exv10w2



 




Exhibit 10.2




AMENDMENT NO. 3




Dated as of January 1, 2005




to




THIRD AMENDED AND RESTATED




TRANSFER AND ADMINISTRATION AGREEMENT




Dated as of October 23, 2003



     
THIS AMENDMENT NO. 3 (this “Amendment”)
dated as of January 1, 2005 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. 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     Section 1.1 of the TAA is
    amended to add the following definition in appropriate
    alphabetical order:
	 
	 	     
    “Pre-Arranged Contractual Adjustment” means,
    with respect to any Receivable, a Contractual Adjustment that
    was agreed upon by the applicable Originating Entity and the
    applicable Obligor on or prior to the date such Receivable arose.
	 
	 	     
    1.2     The definition of
    “Dilution Ratio” in Section 1.1 of the TAA is
    amended to add the following clause (w) immediately prior
    to clause (x):
	 
	 	     
    “(w) any Pre-Arranged Contractual Adjustment reflected
    in the initial Outstanding Balance of the applicable
    Receivable,”.
	 
	 	     
    1.3     The definition of
    “Outstanding Balance” in Section 1.1 of the TAA
    is amended to add the following at the end of clause (ii)
    of such definition:
	 
	 	     
    “minus the amount of any Pre-Arranged Contractual
    Adjustments that have not yet been applied to reduce such
    outstanding principal amount.”
	 
	 	     
    1.4     The definition of
    “Unrealized Contractual Adjustment Reserve” is amended
    to add the following sentence at the end of such definition:
	 
	 	     
    “It is understood and agreed that Pre-Arranged Contractual
    Adjustments will be reflected in the initial Outstanding Balance
    of the applicable Receivables and accordingly will not be
    included in the Unrealized Contractual Adjustment Reserve.”











 






		
	 	     
    1.5     Section 7.1(n) of the TAA
    is amended in its entirety to read as follows:
	 
	 	     
     “(n) the Dilution Ratio for any month exceeds
    10.0%;”
	 
	 	     
    1.6     The definition of
    “Applicable Margin” in Section 1.1 of the TAA is
    amended in its entirety to read as follows:
	 
	 	     
    “Applicable Margin” means 1.25%.



     
SECTION 2.     Conditions
Precedent. This Amendment shall become effective and be
deemed effective as of the date hereof (the “Effective
Date”) subject to the satisfaction of the following
conditions:






		
	 	     
    (a) the Agent shall have received counterparts of this
    Amendment duly executed by the Transferor, the Collection Agent,
    the Majority Investors, the Administrative Agents and the Agent;
	 
	 	     
    (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; and
	 
	 	     
    (c) the Agent shall have received a reaffirmation of the
    Parent Agreement in substantially the form attached hereto as
    Exhibit A.



     
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



2







 




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.



3







 



     
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/ Mark Fawcett



		
	 	
     

	 	
    Name: Mark Fawcett
	 	
    Title:   Treasurer
	 
	 	
    NATIONAL MEDICAL CARE, INC., as
	 	
    Collection Agent






			
	 	By: 	
    /s/ Mark Fawcett



		
	 	
     

	 	
    Name: Mark Fawcett
	 	
    Title:   Treasurer




Signature Page




Amendment No. 3 to Third Amended and Restated




Transfer and Administration Agreement



4







 


		
	 	
    PARADIGM FUNDING LLC,
	 	
    as a Conduit Investor







			
	 	By: 	
    /s/ Doris J. Hearn



		
	 	
     

	 	
    Name: Doris J. Hearn
	 	
    Title:   Vice President
	 
	 	
    WESTLB AG, NEW YORK BRANCH, as Agent, 

     an Administrative Agent and as a Bank Investor






			
	 	By: 	
    /s/ Matthew F. Tallo



		
	 	
     

	 	
    Name: Matthew F. Tallo
	 	
    Title:   Director






			
	 	By: 	
    /s/ Elisabeth Wilds



		
	 	
     

	 	
    Name: Elisabeth Wilds
	 	
    Title:   Director




Signature Page




Amendment No. 3 to Third Amended and Restated




Transfer and Administration Agreement



5







 


		
	 	
    GIRO MULTI-FUNDING CORPORATION,
	 	
    as a Conduit Investor







			
	 	By: 	
    /s/ Matthew Dorr



		
	 	
     

	 	
    Name: Matthew Dorr
	 	
    Title:   Vice President
	 
	 	
    BAYERISCHE LANDESBANK, NEW YORK BRANCH, as an Administrative
    Agent






			
	 	By: 	
    /s/ Alexander Kohnert



		
	 	
     

	 	
    Name: Alexander Kohnert
	 	
    Title:   Senior Vice President






			
	 	By: 	
    /s/ Lori-Ann Wynter



		
	 	
     

	 	
    Name: Lori-Ann Wynter
	 	
    Title:   Vice President
	 
	 	
    BAYERISCHE LANDESBANK, CAYMAN ISLANDS BRANCH, as a Bank Investor






			
	 	By: 	
    /s/ Norman McClave



		
	 	
     

	 	
    Name: Norman McClave III
	 	
    Title:   First Vice President






			
	 	By: 	
    /s/ Lori-Ann Wynter



		
	 	
     

	 	
    Name: Lori-Ann Wynter
	 	
    Title:   Vice President




Signature Page




Amendment No. 3 to Third Amended and Restated




Transfer and Administration Agreement



6







 


		
	 	
    LIBERTY STREET FUNDING CORP.,
	 	
    as a Conduit Investor







			
	 	By: 	
    /s/ Bernard J. Angelo



		
	 	
     

	 	
    Name: Bernard J. Angelo
	 	
    Title:   Vice President
	 
	 	
    THE BANK OF NOVA SCOTIA, as an
	 	
    Administrative Agent and as a Bank Investor






			
	 	By: 	
    /s/ Michael Eden



		
	 	
     

	 	
    Name: Michael Eden
	 	
    Title:   Director




Signature Page




Amendment No. 3 to Third Amended and Restated




Transfer and Administration Agreement



7







 


		
	 	
    LANDESBANK HESSEN-THUERINGEN GIROZENTRALE, as a Bank Investor







			
	 	By: 	
    /s/ Martin Scheele



		
	 	
     

	 	
    Name: Dr. Martin Scheele
	 	
    Title:   Senior Vice President






			
	 	By: 	
    /s/ Pia Horlebein



		
	 	
     

	 	
    Name: Pia Horlebein
	 	
    Title:   Analyst




Signature Page




Amendment No. 3 to Third Amended and Restated




Transfer and Administration Agreement



8







 




EXHIBIT A




REAFFIRMATION OF PARENT AGREEMENT




January 1, 2005




The Bank of Nova Scotia




as Administrative Agent




One Liberty Plaza




New York, New York 10006




WestLB, AG, New York Branch,




as Administrative Agent and Agent




1211 Avenue of the Americas




New York, New York 10036




Bayerische Landesbank, New York Branch,




as 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 that certain Amendment No. 3 dated as
of January 1, 2005 (the “Amendment”) with
respect to the Third Amended and Restated Transfer and
Administration Agreement, dated as of October 23, 2003
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 WestLB AG, New York
Branch, as “Agent”, (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 Amendment, such Parent
Agreement remains in full force and effect and such Parent
Agreement is hereby ratified and confirmed.








 




	 	 	 
	
    FRESENIUS MEDICAL CARE HOLDINGS, INC.	 	
    FRESENIUS MEDICAL CARE AG
	 
	
    By:  
Name:  
Title: 	 	
    By:  
Name:  
Title: 
	 	 	 
	
    
     

    	 	 
	 	 	
    By:  
Name:  
Title: