AMENDMENT NO. 8 Dated as of October 18, 2007 to THIRD AMENDED AND RESTATED TRANSFER AND ADMINISTRATION AGREEMENT Dated as of October 23, 2003

 

Exhibit 10.3

 

AMENDMENT NO. 8

Dated as of October 18, 2007

to

THIRD AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT

Dated as of October 23, 2003

 

THIS AMENDMENT NO. 8 (this “Amendment”) dated as of October 18, 2007 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. 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 3 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 18, 2007” to “October 16, 2008.”

 

1.2  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 18, 2007” to “October 16, 2008.”

 

1.3  Exhibit Q to the TAA is amended to delete the entities specified below from the list of Transferring Affiliates; provided that each such entity shall continue to be a “Transferring Affiliate” with respect to any Receivables that arose prior to the date hereof.

 

Bio-Medical Applications of Arizona, Inc.
Renal Care Group Arizona, Inc.
Renal Dimensions, LLC
Fresenius USA Puerto Rico, Inc.
St. Louis RCG Supply Co.
RenaLab, Inc.
Saint Louis Supply Company, LLC

 

The following entities were merged into another existing Transfering Affiliate and therefore are being deleted from the list of Transferring Affiliates:

 

Bio-Medical Applications of East Orange, Inc.
Bio-Medical Applications of Essex, Inc.
Bio-Medical Applications of Hillside, Inc.
Bio-Medical Applications of Irvington, Inc.
Bio-Medical Applications of Jersey City, Inc.
Bio-Medical Applications of New York, Inc.
Bio-Medical Applications of Pine Brook, Inc.
Bio-Medical Applications of South Queens, Inc.
Bio-Medical Applications of Trenton, Inc.
Prime Medical, Inc.
Renal Scientific Service, Inc.

 

An updated Exhibit Q, reflecting all the foregoing deletions, is attached to this Amendment.

 

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) Amendment No. 6 to the Transferring Affiliate Letter, substantially in the form of Exhibit B attached hereto, duly executed by the parties thereto;

 

(d) confirmation that all fees due and payable on or before the Effective Date have been paid in full; and

 

(e) 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 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 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

 

Name:     ▇▇▇▇ ▇▇▇▇▇▇▇

Title: Treasurer

 

NATIONAL MEDICAL CARE, INC., as

Collection Agent

 

Name:     ▇▇▇▇ ▇▇▇▇▇▇▇

Title: Treasurer

 

Signature Page

Amendment No. 8 to Third Amended and Restated

Transfer and Administration Agreement

PARADIGM FUNDING LLC,

as a Conduit Investor

 

Name:     ▇▇▇▇▇ ▇. ▇▇▇▇▇

Title: Vice President

 

WESTLB AG, NEW YORK BRANCH, as an

Administrative Agent and as a Bank Investor

 

Name:     ▇▇▇▇▇▇▇ ▇. ▇▇▇▇

Title: Director

 

Name:     ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇

Title: Director

 

LANDESBANK HESSEN-THUERINGEN

GIROZENTRALE, as a Bank Investor

 

Name:     ▇▇▇▇▇▇ ▇▇▇▇▇▇▇

Title: Senior Vice President

 

Name:     Stefan Branbauer

 

Signature Page

Amendment No. 8 to Third Amended and Restated

Transfer and Administration Agreement

GIRO BALANCED FUNDING CORPORATION,

as a Conduit Investor

 

Name:     ▇▇▇▇▇▇ ▇ ▇▇▇▇▇

 

BAYERISCHE LANDESBANK, NEW YORK BRANCH, as an Administrative Agent

 

Name:     ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇

Title: Senior Vice President

 

Name:     ▇▇▇▇-▇▇▇ ▇▇▇▇▇▇

 

BAYERISCHE LANDESBANK, CAYMAN ISLANDS

BRANCH, as a Bank Investor

 

Name:     ▇▇▇▇ ▇▇▇▇▇▇▇▇▇

Title: Second Vice President

 

Name:     ▇▇▇▇-▇▇▇ ▇▇▇▇▇▇

 

Signature Page

Amendment No. 8 to Third Amended and Restated

Transfer and Administration Agreement

LIBERTY STREET FUNDING LLC,

as a Conduit Investor

 

Name:     ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇

Title: Vice President

 

THE BANK OF NOVA SCOTIA, as an

Administrative Agent and as a Bank Investor

 

Name:     ▇▇▇▇▇▇▇ ▇▇▇▇

Title: Director

 

Signature Page

Amendment No. 8 to Third Amended and Restated

Transfer and Administration Agreement

AMSTERDAM FUNDING CORPORATION,

as a Conduit Investor

 

Name:     ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇

Title: Vice President

 

ABN AMRO Bank N.V., as an Administrative

Agent and as a Bank Investor

 

Name:     ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇

Title: Vice President

 

Name:     ▇▇▇▇▇▇ ▇. Educate

Title: Managing Director

 

Signature Page

Amendment No. 8 to Third Amended and Restated

Transfer and Administration Agreement

EXHIBIT A

 

Form of

REAFFIRMATION OF PARENT AGREEMENT

EXHIBIT B

 

Form of

AMENDMENT TO TRANSFERRING AFFILIATE LETTER

NEW EXHIBIT Q
to
THIRD AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT

LIST OF TRANSFERRING AFFILIATES