EX-10.7 5 b45677fmexv10w7.txt AMEND #3, DATED 12/18/02 TO TRANSFER & ADMN AGRMNT EXHIBIT 10.7 AMENDMENT NO. 3 Dated as of December 18, 2002 to SECOND AMENDED AND RESTATED TRANSFER AND ADMINISTRATION AGREEMENT Dated as of September 24, 2002 THIS AMENDMENT NO. 3 (this "Amendment") dated as of December 18, 2002 is entered into by and among NMC FUNDING CORPORATION, a Delaware corporation, as Transferor, NATIONAL MEDICAL CARE, INC., a Delaware corporation, as Collection Agent, ENTERPRISE FUNDING CORPORATION, a Delaware corporation ("Enterprise"), as a Conduit Investor, COMPASS US ACQUISITION, LLC, a Delaware limited liability company ("Compass"), as a Conduit Investor, GIRO MULTI-FUNDING CORPORATION, a bankruptcy-remote special purpose company incorporated in Delaware ("GMFC"), as a Conduit Investor, ASSET ONE SECURITIZATION, LLC ("Asset One"), as a Conduit Investor, the FINANCIAL INSTITUTIONS PARTIES HERETO as Class A Bank Investors, BANK OF AMERICA, N.A. ("Bank of America"), as Class B Investor, WESTLB AG, NEW YORK BRANCH ("WestLB"), as an Administrative Agent, BAYERISCHE LANDESBANK, NEW YORK BRANCH ("BLB"), as an Administrative Agent, SOCIETE GENERALE ("SG"), as an Administrative Agent and BANK OF AMERICA, N.A., as an Administrative Agent and as Agent. PRELIMINARY STATEMENTS A. The Transferor, the Collection Agent, Compass, Enterprise, GMFC, Asset One, the Class A Bank Investors, the Class B Investor, WestLB, as an Administrative Agent, BLB, as an Administrative Agent, SG, as an Administrative Agent and Bank of America, as an Administrative Agent and as Agent, are parties to that certain Second Amended and Restated Transfer and Administration Agreement dated as of September 24, 2002 (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 Clause (a) of the definition of "Concentration Factor" in Section 1.1 of the TAA is amended in its entirety to read as follows: "(a) in the case of any Commercial Obligor or Hospital Obligor that does not have a Special Concentration Limit (as defined below), 5% of the Class A Net Investment outstanding on such date; provided that, subject to clause (c) below, (i) for so long as Aetna Inc. is rated at least BBB- by Standard & Poor's and at least Baa3 by Moody's and, if rated by Fitch Ratings ("Fitch"), at least BBB- by Fitch, the Concentration Factor for Aetna Inc. shall be 7.0% of the Class A Net Investment outstanding on such date, (ii) for so long as Cigna Corp. is rated at least A- by Standard & Poor's and at least A3 by Moody's and, if rated by Fitch, at least A- by Fitch, the Concentration Factor for Cigna Corp. shall be 10% of the Class A Net Investment outstanding on such date, (iii) for so long as clause (ii) does not apply but Cigna Corp. is rated at least BBB+ by Standard & Poor's and at least Baa1 by Moody's and, if rated by Fitch, at least BBB+ by Fitch, the Concentration Factor for Cigna Corp. shall be 7% of the Class A Net Investment outstanding on such date and (iv) for so long as United Healthcare Corporation is rated at least A- by Standard & Poor's and at least A3 by Moody's and, if rated by Fitch, at least A- by Fitch, the Concentration Factor for United Healthcare Corporation shall be 10% of the Class A Net Investment outstanding on such date;". 1.3 The definition of "Defaulted Receivable" in Section 1.1 of the TAA is amended to delete the words "from the original due date" and to substitute therefor the words "from the original due date when a contract exists with an Originating Entity that is part of the dialysis products division of the Parent Group and otherwise from the original invoice date". 1.4 The definition of "Delinquent Receivable" in Section 1.1 of the TAA is amended to delete the words "from the original due date" and to substitute therefor the words "from the original due date when a contract exists with an Originating Entity that is part of the dialysis products division of the Parent Group and otherwise from the original invoice date". SECTION 2. Conditions Precedent. This Amendment shall become effective and be deemed effective as of the date (the "Effective Date") on which the following conditions precedent have been satisfied: (a) the Agent shall have received counterparts of this Amendment duly executed by the Transferor, the Collection Agent, the Conduit Investors, the Class A Bank Investors, the Class B Investor, 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. 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. ENTERPRISE FUNDING CORPORATION, as a Conduit Investor By: /s/ Kevin P. Burns ---------------------------------------- Name: Kevin P. Burns Title: Vice-President COMPASS US ACQUISITION, LLC, as a Conduit Investor By: /s/ Douglas K. Johnson ---------------------------------------- Name: Douglas K. Johnson Title: President: GIRO MULTI-FUNDING CORPORATION, as a Conduit Investor By: /s/ Frank B. Bilotta ---------------------------------------- Name: Frank B. Bilotta Title: Vice President NMC FUNDING CORPORATION, as Transferor By: /s/ Marc Lieberman ---------------------------------------- Name: Marc Lieberman Title: Treasurer NATIONAL MEDICAL CARE, INC., as Collection Agent By: /s/ Marc Lieberman ---------------------------------------- Name: Marc Lieberman Title: Treasurer Signature Page to Amendment No. 3 BANK OF AMERICA, N.A., as Agent, as an Administrative Agent and as a Class A Bank Investor By: /s/ John K. Svolos ---------------------------------------- Name: John K. Svolos Title: Principal WESTLB AG, NEW YORK BRANCH, as an Administrative Agent and as a Class A Bank Investor By: /s/ Christian C. Brune ---------------------------------------- Name: Christian C. Brune Title: Director, Global Securitization Americas By: /s/ Anne Lacombe ---------------------------------------- Name: Anne Lacombe Title: Director BAYERISCHE LANDESBANK, NEW YORK BRANCH, as an Administrative Agent and as a Class A Bank Investor By: /s/ Alexander Kohnert ---------------------------------------- Name: Alexander Kohnert Title: Senior Vice President By: /s/ Lori-Ann Wynter ---------------------------------------- Name: Lori-Ann Wynter Title: Vice President LANDESBANK HESSEN-THUERINGEN GIROZENTRALE, as a Class A Bank Investor By: /s/ Martin Scheele ---------------------------------------- Name: Dr. Martin Scheele Title: Vice President By: /s/ Jens Doring ---------------------------------------- Name: Jens Doring Title: Associate Signature Page to Amendment No. 3 BANK OF AMERICA, N.A., as a Class B Investor By: /s/ Richard L. Nichols, Jr. ---------------------------------------- Name: Richard L. Nichols, Jr. Title: Managing Director ASSET ONE SECURITIZATION, LLC, as a Conduit Investor By: /s/ Doris J. Hearn ---------------------------------------- Name: Doris J. Hearn Title : Vice President SOCIETE GENERALE, as an Administrative Agent and as a Class A Bank Investor By: /s/ Evelyn Echevarria ---------------------------------------- Name: Evelyn Echevarria Title : Vice President By: /s/ Sharyanne McSwain ---------------------------------------- Name: Sharyanne McSwain Title: Director Signature Page to Amendment No. 3