exv10w3








    Exhibit 10.3



 




    AMENDMENT
    NO. 1

    

    Dated as of July 10, 2009

    to

    FOURTH AMENDED AND RESTATED

    TRANSFER AND ADMINISTRATION AGREEMENT

    

    Dated as of October 16, 2008



 



    THIS AMENDMENT NO. 1 (this “Amendment”)
    dated as of July 10, 2009 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 Fourth Amended and Restated
    Transfer and Administration Agreement dated as of
    October 16, 2008 (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. In addition, 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.  Subject to the conditions precedent
    set forth in Section 2 below and effective as of the
    Effective Date (also as defined below), the TAA is hereby
    amended as follows:



 



    1.1 The definition of “Commitment Termination
    Date” in Section 1.1 of the TAA is amended
    change the date set forth therein from “October 15,
    2009” to “January 15, 2010.”



 



    Section 2.  Conditions
    Precedent.  This Amendment shall become
    effective and be deemed effective as of the date hereof (the
    “Effective Date”) subject to the Agent’s
    receipt of the following, each in form and substance
    satisfactory to each Administrative Agent:



 



    (a) counterparts of this Amendment duly executed by the
    Transferor, the Collection Agent, the Conduit Investors, the
    Bank Investors, the Administrative Agents and the Agent;



 



    (b) a reaffirmation of the Parent Agreement, substantially
    in the form of Exhibit A attached hereto, duly executed by
    each of FMCAG and FMCH;



 



    (c) confirmation that all fees due and payable by the
    Transferor on or before the Effective Date have been paid in
    full; and



 



    (d) such other documents, instruments, certificates and
    opinions as the Agent or any Administrative Agent shall
    reasonably request.



 



    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 or
    e-mail 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 or
    e-mail 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 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.













 






    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: 
	
    





    Name: Mark Fawcett     



			
	 	    Title: 
	
    Vice President and Treasurer




 



    NATIONAL MEDICAL CARE, INC., as

    Collection Agent



 


			
	 	    By: 
	
    





    Name: Mark Fawcett     



			
	 	    Title: 
	
    Vice President and Treasurer



 


 




    Signature
    Page

    Amendment No. 1 to Fourth Amended and Restated

    Transfer and Administration Agreement













 






    PARADIGM FUNDING LLC,

    as a Conduit Investor



 


			
	 	    By: 
	
    





    Name: Evelyn Echevarria



			
	 	    Title: 
	
    Vice President




 



    WESTLB AG, NEW YORK BRANCH,

    as an Administrative Agent and as a Bank Investor



 


			
	 	    By: 
	
    





    Name: Matthew Tallo



			
	 	    Title: 
	
    Executive Director




 


			
	 	    By: 
	
    





    Name: Vesselina Koleva



			
	 	    Title: 
	
    Director



 


 




    Signature
    Page

    Amendment No. 1 to Fourth Amended and Restated

    Transfer and Administration Agreement













 






    LANDESBANK HESSEN-THUERINGEN

    GIROZENTRALE, as a Bank Investor



 


			
	 	    By: 
	
    





    Name: Martin Scheele



			
	 	    Title: 
	
    Senior Vice President




 


			
	 	    By: 
	
    





    Name: Stefan Branbauer



			
	 	    Title: 
	
    Vice President



 


 




    Signature
    Page

    Amendment No. 1 to Fourth Amended and Restated

    Transfer and Administration Agreement













 






    GIRO BALANCED FUNDING CORPORATION,

    as a Conduit Investor



 


			
	 	    By: 
	
    





    Name: Damian Perez



			
	 	    Title: 
	
    Vice President




 



    BAYERISCHE LANDESBANK, NEW YORK

    BRANCH, as an Administrative Agent



 


			
	 	    By: 
	
    





    Name: Alexander Kohnert



			
	 	    Title: 
	
    Senior Vice President




 


			
	 	    By: 
	
    





    Name: Lori-Ann Wynter



			
	 	    Title: 
	
    Vice President




 



    BAYERISCHE LANDESBANK, NEW YORK

    BRANCH, as a Bank Investor



 


			
	 	    By: 
	
    





    Name: Jana Schmiedel



			
	 	    Title: 
	
    Second Vice President




 


			
	 	    By: 
	
    





    Name: Lori-Ann Wynter



			
	 	    Title: 
	
    Vice President



 


 




    Signature
    Page

    Amendment No. 1 to Fourth Amended and Restated

    Transfer and Administration Agreement













 






    LIBERTY STREET FUNDING LLC,

    as a Conduit Investor



 


			
	 	    By: 
	
    





    Name: Frank B. Bilotta



			
	 	    Title: 
	
    President




 



    THE BANK OF NOVA SCOTIA,

    as an Administrative Agent and as a Bank Investor



 


			
	 	    By: 
	
    





    Name:     Michael Eden



			
	 	    Title: 
	
    Director



 


 




    Signature
    Page

    Amendment No. 1 to Fourth Amended and Restated

    Transfer and Administration Agreement













 







    EXHIBIT A



 




    Form
    of

    REAFFIRMATION OF PARENT AGREEMENT



 




    (Attached)













 







    REAFFIRMATION
    OF PARENT AGREEMENT

    



 




    July 10,
    2009
    



 


	 	 	 
	
    WestLB, AG, New York Branch, 

    as Administrative Agent and Agent

    1211 Avenue of the Americas

    New York, New York 10036
	
 
	
    The Bank of Nova Scotia

    as Administrative Agent

    One Liberty Plaza

    New York, New York 10006

	
 
	
 
	
 

	
    Bayerische Landesbank, New York Branch,

    as Administrative Agent

    560 Lexington Avenue

    New York, New York 10022
	
 
	
 









 



    Each of the undersigned, FRESENIUS MEDICAL CARE AG &
    CO. KGAA and FRESENIUS MEDICAL CARE HOLDINGS, INC.
    (i) acknowledges, and consents to, the execution of that
    certain Amendment No. 1 dated as of July 10, 2009 (the
    “TAA Amendment”) with respect to the Fourth
    Amended and Restated Transfer and Administration Agreement,
    dated as of October 16, 2008 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 Amended and Restated Parent Agreement dated
    as of October 16, 2008 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 TAA 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 & CO. KGAA

    represented by

    Fresenius Medical Care Management AG

    (General Partner)

	
 
	
 
	
 
	
 
	
 

	

    By:  

    Name:     Mark Fawcett


	
 
	
    By:  

    Name:     Dr. Ben Lipps
	
 
	
     

    Dr. Rainer Runte

	

    Title: Vice President & Asst. Treasurer


	
 
	

      Title: Members of the Management Board CEO



	
 
	
 
	
 
	
 
	
    Law and Compliance

    General Counsel