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EXHIBIT 10.11
AMENDMENT NO. 2
Dated as of August 25, 1998
to
TRANSFER AND ADMINISTRATION AGREEMENT
Dated as of August 28, 1997
THIS AMENDMENT NO. 2 (this "AMENDMENT") dated as of August 25, 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 its 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 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 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 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, Section 1.1 the TAA is
amended as follows:
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1.1. The definition of "COMMITMENT TERMINATION DATE" is
amended to change the date set forth therein from "August 27, 1998" to
"September 28, 1998".
1.2. The definition of "TERMINATION DATE" is amended to
change the date set forth in clause (viii) thereof from "August 27,
1998" to "September 28, 1998".
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, the Bank Investor and the Agent;
and
(ii) a reaffirmation of the Parent Agreement,
substantially in the form of Exhibit A attached hereto, duly executed by each of
FMC and FMCH.
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.
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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 (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.
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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.
ENTERPRISE FUNDING CORPORATION,
as Company
By: /s/ Stephen Newman
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Stephen Newman
Vice President
NMC FUNDING CORPORATION,
as Transferor
By: /s/ James V. Luther
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James V. Luther
Assistant Treasurer
NATIONAL MEDICAL CARE, INC.,
as Collection Agent
By: /s/ James V. Luther
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James V. Luther
Assistant Treasurer
NATIONSBANK, N.A., as Agent
and as a Bank Investor
By: /s/ Elliott T. Lemon
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Elliott T. Lemon
Vice President
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EXHIBIT A
FORM OF REAFFIRMATION OF PARENT AGREEMENT
REAFFIRMATION OF PARENT AGREEMENT
August 25, 1998
NMC Funding Corporation
Two Ledgemont Center
95 Hayden Avenue
Lexington, Massachusetts 02173
NationsBank, N.A.,
as Agent under the
Transfer and Administration
Agreement referred to below
NationsBank Corporate Center--10th Floor
Charlotte, North Carolina 28255
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. 2 dated as of August 25, 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., the "Bank Investors" parties thereto and
NationsBank, N.A., as agent (as amended, 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 and
such Parent Agreement is hereby ratified and confirmed.
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FRESENIUS MEDICAL CARE AG
By:
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Title:
FRESENIUS MEDICAL CARE
HOLDINGS, INC.
By:
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Title: