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EXHIBIT 10.9
AMENDMENT NO. 2
Dated as of October 26, 2000
to
AMENDED AND RESTATED TRANSFER AND ADMINISTRATION AGREEMENT
Dated as of September 27, 1999
THIS AMENDMENT NO. 2 (this "Amendment") dated as of October 26, 2000 is
entered into by and among NMC FUNDING CORPORATION, a Delaware corporation, as
Transferor, NATIONAL MEDICAL CARE, INC., a Delaware corporation, as Collection
Agent, ENTERPRISE FUNDING CORPORATION, a Delaware corporation ("Enterprise"), as
a Conduit Investor, COMPASS US ACQUISITION, LLC, a Delaware limited liability
company ("Compass"), as a Conduit Investor, GIRO MULTI-FUNDING CORPORATION, a
bankruptcy-remote special purpose company incorporated in Delaware ("GMFC"), as
a Conduit Investor, the FINANCIAL INSTITUTIONS PARTIES HERETO as Bank Investors,
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH ("WestLB"), as an
Administrative Agent, BAYERISCHE LANDESBANK, NEW YORK BRANCH ("BLB"), as an
Administrative Agent and BANK OF AMERICA, N.A. ("Bank of America"), as an
Administrative Agent and as Agent.
PRELIMINARY STATEMENTS
A. The Transferor, the Collection Agent, Compass, Enterprise,
the Bank Investors, WestLB, as an Administrative Agent, and Bank of America, as
an Administrative Agent and as Agent, are parties to that certain Amended and
Restated Transfer and Administration Agreement dated as of September 27, 1999
(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 desire to add GMFC as a Conduit Investor
and BLB as an Administrative Agent under the TAA.
C. 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 the TAA. Subject to the satisfaction
of the conditions precedent set forth in Section 2 below, the TAA is amended as
follows:
1.1. The definition of "Administrative Agent" in Section 1.1
of the TAA is amended and restated in its entirety to read as follows:
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"Administrative Agent" means (i) Bank of America as
administrative agent for the Related Group that includes Enterprise,
(ii) WestLB, as administrative agent for the Related Group that
includes Compass or (iii) BLB, as administrative agent for the Related
Group that includes GMFC.
1.2. The definition of "Bank Investors" in Section 1.1 of the
TAA is amended and restated in its entirety to read as follows:
"Bank Investors" means Bank of America, WestLB, BLB, each
other financial institution identified on Schedule II and their
respective successors and assigns.
1.3. The following definition is added to Section 1.1 of the
TAA in appropriate alphabetical order:
"BLB" means Bayerische Landesbank, New York Branch, together
with its successors and permitted assigns.
1.4. Clause (i) of the definition of "Commitment" in Section
1.1 of the TAA is amended to delete the words "the dollar amount set forth
opposite such Bank Investor's signature on the signature page hereto" and to
substitute therefor the following:
"the dollar amount set forth opposite such Bank Investor's
name on Schedule II hereto".
1.5. The definition of "Commitment Termination Date" in
Section 1.1 of the TAA is amended to change the date set forth therein from
"October 26, 2000" to "October 25, 2001".
1.6. The definition of "Contractual Adjustment" is amended to
replace the words "Outstanding Balance" with the words "outstanding principal
amount".
1.7. The following definition is added to Section 1.1 of the
TAA in appropriate alphabetical order:
"Contractual Adjustment Amount" means, with respect to any
Receivable originated by a member of the Spectra Renal Management
Group, at any time, an amount equal to (i) 75% of the original
outstanding principal amount of such Receivable (excluding any accrued
and outstanding Finance Charges related thereto) minus (ii) the amount
of any Contractual Adjustments already granted with respect to such
Receivable.
1.8. The definition of "Conduit Investor" in Section 1.1 of
the TAA is amended and restated in its entirety to read as follows:
"Conduit Investor" means Compass, GMFC or Enterprise.
1.9 The definition of "Dealer Fee" in Section 1.1 of the TAA
is amended and restated to read in its entirety as follows:
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"Dealer Fee" means, with respect to any Conduit Investor, the
fee payable by the Transferor to the related Administrative Agent or,
in the case of GMFC, to such Conduit Investor, pursuant to Section 2.4
hereof, the terms of which are set forth in the Fee Letter to which
such Conduit Investor is a party."
1.10 The definition of "Dilution Ratio" in Section 1.1 of the
TAA is amended to delete the words "the aggregate amount of any Receivables that
are reduced or canceled" and to substitute therefor the following:
"the aggregate amount of any reductions to or cancellations of
the respective Outstanding Balances of the Receivables".
1.11 The following definition is added to Section 1.1 of the
TAA in appropriate alphabetical order:
"Face Amount" means, with respect to any Commercial Paper, (i)
the face amount of any such Commercial Paper issued on a discount basis
and (ii) the principal amount of, plus the amount of all interest
accrued and to accrue thereon to the stated maturity date of, any such
Commercial Paper issued on an interest-bearing basis.
1.12 definition of "Facility Limit" in Section 1.1 of the TAA
is amended to change the dollar amount set forth therein from "$360,000,000" to
"$500,000,000".
1.13 The definition of "Fee Letter" in Section 1.1 of the TAA
is amended to add the following immediately before the period:
"or (iii) the letter agreement dated October 26, 2000 between
the Transferor, GMFC and BLB with respect to the fees to be paid by the
Transferor hereunder with respect to the Related Group that includes
GMFC, as amended, modified or supplemented from time to time."
1.14 The following definition is added to Section 1.1 of the
TAA in appropriate alphabetical order:
"GMFC" means Giro Multi-Funding Corporation, a
bankruptcy-remote special purpose company incorporated in Delaware,
together with its successors and permitted assigns.
1.15 The definition of "Loss Reserve" in Section 1.1 of the
TAA is amended to delete the dollar amount "$16,250,000" set forth therein and
to substitute therefor the following:
"5% of the maximum Net Investment permitted under clause
(i)(z) of the second sentence of Section 2.2(a)."
1.16 The definition of "Net Receivables Balance" in Section
1.1 of the TAA is amended to add the following at the end of such definition
immediately before the period:
"plus (iv) the aggregate amount by which the Outstanding
Balance of all Eligible Receivables originated by any member of the
Spectra Renal Management Group exceeds 7.5% of the Net Investment".
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1.17 The definition of "Outstanding Balance" in Section 1.1 of
the TAA is amended and restated in its entirety to read as follows:
"Outstanding Balance" means (i) with respect to any Receivable
originated by a member of the Spectra Renal Management Group, the
outstanding principal amount thereof (excluding any accrued and
outstanding Finance Charges related thereto) minus the Contractual
Adjustment Amount with respect to such Receivable and (ii) with respect
to any other Receivable, the outstanding principal amount thereof
(excluding any accrued and outstanding Finance Charges related
thereto).
1.18 The definition of "Related Group" in Section 1.1 of the
TAA is amended and restated in its entirety to read as follows:
"Related Group" means any of the following groups: (i)
Enterprise, as a Conduit Investor, and Bank of America, N.A., as a Bank
Investor and as an Administrative Agent, together with their respective
successors and permitted assigns, (ii) Compass, as a Conduit Investor,
Landesbank Hessen-Thueringen Girozentrale, as a Bank Investor and
WestLB, as a Bank Investor and as an Administrative Agent, together
with their respective successors and permitted assigns and (iii) GMFC,
as a Conduit Investor, and BLB, as a Bank Investor and as an
Administrative Agent, together with their respective successors and
permitted assigns.
1.19 The definition of "Related Group Limit" in Section 1.1 of
the TAA is amended and restated in its entirety as follows:
"Related Group Limit" means (i) with respect to the Related
Group that includes Enterprise, $200,000,000, (ii) with respect to the
Related Group that includes Compass, $200,000,000 and (iii) with
respect to the Related Group that includes GMFC, $100,000,000.
1.20 The following definition is added to Section 1.1 of the
TAA in appropriate alphabetical order:
"Spectra Renal Management Group" means, collectively, Spectra
East, Inc., a Delaware corporation, Spectra Laboratories, Inc., a
Nevada corporation, as Transferring Affiliates, and their respective
successors.
1.21 The definition of "Termination Date" in Section 1.1 of
the TAA is amended to change the date set forth in clause (viii) thereof from
"October 26, 2000" to "October 25, 2001".
1.22 Clause (i)(z) of the second sentence of Section 2.2(a) of
the TAA is amended to replace the dollar amount "$352,800,000" with the dollar
amount "$490,000,000."
1.23 Section 9.7(b) of the TAA is amended by adding the
following as the second sentence thereof:
"Without limiting the generality of the foregoing, it is
understood for the avoidance of doubt that an Administrative Agent may
condition any approval on its receipt of written confirmation from S&P
and Moody's that such assignment will not
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result in the reduction or withdrawal of the then current rating of the
Commercial Paper issued by the related Conduit Investor."
1.24 The first sentence of Section 9.7(d) of the TAA is
amended and restated to read in its entirety as follows:
"The Transferor shall pay to the Administrative Agent for a
Conduit Investor or, in the case of GMFC, to such Conduit Investor, for
the account of such Conduit Investor, in connection with any assignment
by such Conduit Investor to the Bank Investors in its Related Group
pursuant to Section 9.7, an aggregate amount equal to all Discount to
accrue through the end of each outstanding Tranche Period plus all
other Aggregate Unpaids (other than Net Investment) owing to such
Conduit Investor."
1.25 Section 10.2 of the TAA is amended by adding the
following as the last sentence thereof:
"Without limiting the generality of the foregoing, it is
understood for the avoidance of doubt that an Administrative Agent may
condition its consent to any amendment or waiver on its receipt of
written confirmation from S&P and Moody's that such amendment or waiver
will not result in the reduction or withdrawal of the then current
rating of the Commercial Paper issued by its related Conduit Investor."
1.26 Section 10.3 of the TAA is amended to add the following
notice addresses for GMFC and BLB, respectively:
If to GMFC:
Giro Multi-Funding Corporation
c/o Global Securitization Services
114 West 47th Street, Suite 1715
New York, NY 10036
Attention: David Taylor
Tel: 212/302-5151
Telecopy: 212/302-8767
If to BLB
Bayerische Landesbank, New York Branch
560 Lexington Avenue
New York, New York 10022
Attention: Lori-Ann Wynter
Tel: 212/230-9005
Telecopy: 212/230-9020
1.27 Section 10.9 of the TAA is amended (i) to add the words
"or any other proceedings related to an Event of Bankruptcy" at the end of the
first sentence thereof and (ii) by adding the following after the first sentence
thereof:
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"Notwithstanding any provision contained in this Agreement to
the contrary, no Conduit Investor shall, nor shall any Conduit Investor
be obligated to, pay any amount pursuant to this Agreement unless (i)
the Conduit Investor has received funds which may be used to make such
payment in accordance with such Conduit Investor's commercial paper
program documents, which funds are not required to repay its Commercial
Paper when due; and (ii) after giving effect to such payment, either
(x) there is sufficient liquidity available (determined in accordance
with such program documents) to pay the Face Amount of all its
Commercial Paper, (y) the Conduit Investor is not rendered insolvent or
(z) its Commercial Paper has been repaid in full. Any amount which the
Conduit Investor does not pay pursuant to the operation of the
preceding sentence shall not constitute a claim (as defined in Section
101 of the United States Bankruptcy Code) against or a corporate
obligation of the Conduit Investor for any insufficiency. The
provisions of this Section shall survive the termination of this
Agreement."
1.28 The signature pages to the TAA are hereby amended to
delete all dollar amounts set forth therein.
1.29 Schedule I to the TAA is hereby amended and restated in
its entirety to read as set forth in New Schedule I attached hereto.
1.30 The New Schedule II attached hereto is hereby added as
Schedule II to the TAA.
1.31 Exhibit Q to the TAA is hereby amended to add "Spectra
East, Inc., a Delaware corporation" and "Spectra Laboratories, Inc., a Nevada
corporation" to the list of Transferring Affiliates set forth therein.
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:
(a) counterparts of this Amendment duly executed by the
Transferor, the Collection Agent, the Conduit Investors (including
GMFC), the Bank Investors, the Administrative Agents (including BLB)
and the Agent;
(b) a reaffirmation of the Parent Agreement, substantially in
the form of Exhibit A attached hereto, duly executed by each of FMC and
FMCH;
(c) a copy of the resolutions of the Board of Directors of
each of the Transferor, the Collection Agent and each member of the
Spectra Renal Management Group certified by its Secretary approving the
execution, delivery and performance by such Person of this Amendment
and the other Transaction Documents to be delivered by such Person
hereunder or thereunder;
(d) the Certificate of Incorporation of each member of the
Spectra Renal Management Group certified by the Secretary of State or
other similar official of the such Persons' jurisdiction of
incorporation;
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(e) a Good Standing Certificate for the Transferor, the
Collection Agent and each member of the Spectra Renal Management Group
issued by the Secretary of State or a similar official of such Person's
jurisdiction of incorporation;
(f) a Certificate of the Secretary of each of the Transferor,
the Collection Agent and each member of the Spectra Renal Management
Group substantially in the form of Exhibit L to the TAA;
(g) for each member of the Spectra Renal Management Group,
copies of proper financing statements (Form UCC-1), dated a date
reasonably near to the date hereof naming such Person as the debtor in
favor of the Agent, for the benefit of the Investors, as the secured
party or other similar instruments or documents as may be necessary or
in the reasonable opinion of the Agent desirable under the UCC of all
appropriate jurisdictions or any comparable law to perfect the Agent's
undivided percentage interest in all Receivables and the Related
Security and Collections relating thereto;
(h) file stamped copies of UCC-3 Termination Statements
relating to the financing statements naming Spectra Laboratories, Inc.
as debtor and Bank of the West as secured party filed with the
Secretary of State of California;
(i) an opinion of Douglas G. Kott, Deputy General Counsel for
FMCH, NMC and each Transferring Affiliate, acting as counsel to FMC,
FMCH, the Transferor, the Collection Agent and the Originating
Entities, in form and substance satisfactory to each Administrative
Agent;
(j) an opinion of Dr. Rainier Runte, acting as counsel to FMC,
in form and substance satisfactory to each Administrative Agent;
(k) an opinion of Arent Fox Kintner Plotkin & Kahn, PLLC
special counsel to FMC, FMCH, the Transferor and the Seller, covering
certain bankruptcy and general corporate matters in form and substance
satisfactory to each Administrative Agent;
(l) an opinion of Nutter, McClennen & Fish, LLP, special
Massachusetts counsel to the Transferor and the Originating Entities,
in form and substance satisfactory to each Administrative Agent;
(m) an executed copy of (i) an amended and restated Fee Letter
for the Related Group that includes Enterprise, (ii) an amended and
restated Fee Letter for the Related Group that includes WestLB and
(iii) a Fee Letter for the Related Group that includes BLB;
(n) an Amendment to the Receivables Purchase Agreement, duly
executed by each of the Transferor and the Seller, in the form attached
hereto as Exhibit B;
(o) an Amendment to the Transferring Affiliate Letter, duly
executed and delivered by the Seller and each of the Transferring
Affiliates, in the form attached hereto as Exhibit C;
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(p) confirmation from each of S&P and Moody's that the
execution and delivery of this Amendment and the transactions
contemplated hereby will not result in the reduction or withdrawal of
the then current rating of the Commercial Paper issued by GMFC or the
Related CP Issuer for Compass; and
(q) 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.
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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/ James V. Luther
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Name: James V. Luther
Title: President
NATIONAL MEDICAL CARE, INC.,
as Collection Agent
By: /s/ James V. Luther
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Name: James V. Luther
Title: Assistant Treasurer
ENTERPRISE FUNDING CORPORATION,
as a Conduit Investor
By: /s/ Andrew L. Stidd
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Name: Andrew L. Stidd
Title: President
COMPASS US ACQUISITION, LLC,
as a Conduit Investor
By: /s/ Juliana C. Johnson
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Name: Juliana C. Johnson
Title: Vice President
GIRO MULTI-FUNDING CORPORATION,
as a Conduit Investor
By: /s/ David O. Taylor
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Name: David O. Taylor
Title: Vice President
Signature Page to
Amendment No. 2
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BANK OF AMERICA, N.A., as a Bank Investor,
as Administrative Agent
and as Agent
By: /s/ Brian D. Krum
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Name: Brian D. Krum
Title: Vice President
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH, as a Bank
Investor and as Administrative Agent
By: /s/ Christian Brune
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Name: Christian Brune
Title: Associate Director
Securitization
By: /s/ Michael Cheng
-----------------
Name: Michael Cheng
Title: Associate Director
Securitization
BAYERISCHE LANDESBANK, NEW YORK BRANCH,
as a Bank Investor
and as Administrative Agent
By: /s/ Hereward Drummond
---------------------
Name: Hereward Drummond
Title: Senior Vice President
By: /s/ Alex Kohnert
----------------
Name: Alex Kohnert
Title: First Vice President
Signature Page to
Amendment No. 2
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LANDESBANK HESSEN-THUERINGEN GIROZENTRALE,
as a Bank Investor
By: /s/ Schultheis
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Name: Schultheis
Title: Senior Vice President
By: /s/ Scheele
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Name: Scheele
Title: Vice President
Signature Page to
Amendment No. 2
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EXHIBIT A
REAFFIRMATION OF PARENT AGREEMENT
October 26, 2000
NMC Funding Corporation
95 Hayden Avenue
Lexington, Massachusetts 02420-9192
Bank of America, N.A.,
as Administrative Agent and Agent
Bank of America Corporate Center--10th Floor
Charlotte, North Carolina 28255
Westdeutsche Landesbank Girozentrale,
New York Branch, as Administrative Agent
1211 Avenue of the Americas
New York, New York 10036
Bayerische Landesbank, New York Branch,
as an Administrative Agent
560 Lexington Avenue
New York, New York 10022
Each of the undersigned, FRESENIUS MEDICAL CARE AG and
FRESENIUS MEDICAL CARE HOLDINGS, INC. (i) acknowledges, and consents to, the
execution of (A) that certain Amendment No. 2 dated as of October 26, 2000 (the
"TAA Amendment") to the Amended and Restated Transfer and Administration
Agreement, dated as of September 27, 1999, 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 Bank of
America, N.A., as "Agent" (as amended or otherwise modified from time to time,
the "TAA"), (B) that certain Amendment to the Receivables Purchase Agreement
(the "RPA Amendment") in the form attached as Exhibit B to the TAA Amendment and
(C) that certain Amendment to the Transferring Affiliate Letter (the
"Transferring Affiliate Amendment" and, together with the TAA Amendment and the
RPA Amendment, the "Amendments") attached as Exhibit C to the TAA Amendment,
(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 Amendments, such Parent Agreement remains in
full force and effect and such Parent Agreement is hereby ratified and
confirmed.
FRESENIUS MEDICAL CARE FRESENIUS MEDICAL CARE AG
HOLDINGS, INC.
By: __________________ By: _____________________
Name: Name:
Title: Title:
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EXHIBIT B
FORM OF AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
(Attached)
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EXHIBIT C
FORM OF AMENDMENT TO
TRANSFERRING AFFILIATE LETTER
(Attached)
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NEW SCHEDULE I
to
AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
NOTICE ADDRESSES FOR BANK INVESTORS
BANK OF AMERICA, N.A.
Bank of America Corporate Center--10th Floor
Charlotte, North Carolina 28255
Attention: Michelle M. Heath--
Structured Finance
Telephone: (704) 386-7922
Telecopy: (704) 388-9169
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH
1211 Avenue of the Americas
New York, New York 10036
Attention: Michael Fitzgerald
Telephone: (212) 597-8356
Telecopy: (212) 852-5971
BAYERISCHE LANDESBANK, NEW YORK BRANCH
560 Lexington Avenue
New York, New York 10022
Attention: Lori-Ann Wynter
Tel: 212/230-9005
Telecopy: 212/230-9020
LANDESBANK HESSEN - THUERINGEN GIROZENTRALE
Neue Mainzer Strasse 52-58
D-60297 Frankfurt am Main
Germany
Attention: Friedrich Bacmeister
Tel: 01149-69-9132-4102
Fax: 01149-69-9132-2999
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NEW SCHEDULE II
to
AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
COMMITMENTS OF BANK INVESTORS
Bank Investor Commitment
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Bank of America, N.A. $200,000,000
Westdeutsche Landesbank Girozentrale,
New York Branch $150,000,000
Bayerische Landesbank, New York Branch $100,000,000
Landesbank Hessen - Thueringen Girozentrale $ 50,000,000