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EXHIBIT 10.19.3
THIRD AMENDMENT TO PARTICIPATION AGREEMENT
AND LEASE AGREEMENT
This THIRD AMENDMENT TO PARTICIPATION AGREEMENT AND LEASE AGREEMENT
(this "Amendment"), dated as of December 29, 1995, is by and among FRESENIUS
USA, INC., a Massachusetts corporation, as lessee (the "Lessee"), FIRST SECURITY
BANK OF UTAH, N.A., a national banking association, not in its individual
capacity (in its individual capacity, the "Trust Company"), except as expressly
stated herein, but solely as Owner Trustee (the "Owner Trustee" or the
"Lessor"), and DEUTSCHE BANK AG, NEW YORK AND/OR CAYMAN ISLANDS BRANCHES, duly
licensed branches of Deutsche Bank AG, a German corporation, as investor (the
"Investor").
RECITALS:
A. The parties hereto are parties to that certain Participation
Agreement dated as of March 31, 1995 (as amended, restated, supplemented or
otherwise modified from time to time, the "Participation Agreement");
B. The Lessee and the Lessor are parties to that certain Lease
Agreement dated as of March 31, 1995 (as amended, restated, supplemented or
otherwise modified from time to time, the "Lease"), pursuant to which the Lessor
has leased certain Equipment to the Lessee;
C. The parties desire to amend certain provisions of the Participation
Agreement and the Lease, among other things, to increase the amount of the
Investor's Commitment and to provide for an additional Closing Date for the
acquisition by the Lessor of additional Equipment, which Equipment will become
subject to the Lease, all on the terms and conditions set forth in this
Amendment;
D. Shortly following the date hereof, it is contemplated that the
Lessor will sell to Fleet Credit Corporation ("Fleet") all of the Equipment for
a purchase price equal to the Equipment Cost (the "Sale"), which Sale shall be
subject to the Lease, and Fleet will enter into a lease agreement with Deutsche
Bank AG, New York Branch ("Deutsche Bank"), which lease (the "Head Lease") shall
be subject and subordinate to the Lease; and
E. Each capitalized term used in this Amendment and not otherwise
defined in this Amendment shall have the meaning ascribed thereto in Appendix A
to the Participation Agreement; this Amendment shall constitute an Operative
Agreement; and these Recitals shall be construed as part of this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, the parties hereto agree as follows:
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1. Amendments to the Participation Agreement.
1.1 Section 5.3(n) of the Participation Agreement is hereby amended by
deleting the reference to "June 30" in the second line thereof and substituting
therefor "December 29".
1.2 Section 7.3(s) of the Participation Agreement is hereby amended by
adding at the conclusion of such Section the following: "(other than the
Equipment acquired by the Lessor on the Final Closing Date which shall have been
"placed in service" for tax purposes during the fourth quarter of the Investor's
taxable year in which the Final Closing Date occurs)".
1.3 Section 7.3(y) of the Participation Agreement is hereby amended by
(i) deleting the reference to "2.3%" in clause (ii) thereof and substituting
therefor "0%", (ii) deleting the reference to "53.9%" in clause (ii) thereof and
substituting therefor "61.1%" and (iii) deleting the reference to "43.8%" in
clause (ii) thereof and substituting therefor "38.9%".
1.4 Section 1.2 of Exhibit E to the Participation Agreement is hereby
amended by (a) deleting the reference to "2.3%" in clause (ii) thereof and
substituting therefor "0%", (b) deleting the reference to "53.9%" in clause (ii)
thereof and substituting therefor "61.1%", (c) deleting the reference to "43.8%"
in clause (ii) thereof and substituting therefor "38.9%" and (d) by adding after
the work "occurs" in the seventh line thereof the following: "(other than the
Equipment acquired by the Lessor on the Final Closing Date which it is assumed
is placed in service in the fourth quarter of the Investor's taxable year in
which the Final Closing Date occurs)".
1.5 Appendix A to the Participation Agreement is hereby amended as
follows:
(a) The definition of the term "Equipment Cost" is amended by
deleting the reference to the figure "$19,000,000" in the third line thereof and
substituting therefor the figure "$27,000,000".
(b) The definition of the term "Eurodollar Component" shall be
amended to read as follows:
"Eurodollar Component" shall mean (i) for the Stub Period, the
product of (a)(1) the NIBOR multiplied by (2) a fraction equal to (A)
the number of days in the Stub Period, divided by (B) 360, multiplied
by (b) the Lease Funding Balance, and (ii) for any other Rental Period,
the product of (c)(1) the Eurodollar Reserve Rate multiplied by (2) a
fraction equal to (C) the number of days in such Rental Period, divided
by (D) 360, multiplied by (d) the Lease Funding Balance."
(c) The definition of the term "Indemnified Person" shall be
deemed to include Fleet following consummation of the Sale and the execution of
the Head Lease.
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(d) The definition of the term "Investor Commitment" is
amended by deleting the reference to the figure "$19,000,000" in the first line
thereof and substituting therefor the figure "$27,000,000".
(e) The first three clauses (i) - (iii) in the definition of
the term "Rental Period" ending with the words 'Business Day,' shall be amended
to read as follows:
"(i) initially, the period commencing on the Initial Closing
Date and ending one month thereafter;
(ii) thereafter, until July 31, 1995, each period commencing
on the last day of the next preceding Rental Period and ending one
month thereafter, with the last of such periods ending on July 31,
1995;
(iii) thereafter, until the Final Closing Date, each period
commencing on the last day of the next preceding Rental Period and
ending three months thereafter, with the last of such Rental Periods
ending on the Final Closing Date;
(iv) the Stub Period; and
(v) thereafter, each period commencing on the last day of the
next preceding Rental Period and ending three months thereafter, with
the first of such periods commencing on the last day of the Stub
Period;"
(f) The following new definitions shall be added in
alphabetical order as follows:
"NIBOR" shall mean the New York Interbank Offered Rate, an
interest rate at which United States financial center bank deposits
trade in the United States marketplace.
"Stub Period' shall mean the period commencing on the Final
Closing Date and ending on December 31, 1995."
2. Amendments to the Lease.
2.1 Section 17.1(m) of the Lease is hereby amended by deleting the
reference to "June 30" in the first line thereof and substituting therefor
"December 29".
2.2 The first three lines of Section 22.1(c) of the Lease are hereby
amended in their entirety to read as follows:
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"(c) If the Equipment is being sold on the Expiration Date
pursuant to Lessee's exercise of its Remarketing Option or is being
returned to Lessor, Lessee shall, at Lessor's option and Lessee's own
risk and expense, return the Equipment to Lessor by (i) disassembling,
boxing and preparing the Equipment for shipment and delivering the
Equipment to the nearest operating railroad capable of shipping the
same or (ii) delivering the Equipment in place and in use where
located, in either case, in the same. . .".
2.3 The last sentence of Section 22.1(d) of the Lease is hereby amended
to read as follows:
"All assignments, easements, agreements and other deliveries required
by clauses (i), (ii) and (iii) of this paragraph (d) shall (i) be in
form satisfactory to Lessor, (ii) be fully assignable (including both
primary assignments and assignments given in the nature of security)
without payment of any fee, cost or other charge and (iii) extend in
duration for the remaining economic useful life of the Equipment
following termination of this Lease."
3. Reference to and Effect on the Participation Agreement and Lease.
3.1 Except as specifically amended above, the Participation Agreement,
the Lease and each of the Schedules, Exhibits and Appendices thereto shall
remain in full force and effect and each of the Participation Agreement and the
Lease as amended by this Amendment, is hereby ratified and confirmed in all
respects.
3.2 Effective as of the date of this Amendment, each reference in (a)
the Participation Agreement or the Lease, as applicable, to "this Agreement,"
"hereunder," "hereof," or words of similar import and (b) any other Operative
Agreement to "the Participation Agreement" or "the Lease", as applicable, shall,
in each case, mean and be a reference to the Participation Agreement or the
Lease, as applicable, as amended hereby.
3.3 The Lessee hereby consents to the sale/leaseback transaction
referred to in Section C of the Recitals and acknowledges and agrees that any
Operating Lease which the Lessee has elected to cause an Operating Lessee to
enter into shall be subject and subordinate to the Head Lease.
3.4 Upon the request of Fleet or Deutsche Bank, the Lessee agrees to
acknowledge directly in writing to Fleet that Fleet is an "Indemnified Person"
as such term is defined in the Participation Agreement consistent with the terms
thereof and to provide Fleet with a copy of the applicable provisions of the
Lessee's indemnification obligations under the Participation Agreement and/or
Lease in connection with any notice of a Claim, Imposition or Tax Loss received
from Fleet.
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4. Miscellaneous.
4.1 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.
4.2 Counterparts. This Amendment may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement.
4.3 GOVERNING LAW. THIS AMENDMENT SHALL IN ALL RESPECTS BE GOVERNED BY
THE LAW OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW BUT EXCLUDING ANY OTHER CONFLICT-OF-LAW OR CHOICE-OF-LAW
RULES WHICH MIGHT LEAD TO THE APPLICATION OF THE INTERNAL LAWS OF ANY OTHER
JURISDICTION) AS TO ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each party hereto has caused this Third Amendment
to be duly executed and delivered by its proper and duly authorized officer as
of the date first written above.
FRESENIUS USA, INC.,
as Lessee
By: ______________________________
Title: _____________________________
FIRST SECURITY BANK OF UTAH, N.A.,
not in its individual capacity, except as expressly stated
herein, but solely as Owner Trustee
By: ______________________________
Title: ____________________________
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCHES,
as Investor
By: ______________________________
Title: ____________________________
By: ______________________________
Title: ____________________________
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