exv10w1



 







    Exhibit 10.1



 




    AMENDMENT
    NO. 6



 




    Dated as
    of January 19, 2007



 




    to



 




    THIRD
    AMENDED AND RESTATED

    TRANSFER AND ADMINISTRATION AGREEMENT



 




    Dated as
    of October 23, 2003



 



    THIS AMENDMENT NO. 6 (this “Amendment”) dated
    as of January 19, 2007 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 terminate and remove
    Con-Med Supply Company, Inc. (“Con-Med Supply”)
    as a “Transferring Affiliate” under the TAA.



 



    C. The parties hereto have agreed to amend the TAA to
    reflect such termination 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.  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. Exhibit Q to the TAA shall, without further act
    or documentation, be deemed amended to terminate Con-Med Supply
    as a Transferring Affiliate and remove it from the list of
    Transferring Affiliates set forth therein. Accordingly, Con-Med
    Supply shall cease to be a party to the Transferring Affiliate
    Letter and shall have no further rights or obligations
    thereunder, other than those which survive the termination of
    the Transferring Affiliate letter by the express terms thereof.



 



    (a) 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 counterparts of this Amendment (i) duly executed
    by the Transferor, the Collection Agent, the Conduit Investors,
    the Bank Investors, the Administrative Agents and the Agent, and
    (ii) acknowledged and agreed to by Con-Med Supply.



 



    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 (i) 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, and (ii) represents and
    warrants that no Receivables originated by Con-Med Supply are
    currently outstanding.



 



    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.



 



    4.4 Upon the effectiveness of this Amendment, Con-Med
    Supply shall be authorized to file UCC termination statements
    with respect to all financing statements filed against it
    pursuant to the Transaction Documents.



 



    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.



 



    6.1 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.



 



    6.2 Delivery of an executed counterpart of this Amendment
    by facsimile or electronic delivery in portable document format
    (a “PDF”) 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 PDF 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.




    

    2








 






    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




 








    Acknowledged and agreed:




    CON-MED SUPPLY COMPANY, INC.



 


			
	 	    By: 
	
    /s/  Mark
    Fawcett 









    Name:     Mark Fawcett



			
	 	    Title: 
	
    Treasurer



 


 




    Signature
    Page

    Amendment No. 6 to Third Amended and Restated

    Transfer and Administration Agreement













 






    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 an




    Administrative Agent and as a Bank Investor



 


			
	 	    By: 
	
    /s/  Matthew
    Tallo









    Name:     Matthew Tallo



			
	 	    Title: 
	
    Director




 







			
	 	    By: 
	
    /s/  Laura
    Spichiger









    Name:     Laura Spichiger



			
	 	    Title: 
	
    Director




 



    LANDESBANK HESSEN-THUERINGEN

    GIROZENTRALE, as a Bank Investor



 


			
	 	    By: 
	
    /s/  Dr.
    Martin Scheele









    Name:     Dr. Martin Scheele



			
	 	    Title: 
	
    Senior Vice President




 


			
	 	    By: 
	
    /s/  Pia
    Horlebein









    Name:     Pia Horlebein



			
	 	    Title: 
	
    Vice President



 


 




    Signature
    Page

    Amendment No. 6 to Third Amended and Restated

    Transfer and Administration Agreement













 






    GIRO BALANCED FUNDING CORPORATION,




    as a Conduit Investor



 


			
	 	    By: 
	
    /s/  Kevin
    Burns









    Name:     Kevin Burns



			
	 	    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/  Alexander
    Kohnert









    Name:     Lori-Ann Wynter



			
	 	    Title: 
	
    Vice President




 



    BAYERISCHE LANDESBANK, CAYMAN

    ISLANDS BRANCH, as a Bank Investor



 


			
	 	    By: 
	
    /s/  Donna
    Quilty









    Name:     Donna Quilty



			
	 	    Title: 
	
    Vice President




 


			
	 	    By: 
	
    /s/  Lori-Ann
    Wynter









    Name:     Lori-Ann Wynter



			
	 	    Title: 
	
    Vice President



 


 




    Signature
    Page

    Amendment No. 6 to Third Amended and Restated

    Transfer and Administration Agreement













 






    LIBERTY STREET FUNDING CORP.,




    as a Conduit Investor



 


			
	 	    By: 
	
    /s/  Jill
    A. Gordon









    Name:     Jill A. Gordon



			
	 	    Title: 
	
    Vice President




 



    THE BANK OF NOVA SCOTIA, as an




    Administrative Agent and as a Bank Investor



 


			
	 	    By: 
	
    /s/  Norman
    Lasi









    Name:     Norman Lasi



			
	 	    Title: 
	
    Managing Director



 


 




    Signature
    Page

    Amendment No. 6 to Third Amended and Restated

    Transfer and Administration Agreement













 






    AMSTERDAM FUNDING CORPORATION,




    as a Conduit Investor



 


			
	 	    By: 
	
    /s/  Bernard
    J. Angelo









    Name:     Bernard J. Angelo



			
	 	    Title: 
	
    Vice President




 



    ABN AMRO Bank N.V., as an Administrative




    Agent and as a Bank Investor



 


			
	 	    By: 
	
    /s/  Kristina
    Neville









    Name:     Kristina Neville



			
	 	    Title: Vice President
	





 


			
	 	    By: 
	
    /s/  Brandy
    Han









    Name:     Brandy Han



			
	 	    Title: 
	
    Vice President



 


 




    Signature
    Page

    Amendment No. 6 to Third Amended and Restated

    Transfer and Administration Agreement