AMENDMENT NO. 6 Dated as of January 19, 2007 to THIRD AMENDED AND RESTATED TRANSFER AND ADMINISTRATION AGREEMENT Dated as of October 23, 2003
Exhibit 10.1
AMENDMENT
NO. 6
Dated as
of January 19, 2007
to
THIRD
AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
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
as Transferor
| By: |
/s/ Xxxx
Xxxxxxx
|
Name: Xxxx Xxxxxxx
Title: Treasurer
NATIONAL MEDICAL CARE, INC.,
as Collection Agent
as Collection Agent
| By: |
/s/ Xxxx
Xxxxxxx
|
Name: Xxxx Xxxxxxx
| Title: | Treasurer |
Acknowledged and agreed:
CON-MED SUPPLY COMPANY, INC.
| By: |
/s/ Xxxx
Xxxxxxx
|
Name: Xxxx Xxxxxxx
| Title: | Treasurer |
PARADIGM FUNDING LLC,
as a Conduit Investor
| By: |
/s/ Xxxxx
X. Xxxxx
|
Name: Xxxxx X. Xxxxx
Title: Vice President
WESTLB AG, NEW YORK BRANCH, as an
Administrative Agent and as a Bank Investor
| By: |
/s/ Xxxxxxx
Xxxxx
|
Name: Xxxxxxx Xxxxx
| Title: | Director |
| By: |
/s/ Xxxxx
Xxxxxxxxx
|
Name: Xxxxx Xxxxxxxxx
| Title: | Director |
LANDESBANK HESSEN-THUERINGEN
GIROZENTRALE, as a Bank Investor
GIROZENTRALE, as a Bank Investor
| By: |
/s/ Xx.
Xxxxxx Xxxxxxx
|
Name: Xx. Xxxxxx Xxxxxxx
| Title: | Senior Vice President |
| By: |
/s/ Xxx
Xxxxxxxxx
|
Name: Xxx Xxxxxxxxx
| Title: | Vice President |
GIRO BALANCED FUNDING CORPORATION,
as a Conduit Investor
| By: |
/s/ Xxxxx
Xxxxx
|
Name: Xxxxx Xxxxx
| Title: | Vice President |
BAYERISCHE LANDESBANK, NEW YORK BRANCH, as an Administrative
Agent
| By: |
/s/ Xxxxxxxxx
Xxxxxxx
|
Name: Xxxxxxxxx Xxxxxxx
Title: Senior Vice President
| By: |
/s/ Xxxxxxxxx
Xxxxxxx
|
Name: Xxxx-Xxx Xxxxxx
| Title: | Vice President |
BAYERISCHE LANDESBANK, CAYMAN
ISLANDS BRANCH, as a Bank Investor
ISLANDS BRANCH, as a Bank Investor
| By: |
/s/ Xxxxx
Xxxxxx
|
Name: Xxxxx Xxxxxx
| Title: | Vice President |
| By: |
/s/ Xxxx-Xxx
Xxxxxx
|
Name: Xxxx-Xxx Xxxxxx
| Title: | Vice President |
LIBERTY STREET FUNDING CORP.,
as a Conduit Investor
| By: |
/s/ Xxxx
X. Xxxxxx
|
Name: Xxxx X. Xxxxxx
| Title: | Vice President |
THE BANK OF NOVA SCOTIA, as an
Administrative Agent and as a Bank Investor
| By: |
/s/ Xxxxxx
Xxxx
|
Name: Xxxxxx Xxxx
| Title: | Managing Director |
AMSTERDAM FUNDING CORPORATION,
as a Conduit Investor
| By: |
/s/ Xxxxxxx
X. Xxxxxx
|
Name: Xxxxxxx X. Xxxxxx
| Title: | Vice President |
ABN AMRO Bank N.V., as an Administrative
Agent and as a Bank Investor
| By: |
/s/ Xxxxxxxx
Xxxxxxx
|
Name: Xxxxxxxx Xxxxxxx
| Title: Vice President |
| By: |
/s/ Xxxxxx
Xxx
|
Name: Xxxxxx Xxx
| Title: | Vice President |
