exv10w2



 




Exhibit 10.2




AMENDMENT




Dated as of October 20, 2005




to




RECEIVABLES PURCHASE AGREEMENT




Dated as of August 28, 1997



     
THIS AMENDMENT (this “Amendment”) dated as of
October 20, 2005 is entered into by and between NMC FUNDING
CORPORATION, a Delaware corporation, as Purchaser (the
“Purchaser”) and NATIONAL MEDICAL CARE, INC., a
Delaware corporation, as Seller (the “Seller”).




PRELIMINARY STATEMENTS



     
A. The Purchaser and the Seller are parties to that certain
Receivables Purchase Agreement dated as of August 28, 1997
(as amended or otherwise modified prior to the date hereof, the
“RPA”). Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to them in
the RPA.



     
B. The Purchaser and the Seller have agreed to amend the
RPA 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. The RPA is hereby
amended as follows:






		
	 	     
    1.1 The definition of “FMC” is deleted in its
    entirety.
	 
	 	     
    1.2 The following new definition is added to
    Section 1.1 of the RPA in appropriate alphabetical order:






		
	 	     
    “‘FMCAG’ means Fresenius Medical Care, AG,
    a corporation organized and existing under the laws of the
    Federal Republic of Germany, including such entity after its
    transformation into a KGaA (Kommanditgesellschaft auf
    Aktien), and its successors and permitted assigns.”






		
	 	     
    1.3 Each reference in the RPA to “FMC” is deleted
    and replaced by a reference to “FMCAG.”
	 
	 	     
    1.4 Each reference in the RPA to “FMCAG Bank
    Revolver” is deleted and replaced by a reference to
    “FMCAG Credit Facility.”
	 
	 	     
    1.5 The definition of “Voting Stock” is amended
    to read as follows:






		
	 	     
    “‘Voting Stock’ shall have the meaning
    specified in the TAA.”






		
	 	     
    1.6 The first sentence of Section 3.1(x) is amended to
    read as follows:






		
	 	     
    “FMCAG owns, directly or indirectly, all of the issued and
    outstanding common stock of (and such stock comprises more than
    80% of the Voting Stock of) FMCH, free and clear of any Adverse
    Claim except to the extent such stock is pledged in connection
    with the FMCAG Credit Facility or is subject to put/call
    agreements, forward agreements or other similar arrangements
    among FMCAG and its subsidiaries.”






		
	 	     
    1.7 Section 5.1(a)(ii) is amended to replace the words
    “after the end of each of the first three fiscal
    quarters” with the words “after the end of the second
    fiscal quarter.”











 






		
	 	     
    1.8 Section 7.1(k) is amended to read as follows:






		
	 	     
    “(i) the Seller shall cease to own, free and clear of
    any Adverse Claim all of the outstanding shares of capital stock
    of the Transferor on a fully diluted basis; or (ii) FMCH
    shall cease to own, directly or indirectly, free and clear of
    any Adverse Claim, (other than a pledge made pursuant to the
    FMCAG Credit Facility and put/call agreements, forward
    agreements or other similar arrangements among FMCAG and its
    subsidiaries), all of the outstanding shares of capital stock of
    any of the Originating Entities or the Collection Agent on a
    fully diluted basis; provided that FMCAG may own directly or
    indirectly stock that is not Voting Stock in subsidiaries of
    FMCH; or (iii) FMCAG shall cease to own, directly or
    indirectly, free and clear of any Adverse Claim (other than a
    pledge made pursuant to the FMCAG Credit Facility and put/call
    agreements, forward agreements or other similar arrangements
    among FMCAG and its subsidiaries), all of the Voting Stock of
    FMCH other than the preferred stock of FMCH outstanding as of
    the date hereof (which preferred stock outstanding as of the
    date hereof shall not represent more than 20% of the total
    Voting Stock of FMCH); or (iv) or a Change of Control (as
    defined under the TAA)”



     
SECTION 2. Conditions Precedent. This Amendment
shall become effective and be deemed effective as of the date
hereof upon (i) the receipt by the Purchaser of
counterparts of this Amendment duly executed by the Purchaser
and the Seller and (ii) the occurrence of the Effective
Date under (and as defined in) Amendment No. 4 to the TAA
of even date herewith.



     
SECTION 3. Covenants, Representations and
Warranties of the Seller.






		
	 	     
    3.1 Upon the effectiveness of this Amendment, the Seller
    hereby reaffirms all covenants, representations and warranties
    made by it in the RPA 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 The Seller 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 Seller Default or Potential Seller Default shall
    exist under the RPA.



     
SECTION 4. Reference to and Effect on the RPA.






		
	 	     
    4.1 Upon the effectiveness of this Amendment, each
    reference in the RPA to “this Agreement,”
    “hereunder,” “hereof,” “herein,”
    “hereby” or words of like import shall mean and be a
    reference to the RPA as amended hereby, and each reference to
    the RPA in any other document, instrument and agreement executed
    and/or delivered in connection with the RPA shall mean and be a
    reference to the RPA as amended hereby.
	 
	 	     
    4.2 Except as specifically amended hereby, the RPA 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 Purchaser or any of its assignees under the RPA 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 a
signature page to this Amendment by facsimile shall be effective
as delivery of a manually executed counterpart of this Amendment.



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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 Purchaser






			
	 	By: 	
     



		
	 	
     

	 	
    Name:  
	 	
    Title:
	 
	 	
    NATIONAL MEDICAL CARE, INC.,
	 	
    as Seller






			
	 	By: 	
     



		
	 	
     

	 	
    Name:  
	 	
    Title:



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