name: Xxxxxxx X. Xxxxx | |
| Title: Director |
| By: | /s/ Xxxxxxxxx Xxxxx |
|
|
|
| Name: Xxxxxxxxx Xxxxx | |
| Title: Director |
Signature Page
Amendment No. 3 to Third Amended and Restated
5
| GIRO MULTI-FUNDING CORPORATION, | |
| as a Conduit Investor |
| By: | /s/ Xxxxxxx Xxxx |
|
|
|
| Name: Xxxxxxx Xxxx | |
| Title: Vice President | |
| BAYERISCHE LANDESBANK, NEW YORK BRANCH, as an Administrative Agent |
| By: | /s/ Xxxxxxxxx Xxxxxxx |
|
|
|
| Name: Xxxxxxxxx Xxxxxxx | |
| Title: Senior Vice President |
| By: | /s/ Xxxx-Xxx Xxxxxx |
|
|
|
| Name: Xxxx-Xxx Xxxxxx | |
| Title: Vice President | |
| BAYERISCHE LANDESBANK, CAYMAN ISLANDS BRANCH, as a Bank Investor |
| By: | /s/ Xxxxxx XxXxxxx |
|
|
|
| Name: Xxxxxx XxXxxxx III | |
| Title: First Vice President |
| By: | /s/ Xxxx-Xxx Xxxxxx |
|
|
|
| Name: Xxxx-Xxx Xxxxxx | |
| Title: Vice President |
Signature Page
Amendment No. 3 to Third Amended and Restated
0
| XXXXXXX XXXXXX FUNDING CORP., | |
| as a Conduit Investor |
| By: | /s/ Xxxxxxx X. Xxxxxx |
|
|
|
| Name: Xxxxxxx X. Xxxxxx | |
| Title: Vice President | |
| THE BANK OF NOVA SCOTIA, as an | |
| Administrative Agent and as a Bank Investor |
| By: | /s/ Xxxxxxx Xxxx |
|
|
|
| Name: Xxxxxxx Xxxx | |
| Title: Director |
Signature Page
Amendment No. 3 to Third Amended and Restated
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| LANDESBANK HESSEN-THUERINGEN GIROZENTRALE, as a Bank Investor |
| By: | /s/ Xxxxxx Xxxxxxx |
|
|
|
| Name: Xx. Xxxxxx Xxxxxxx | |
| Title: Senior Vice President |
| By: | /s/ Xxx Xxxxxxxxx |
|
|
|
| Name: Xxx Xxxxxxxxx | |
| Title: Analyst |
Signature Page
Amendment No. 3 to Third Amended and Restated
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EXHIBIT A
REAFFIRMATION OF PARENT AGREEMENT
January 1, 0000
Xxx Xxxx xx Xxxx Xxxxxx
as Administrative Agent
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
WestLB, AG, New York Branch,
as Administrative Agent and Agent
0000 Xxxxxx xx xxx Xxxxxxxx
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 and FRESENIUS
MEDICAL CARE HOLDINGS, INC. (i) acknowledges, and consents
to, the execution of that certain Amendment No. 3 dated as
of January 1, 2005 (the “Amendment”) with
respect to the Third Amended and Restated Transfer and
Administration Agreement, dated as of October 23, 2003
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 Parent Agreement dated as of
August 28, 1997 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 Amendment, such Parent
Agreement remains in full force and effect and such Parent
Agreement is hereby ratified and confirmed.
| FRESENIUS MEDICAL CARE HOLDINGS, INC. | FRESENIUS MEDICAL CARE AG | |
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