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EXHIBIT 10.12
AMENDMENT NO. 1
Dated as of February 27, 1998
to
TRANSFER AND ADMINISTRATION AGREEMENT
Dated as of August 28, 1997
THIS AMENDMENT NO. 1 (the "AMENDMENT") dated as of February 27, 1998 is
entered into by and among NMC FUNDING CORPORATION, a Delaware corporation, as
Transferor (in such capacity, the "TRANSFEROR"), NATIONAL MEDICAL CARE, INC., a
Delaware corporation, as the initial "COLLECTION AGENT", ENTERPRISE FUNDING
CORPORATION, a Delaware corporation (the "COMPANY"), and NATIONSBANK, N.A., a
national banking association ("NATIONSBANK"), as agent for the Company and the
Bank Investors (in such capacity, the "AGENT") and as a Bank Investor.
PRELIMINARY STATEMENT
A. The Company, the Transferor, the Collection Agent and
NationsBank, in such capacity as the Agent and as a Bank Investor, are parties
to that certain Transfer and Administration Agreement dated as of August 28,
1997 (as amended from time to time, the "TAA"). Capitalized terms used herein
and not otherwise defined shall have the meanings ascribed to them in the TAA.
B. The Company, the Transferor, the Collection Agent and
NationsBank, as Agent and as a Bank Investor, 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 Company, the Transferor, the Collection Agent and
NationsBank hereby agree as follows:
SECTION 1. AMENDMENTS TO THE TAA. Subject to the satisfaction of the
conditions precedent set forth in SECTION 2 below, the TAA is amended as
follows:
1. ARTICLE I of the TAA is amended to delete the definition therein of
"FACILITY LIMIT" in its entirety
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and to substitute the following new definition therefor:
"'FACILITY LIMIT' means 331,500,000; PROVIDED that such amount may not at
any time exceed the aggregate Commitments at any time in effect."
2. ARTICLE I of the TAA is amended to delete from the definition of "LOSS
RESERVE" the minimum Loss Reserve amount "$10,000,000" set forth therein
and to substitute the following amount therefor: "$16,250,000"
3. SECTION 2.2,(a) INCREMENTAL TRANSFERS of the TAA is amended to delete
clause (i)(z) thereof in its entirety and to substitute the following
therefor:
"(z) the Net Investment would not exceed $325,000,000;"
4. SECTION 10.6, SUCCESSORS AND ASSIGNS of the TAA is amended to add the
following provision as new clause (c) thereto:
"(c) Each of the Transferor, the Collection Agent and each Bank Investor
hereby consents and agrees to the assignment by the Company from time to
time of all or any part of its rights and obligations under, interest in
and title to this Agreement and the Transferred Interest to any commercial
paper conduit administered by NationsBank and designated by NationsBank
from time to time to accept such assignment from the Company (a "CONDUIT
ASSIGNEE"). In the case of any such assignment by the Company, such
Conduit Assignee shall, to the extent of such assignment, be and become
the "Company" for all purposes of this Agreement, and enjoy all the rights
and benefits of the "Company" hereunder."
5. The signature page of the TAA is hereby amended to delete the
Commitment amount "$204,000,000" set forth thereon and to substitute the
following amount therefor: "$331,500,000"
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SECTION 2. CONDITIONS PRECEDENT. This Amendment shall become effective and
be deemed effective as of the date hereof upon the receipt by the Agent of each
of the following:
(i) counterparts of this Amendment duly executed by the Company, the
Transferor, the Collection Agent and the Bank Investor;
(ii) a reaffirmation of the Parent Agreement, substantially in the
form of Exhibit A attached hereto, duly executed by each of Fresenius Medical
Care AG and Fresenius Medical Care Holdings, Inc.; and
(iii) an opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Associate General Counsel of
FMCH, NMC and each Transferring Affiliate, as Counsel to FMC, FMCH, NMC, the
Transferor, the Seller and the Transferring Affiliates, reaffirming as of the
date of this Amendment the opinion of such Counsel issued in connection with the
original closing of the TAA, after giving effect to this Amendment;
(iv) an opinion of Arent Fox ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇, special counsel
to FMC, FMCH, the Transferor and the Seller, reaffirming as of the date of this
Amendment the opinion of such counsel issued in connection with the original
closing of the TAA, after giving effect to this Amendment;
(v) an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & Fish, LLP, special
Massachusetts counsel, reaffirming as of the date of this Amendment the opinion
of such counsel issued in connection with the original closing of the TAA, after
giving effect to this Amendment; and
(vi) an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇, General Counsel of FMC, reaffirming
as of the date of this Amendment the opinion of such counsel issued in
connection with the original closing of the TAA, after giving effect to this
Amendment.
(vii) a non-refundable closing fee of $75,000.
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SECTION 3. COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE COMPANY,
THE TRANSFEROR AND THE COLLECTION AGENT.
3.1 Upon the effectiveness of this Amendment, each of the Company,
the Transferor and the Collection Agent hereby reaffirms all covenants,
representations and warranties made 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 Company, 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 the Company, the
Bank Investor 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
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(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.
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.
ENTERPRISE FUNDING CORPORATION
as Company
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Officer
NMC FUNDING CORPORATION,
as Transferor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
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NATIONAL MEDICAL CARE, INC.,
as Collection Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
NATIONSBANK, N.A, as Agent
and a Bank Investor
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Authorized Officer
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EXHIBIT A
to
AMENDMENT NO. 1
Dated as of February __, 1998
to
TRANSFER AND ADMINISTRATION AGREEMENT
Dated as of August 28, 1997
FORM OF REAFFIRMATION OF PARENT AGREEMENT
REAFFIRMATION OF PARENT AGREEMENT
February __, 1998
NMC Funding Corporation
Two Ledgemont Center
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
NationsBank, N.A.,
as Agent under the
Transfer and Administration
Agreement referred to below
NationsBank Corporate ▇▇▇▇▇▇--▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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. 1 dated as of February __, 1998 (the "AMENDMENT") to
the Transfer and Administration Agreement dated as of August 28, 1997 among
Enterprise Funding Corporation, NMC Funding Corporation, National Medical Care,
Inc. and NationsBank, N.A. (the "TAA"), (ii) reaffirms all of its obligations
under that certain Parent Agreement dated as of August 28, 1997 made by the
undersigned and (iii) acknowledges and agrees that, after giving effect to the
Amendment, such Parent Agreement remains in full force and effect (including,
without limitation, in respect of the increased Facility Limit and Commitment
contemplated in the Amendment) and such Parent Agreement is hereby ratified and
confirmed.
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FRESENIUS MEDICAL CARE AG
By: _____________________
Title:
FRESENIUS MEDICAL CARE
HOLDINGS, INC
By: __________________
Title: