Exhibit 2.30
AMENDMENT NO. 1
DATED AS OF MARCH 31, 2004
TO
THIRD AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
DATED AS OF OCTOBER 23, 2003
THIS AMENDMENT NO. 1 (this "Amendment") dated as of March 31, 2004 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 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 The TAA is amended to add the following new Section 2.16:
"SECTION 2.16. Optional Repurchase of Transferred Interest. The
Transferor may at any time at its option elect to repurchase the Transferred
Interest on not less than sixty (60) days' prior written notice to each
Administrative Agent (a "Repurchase Notice") specifying the date on which such
repurchase shall occur (the "Repurchase Date") and that such Repurchase Date
shall be the Termination Date hereunder. By no later than 11:00 a.m. (New York
time) on the Repurchase Date, the Transferor shall pay to each Administrative
Agent, for the account of the members of its Related Group, an amount (the
"Repurchase Price") equal to the sum of (i) the portion of the Net Investment
funded by the Investors in such Related Group, (ii) all Discount accrued and to
accrue thereon through the last day of the applicable Tranche Period(s) to which
such Net Investment has been allocated and (iii) all other Aggregate Unpaids
owing to the members of such Related Group or any related Indemnified Party
under the Transaction Documents accrued through the date of such payment. The
Repurchase Price payable with respect to any Related Group shall be calculated
by the related Administrative Agent and notified to the Transferor, which
calculation shall be conclusive and binding absent manifest error. By delivering
a Repurchase Notice the Transferor shall be deemed to have designated the
Repurchase Date as the "Termination Date" as contemplated by clause (i) of the
definition of such term."
1.2 Section 5.1(j) of the TAA is amended in its entirety to read as
follows:
"(j) Sale Treatment. The Transferor will not, and will not permit any
Originating Entity to, account for (including for accounting and tax purposes),
or otherwise treat, the transactions contemplated by the Receivables Purchase
Agreement, the Transferring Affiliate Letter or the BMA
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Transfer Agreement in any manner other than as a sale of Receivables by the
applicable Originating Entity to the Seller or Transferor, as applicable. In
addition, the Transferor shall, and shall cause each Originating Entity to,
disclose (in a footnote or otherwise) in all of its respective financial
statements (including any such financial statements consolidated with any other
Persons' financial statements) the existence and nature of the transaction
contemplated hereby, by the Receivables Purchase Agreement, by the Transferring
Affiliate Letter and by the BMA Transfer Agreement, and the interest of the
Transferor (in the case of the Seller's financial statements), and the Agent, on
behalf of the Investors, in the Affected Assets."
SECTION 2. Conditions Precedent. This Amendment shall become effective and
be deemed effective as of January 1, 2004 (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 Conduit Investors, the
Bank Investors, the Administrative Agents and the Agent; and
(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 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
Amendment but the failure to deliver an original executed counterpart shall not
affect the validity, enforceability and binding effect of this Amendment.
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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/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Treasurer
NATIONAL MEDICAL CARE, INC., as
Collection Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Treasurer
Signature Page
Amendment No. 1 to Third Amended and Restated
Transfer and Administration Agreement
4
PARADIGM FUNDING LLC,
as a Conduit Investor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
WESTLB AG, NEW YORK BRANCH, as Agent, an
Administrative Agent and as a Bank
Investor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Tallow
Title: Director
By: /s/ ▇▇▇▇ LANCOMBE
-----------------------------------
Name: ▇▇▇▇ Lancombe
Title: Director
Signature Page
Amendment No. 1 to Third Amended and Restated
Transfer and Administration Agreement
5
GIRO MULTI-FUNDING CORPORATION,
as a Conduit Investor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
BAYERISCHE LANDESBANK, NEW YORK BRANCH,
as an Administrative Agent
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇-▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇-▇▇▇ ▇▇▇▇▇▇
Title: Vice President
BAYERISCHE LANDESBANK, CAYMAN ISLANDS
BRANCH,
as a Bank Investor
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇-▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇-▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Signature Page
Amendment No. 1 to Third Amended and Restated
Transfer and Administration Agreement
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ASSET ONE SECURITIZATION, LLC,
as a Conduit Investor
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
SOCIETE GENERALE, as an Administrative
Agent and as a Bank Investor
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Signature Page
Amendment No. 1 to Third Amended and Restated
Transfer and Administration Agreement
▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ FUNDING CORP.,
as a Conduit Investor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE BANK OF NOVA SCOTIA, as an
Administrative Agent and as a Bank
Investor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
Signature Page
Amendment No. 1 to Third Amended and Restated
Transfer and Administration Agreement
8
LANDESBANK HESSEN-THUERINGEN
GIROZENTRALE, as a Bank Investor
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Associate
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
Signature Page
Amendment No. 1 to Third Amended and Restated
Transfer and Administration Agreement
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