EXHIBIT 10.7
AMENDMENT NO. 3
Dated as of December 18, 2002
to
SECOND AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
Dated as of September 24, 2002
THIS AMENDMENT NO. 3 (this "Amendment") dated as of December 18, 2002 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, ASSET ONE SECURITIZATION, LLC ("Asset One"), as a Conduit
Investor, the FINANCIAL INSTITUTIONS PARTIES HERETO as Class A Bank Investors,
BANK OF AMERICA, N.A. ("Bank of America"), as Class B Investor, WESTLB AG, NEW
YORK BRANCH ("WestLB"), as an Administrative Agent, BAYERISCHE LANDESBANK, NEW
YORK BRANCH ("BLB"), as an Administrative Agent, SOCIETE GENERALE ("SG"), as an
Administrative Agent and BANK OF AMERICA, N.A., as an Administrative Agent and
as Agent.
PRELIMINARY STATEMENTS
A. The Transferor, the Collection Agent, Compass, Enterprise, GMFC,
Asset One, the Class A Bank Investors, the Class B Investor, WestLB, as an
Administrative Agent, BLB, as an Administrative Agent, SG, as an Administrative
Agent and Bank of America, as an Administrative Agent and as Agent, are parties
to that certain Second Amended and Restated Transfer and Administration
Agreement dated as of September 24, 2002 (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 Clause (a) of the definition of "Concentration Factor" in
Section 1.1 of the TAA is amended in its entirety to read as follows:
"(a) in the case of any Commercial Obligor or Hospital Obligor
that does not have a Special Concentration Limit (as defined below),
5% of the Class A Net Investment outstanding on such date; provided
that, subject to clause (c) below, (i) for so long as Aetna Inc. is
rated at least BBB- by Standard & Poor's and at least Baa3 by
Moody's and, if rated by Fitch Ratings ("Fitch"), at least BBB- by
Fitch, the Concentration Factor for Aetna Inc. shall be 7.0% of the
Class A Net Investment outstanding on such date, (ii) for so long as
Cigna Corp. is rated at least A- by Standard & Poor's and at least
A3 by Moody's and, if rated by Fitch, at least A- by Fitch, the
Concentration Factor for Cigna Corp. shall be 10% of the Class A Net
Investment outstanding on such date, (iii) for so long as clause
(ii) does not apply but Cigna Corp. is rated at least BBB+ by
Standard & Poor's and at least Baa1 by Moody's and, if rated by
Fitch, at least BBB+ by Fitch, the Concentration Factor for Cigna
Corp. shall be 7% of the Class A Net Investment outstanding on such
date and (iv) for so long as United Healthcare Corporation is rated
at least A- by Standard & Poor's and at least A3 by Moody's and, if
rated by Fitch, at least A- by Fitch, the Concentration Factor for
United Healthcare Corporation shall be 10% of the Class A Net
Investment outstanding on such date;".
1.3 The definition of "Defaulted Receivable" in Section 1.1 of the
TAA is amended to delete the words "from the original due date" and to
substitute therefor the words "from the original due date when a contract exists
with an Originating Entity that is part of the dialysis products division of the
Parent Group and otherwise from the original invoice date".
1.4 The definition of "Delinquent Receivable" in Section 1.1 of the
TAA is amended to delete the words "from the original due date" and to
substitute therefor the words "from the original due date when a contract exists
with an Originating Entity that is part of the dialysis products division of the
Parent Group and otherwise from the original invoice date".
SECTION 2. Conditions Precedent. This Amendment shall become
effective and be deemed effective as of the date (the "Effective Date") on which
the following conditions precedent have been satisfied:
(a) the Agent shall have received counterparts of this Amendment
duly executed by the Transferor, the Collection Agent, the Conduit
Investors, the Class A Bank Investors, the Class B Investor, 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.
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 a Conduit Investor
By: /s/ Kevin P. Burns
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Name: Kevin P. Burns
Title: Vice-President
COMPASS US ACQUISITION, LLC,
as a Conduit Investor
By: /s/ Douglas K. Johnson
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Name: Douglas K. Johnson
Title: President:
GIRO MULTI-FUNDING CORPORATION,
as a Conduit Investor
By: /s/ Frank B. Bilotta
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Name: Frank B. Bilotta
Title: Vice President
NMC FUNDING CORPORATION,
as Transferor
By: /s/ Marc Lieberman
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Name: Marc Lieberman
Title: Treasurer
NATIONAL MEDICAL CARE, INC., as
Collection Agent
By: /s/ Marc Lieberman
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Name: Marc Lieberman
Title: Treasurer
Signature Page to
Amendment No. 3
BANK OF AMERICA, N.A., as Agent,
as an Administrative Agent and as a
Class A Bank Investor
By: /s/ John K. Svolos
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Name: John K. Svolos
Title: Principal
WESTLB AG, NEW YORK BRANCH, as an
Administrative Agent and as a Class A
Bank Investor
By: /s/ Christian C. Brune
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Name: Christian C. Brune
Title: Director, Global Securitization
Americas
By: /s/ Anne Lacombe
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Name: Anne Lacombe
Title: Director
BAYERISCHE LANDESBANK, NEW YORK BRANCH,
as an Administrative Agent and as a
Class A Bank Investor
By: /s/ Alexander Kohnert
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Name: Alexander Kohnert
Title: Senior Vice President
By: /s/ Lori-Ann Wynter
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Name: Lori-Ann Wynter
Title: Vice President
LANDESBANK HESSEN-THUERINGEN
GIROZENTRALE, as a Class A
Bank Investor
By: /s/ Martin Scheele
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Name: Dr. Martin Scheele
Title: Vice President
By: /s/ Jens Doring
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Name: Jens Doring
Title: Associate
Signature Page to
Amendment No. 3
BANK OF AMERICA, N.A.,
as a Class B Investor
By: /s/ Richard L. Nichols, Jr.
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Name: Richard L. Nichols, Jr.
Title: Managing Director
ASSET ONE SECURITIZATION, LLC,
as a Conduit Investor
By: /s/ Doris J. Hearn
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Name: Doris J. Hearn
Title : Vice President
SOCIETE GENERALE,
as an Administrative Agent
and as a Class A Bank Investor
By: /s/ Evelyn Echevarria
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Name: Evelyn Echevarria
Title : Vice President
By: /s/ Sharyanne McSwain
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Name: Sharyanne McSwain
Title: Director
Signature Page to
Amendment No. 3