exv10w1



 




Exhibit 10.1




AMENDMENT NO. 4




Dated as of October 20, 2005




to




THIRD AMENDED AND RESTATED




TRANSFER AND ADMINISTRATION AGREEMENT




Dated as of October 23, 2003



     
THIS AMENDMENT NO. 4 (this “Amendment”)
dated as of October 20, 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 The definition of “Commitment Termination
    Date” in Section 1.1 of the TAA is amended to change
    the date set forth therein from “October 20,
    2005” to “October 19, 2006.”
	 
	 	     
    1.2 The definition of “FMCAG” in Section 1.1
    of the TAA is amended to read as follows:






		
	 	     
    “‘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 The definition of “FMCAG Bank Revolver” in
    Section 1.1 is deleted in its entirety.
	 
	 	     
    1.4 Each reference in the TAA to “FMCAG Bank
    Revolver” is deleted and replaced by a reference to
    “FMCAG Credit Facility.”
	 
	 	     
    1.5 The following new definition is added to
    Section 1.1 of the TAA in appropriate alphabetical order:






		
	 	     
    “‘FMCAG Credit Facility’ means the Amended
    and Restated Credit Agreement dated as of February 21, 2003
    among FMCAG, FMCH and FMC Finance II S.à.r.l, as
    borrowers, the guarantors party thereto, the lenders party
    thereto, and Bank of America, N.A., as Administrative Agent, as
    amended, restated, supplemented, modified, renewed, refunded,
    replaced or refinanced and in effect at any time, including by
    the agreements evidencing the $5 billion credit facility
    FMCAG is anticipated to enter into in connection with the
    acquisition of Renal Care Group, Inc.”











 






		
	 	     
    1.6 Clause (iv) of the definition of “Net
    Receivables Balance” in Section 1.1 of the TAA is
    amended to read as follows:






		
	 	     
    “(iv) the aggregate amount by which the Outstanding
    Balance of all Eligible Receivables originated by any member of
    the Spectra Renal Management Group exceeds 7.5% of Eligible
    Receivables, plus”






		
	 	     
    1.7 The definition of “Termination Date” in
    Section 1.1 of the TAA is amended to change the date set
    forth in clause (v) thereof from “October 20,
    2005” to “October 19, 2006.”
	 
	 	     
    1.8 The definition of “Voting Stock” in
    Section 1.1 of the TAA is amended to read as follows:






		
	 	     
    “‘Voting Stock’ shall mean with respect to
    any Person, any capital stock or other equity interests issued
    by such Person which are ordinarily, in the absence of
    contingencies, entitled to vote for the election of directors,
    managing general partners or its equivalent of such Person, or,
    where no board of directors, managing general partners or its
    equivalent exists and where management control of such Person is
    controlled through the ownership of capital stock or other
    equity interests, the right to vote for or assert such
    management control, even though the right to vote for the
    election of directors (or the right to vote for or assert
    management control) has been suspended by the happening of such
    a contingency.”






		
	 	     
    1.8 The following new definitions are added to
    Section 1.1 of the TAA in appropriate alphabetical order:






		
	 	     
    “Change of Control” means (i) if FMCAG is
    a corporate entity other than a KGaA (Kommanditgesellschaft
    auf Aktien), any transaction or series of transactions in
    which any “person” or “group” (within the
    meaning of Rule 13d-5 under the Securities Exchange Act of
    1934, and the rules and regulations thereunder (the
    “Exchange Act”) and Section 13(d) and
    14(d) of the Exchange Act) other than Fresenius AG and its
    subsidiaries acquires all or substantially all of FMCAG’s
    assets or becomes the direct or indirect “beneficial
    owner” (as defined in Rule 13d-3 under the Exchange
    Act), by way of merger, consolidation, other business
    combination or otherwise, of greater than the Change of Control
    Percentage of the total voting power (on a fully diluted basis
    as if all convertible securities had been converted and all
    options and warrants had been exercised) entitled to vote in the
    election of directors of FMCAG or the surviving Person (if other
    than FMCAG) and (ii) if FMCAG has become a KGaA
    (Kommanditgesellschaft auf Aktien), if the general
    partner of the KGaA charged with management of FMCAG shall at
    any time fail to be a Subsidiary of Fresenius AG, or if
    Fresenius AG shall fail at any time to own and control more than
    twenty-five percent (25%) of the Voting Stock of FMCAG.
	 
	 	     
    “Change of Control Percentage” means the
    greater of (a) thirty-five percent (35%) or (b) the
    percentage of Voting Stock in FMCAG held and owned by Fresenius
    AG.






		
	 	     
    1.9 The first two sentences of Section 3.1(y) are
    amended to read as follows:






		
	 	     
    “FMCAG owns, directly or indirectly through a wholly-owned
    Subsidiary, 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. All of the issued and outstanding stock of each
    Originating Entity is owned directly or indirectly by 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; provided,
    however, that FMCAG may own directly or indirectly stock that is
    not Voting Stock in subsidiaries of FMCH.”



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    1.10 Section 7.1(r) 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) a Change of Control shall
    occur; or”






		
	 	     
    1.11 Section 7.1(p) is amended to read as follows:






		
	 	     
    “the Default Ratio for any month exceeds 9.0%;”






		
	 	     
    1.12 The account number set forth in Section 10.3,
    below the information for the Notice to Transferor, is amended
    to read “Account 323-0-76823”



     
SECTION 2. Consent to Amendment of Receivables
Purchase Agreement and Amendment of the Parent Agreement.
Each of the parties hereto hereby acknowledges and consents to
the execution and delivery of (i) the amendment to the
Receivables Purchase Agreement in the form attached as
Exhibit A, to be entered into by and between the Transferor
and the Seller as of October 20, 2005 and (ii) the
amendment to the Parent Agreement in the form attached as
Exhibit B, to be entered into by and between the parties to
such Parent Agreement.



     
SECTION 3. 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 Conduit Investors, the Bank Investors, 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.



     
SECTION 4. Covenants, Representations and Warranties of
the Transferor and the Collection Agent.






		
	 	     
    4.1 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.
	 
	 	     
    4.2 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 5. Reference to and Effect on the TAA.






		
	 	     
    5.1 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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    5.2 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.
	 
	 	     
    5.3 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 6. 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 7. 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 Amendment but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability and
binding effect of this Amendment.



     
SECTION 8. 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 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






		
	 	
    PARADIGM FUNDING LLC,
	 	
    as a Conduit Investor






			
	 	By: 	
    /s/ Doris J. Hearn



		
	 	
     

	 	
    Name:  Doris J. Hearn



			
	 	Title:	
    Vice President







Signature Page




Amendment No. 4 to Third Amended and Restated




Transfer and Administration Agreement



5







 


		
	 	
    WESTLB AG, NEW YORK BRANCH, as Agent,
	 	
    an Administrative Agent and as a Bank Investor







			
	 	By: 	
    /s/ Matthew Tallo



		
	 	
     

	 	
    Name:  Matthew Tallo



			
	 	Title:	
    Director






			
	 	By: 	
    /s/ Elisabeth Wilds



		
	 	
     

	 	
    Name:  Elisabeth Wilds



			
	 	Title:	
    Director






		
	 	
    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







Signature Page




Amendment No. 4 to Third Amended and Restated




Transfer and Administration Agreement



6







 


		
	 	
    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






		
	 	
    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/ J. Alan Edwards



		
	 	
     

	 	
    Name:  J. Alan Edwards



			
	 	Title:	
    Managing Director







Signature Page




Amendment No. 4 to Third Amended and Restated




Transfer and Administration Agreement



7







 


		
	 	
    LANDESBANK HESSEN-THUERINGEN
	 	
    GIROZENTRALE, as a Bank Investor







			
	 	By: 	
    /s/ Christian Brune



		
	 	
     

	 	
    Name:  Christian Brune



			
	 	Title:	
    Senior Vice President






			
	 	By: 	
    /s/ Pia Horlebein



		
	 	
     

	 	
    Name:  Pia Horlebein



			
	 	Title:	
    Analyst







Signature Page




Amendment No. 4 to Third Amended and Restated




Transfer and Administration Agreement



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