Exhibit 2.19
EXECUTION
VERSION
FOURTH
AMENDED AND RESTATED
among
PARADIGM
FUNDING LLC,
GIRO
BALANCED FUNDING CORPORATION,
LIBERTY
STREET FUNDING LLC,
as
Conduit Investors
NMC
FUNDING CORPORATION,
as
Transferor
NATIONAL
MEDICAL CARE, INC.,
as
Collection Agent
THE
FINANCIAL INSTITUTIONS PARTIES HERETO,
as Bank
Investors
as an
Administrative Agent
THE BANK
OF NOVA SCOTIA
as an
Administrative Agent
and
as an
Administrative Agent and as Agent
Dated as
of October 16, 2008
TABLE OF
CONTENTS
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ARTICLE I
DEFINITIONS
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Section 1.1.
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Certain Defined Terms
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1
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Section 1.2.
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Other Terms
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19
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Section 1.3.
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Computation of Time Periods
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19
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Section 1.4.
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Amendment and Restatement
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19
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Section 1.5.
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Funding on Effective Date
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19
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ARTICLE II
PURCHASE AND SETTLEMENTS
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Section 2.1.
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Facility
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19
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Section 2.2.
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Transfers; Certificates; Eligible
Receivables(a) Incremental Transfers
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19
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Section 2.3.
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Selection of Tranche Periods and Tranche Rates
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21
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Section 2.4.
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Discount, Fees and Other Costs and Expenses
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23
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Section 2.5.
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Non-Liquidation Settlement and Reinvestment Procedures
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23
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Section 2.6.
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Liquidation Settlement Procedures
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23
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Section 2.7.
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Fees
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24
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Section 2.8.
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Protection of Ownership Interest of the Investors; Special
Accounts and Concentration Account
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24
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Section 2.9.
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Deemed Collections; Application of Payments
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25
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Section 2.10.
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Payments and Computations, Etc
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26
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Section 2.11.
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Reports
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26
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Section 2.12.
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Collection Account
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26
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Section 2.13.
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Sharing of Payments, Etc
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27
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Section 2.14.
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Right of Setoff
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27
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Section 2.15.
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Additional Transferring Affiliates
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27
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
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Section 3.1.
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Representations and Warranties of the Transferor
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28
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Section 3.2.
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Reaffirmation of Representations and Warranties by the Transferor
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31
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Section 3.3.
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Representations and Warranties of the Collection Agent
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31
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ARTICLE IV
CONDITIONS PRECEDENT
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Section 4.1.
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Conditions to Closing
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32
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ARTICLE V
COVENANTS
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Section 5.1.
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Affirmative Covenants of Transferor
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34
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Section 5.2.
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Negative Covenants of the Transferor
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37
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Section 5.3.
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Affirmative Covenants of the Collection Agent
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40
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Section 5.4.
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Negative Covenants of the Collection Agent
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41
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ARTICLE VI
ADMINISTRATION AND COLLECTION
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Section 6.1.
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Appointment of Collection Agent
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41
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Section 6.2.
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Duties of Collection Agent
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42
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Section 6.3.
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Right After Designation of New Collection Agent
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43
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Section 6.4.
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Collection Agent Default
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43
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Section 6.5.
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Responsibilities of the Transferor
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44
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i
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ARTICLE VII
TERMINATION EVENTS
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Section 7.1.
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Termination Events
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44
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Section 7.2.
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Termination
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46
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ARTICLE VIII
INDEMNIFICATION; EXPENSES; RELATED MATTERS
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Section 8.1.
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Indemnities by the Transferor
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46
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Section 8.2.
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Indemnity for Taxes, Reserves and Expenses
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48
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Section 8.3.
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Taxes
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50
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Section 8.4.
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Other Costs, Expenses and Related Matters
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51
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Section 8.5.
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Reconveyance Under Certain Circumstances
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51
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ARTICLE IX
THE AGENT; BANK COMMITMENT; THE ADMINISTRATIVE AGENTS
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Section 9.1.
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Authorization and Action
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52
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Section 9.2.
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Agent’s Reliance, Etc
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52
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Section 9.3.
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Credit Decision
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53
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Section 9.4.
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Indemnification of the Agent
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53
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Section 9.5.
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Successor Agent
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53
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Section 9.6.
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Payments by the Agent
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53
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Section 9.7.
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Bank Commitment; Assignment to Bank Investors
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53
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Section 9.8.
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Appointment of Administrative Agents
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56
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Section 9.9.
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Administrative Agent’s Reliance, Etc
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56
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Section 9.10.
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Indemnification of the Administrative Agents
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57
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Section 9.11.
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Successor Administrative Agents
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57
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Section 9.12.
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Payments by the Administrative Agents
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57
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ARTICLE X
MISCELLANEOUS
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Section 10.1.
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Term of Agreement
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58
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Section 10.2.
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Waivers; Amendments
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58
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Section 10.3.
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Notices
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58
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Section 10.4.
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Governing Law; Submission to Jurisdiction; Integration
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60
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Section 10.5.
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Severability; Counterparts
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60
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Section 10.6.
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Successors and Assigns
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60
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Section 10.7.
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Waiver of Confidentiality
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61
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Section 10.8.
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Confidentiality Agreement
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61
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Section 10.9.
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No Bankruptcy Petition Against Conduit Investors
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61
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Section 10.10.
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No Recourse Against Stockholders, Officers or Directors
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62
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Section 10.11.
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Characterization of the Transactions Contemplated by the
Agreement
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62
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ii
SCHEDULES
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SCHEDULE I
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Notice Addresses of Bank Investors
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66
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SCHEDULE II
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Commitments of Bank Investors
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67
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EXHIBITS
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EXHIBIT A
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Forms of Contracts
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A-1
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EXHIBIT B
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Credit and Collection Policies and Practices
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B-1
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EXHIBIT C
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List of Special Account Banks, Designated Account Agents and
Concentration Bank
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C-1
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EXHIBIT D-1
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Form of Special Account Letter
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D-1
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EXHIBIT D-2
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Form of Concentration Account Agreement
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D-2
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EXHIBIT E
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Form of Investor Report
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E-1
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EXHIBIT F
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Form of Transfer Certificate
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F-1
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EXHIBIT G
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Form of Assignment and Assumption Agreement
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G-1
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EXHIBIT H
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List of Actions and Suits (Sections 3.1(g), 3.1(k) and
3.3(e))
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H-1
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EXHIBIT I
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Location of Records
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I-1
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EXHIBIT J
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Form of Business Associate Agreement
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J-1
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EXHIBIT K
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Forms of Opinions of Counsel
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K-1
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EXHIBIT L
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Forms of Secretary’s Certificate
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L-1
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EXHIBIT M
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Form of Certificate
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M-1
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EXHIBIT N
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List of Approved Fiscal Intermediaries
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N-1
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EXHIBIT O
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Form of Transferring Affiliate Letter
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O-1
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EXHIBIT P
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Form of Parent Agreement
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P-1
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EXHIBIT Q
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List of Transferring Affiliates
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Q-1
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EXHIBIT R
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Form of Account Agent Agreement
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R-1
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EXHIBIT S
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List of Closing Documents
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S-1
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EXHIBIT T
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Form of Agreed Upon Procedures Report
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T-1
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EXHIBIT U
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Form of “No Material Weakness” Report
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U-1
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iii
FOURTH
AMENDED AND RESTATED TRANSFER
AND ADMINISTRATION AGREEMENT
FOURTH AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION
AGREEMENT (this “
Agreement”), dated as of
October 16, 2008, by and among NMC FUNDING CORPORATION, a
Delaware corporation, as transferor (in such capacity, the
“
Transferor”), NATIONAL MEDICAL CARE, INC., a
Delaware corporation, as the initial “Collection
Agent”, PARADIGM FUNDING LLC, a Delaware limited liability
company (“
Paradigm”), as a Conduit Investor,
GIRO BALANCED FUNDING CORPORATION, a Delaware Corporation
(“
GBFC”), as a Conduit Investor, LIBERTY STREET
FUNDING LLC, a Delaware limited liability company
(“
Liberty Street”), as a Conduit Investor, the
FINANCIAL INSTITUTIONS PARTIES HERETO, as Bank Investors,
BAYERISCHE LANDESBANK,
NEW YORK BRANCH
(“
BAYERNLB”), as an Administrative Agent, THE
BANK OF NOVA SCOTIA (“
Scotiabank”), as an
Xxxxxxxxxxxxxx Xxxxx, XXXXXX XX, XXX XXXX BRANCH (formerly known
as Westdeutsche Landesbank Girozentrale,
New York Branch)
(“
WestLB”), as an Administrative Agent and as
agent (in such capacity, the “
Agent”) for the
Investors.
PRELIMINARY
STATEMENTS
WHEREAS, the Transferor, the Collection Agent, the Conduit
Investors, the Bank Investors, the Administrative Agents, and
the Agent (other than Scotiabank and Liberty Street) are parties
to that certain Third Amended and Restated
Transfer and
Administration Agreement dated as of October 23, 2003 (as
amended prior to the date hereof, the “
Existing
TAA”); and
WHEREAS, the parties hereto desire to amend and restate the
Existing TAA in its entirety.
NOW, THEREFORE, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Certain
Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
“Account Agent Agreement” means an agreement in
substantially the form of Exhibit R hereto.
“
Administrative Agent” means (i) WestLB
AG,
New York Branch, as administrative agent for the Related
Group that includes Paradigm, (ii) Bayerische Landesbank,
New York Branch, as administrative agent for the Related Group
that includes GBFC or (iii) The Bank of Nova Scotia, as
administrative agent for the Related Group that includes Liberty
Street.
“Administration Fee” means the fee payable by
the Transferor to the Agent pursuant to Section 2.7(iii)
hereof, the terms of which are set forth in the Agent Fee Letter.
“Adverse Claim” means a lien, security
interest, charge or encumbrance, or other right or claim in, of
or on any Person’s assets or properties in favor of any
other Person (including any UCC financing statement or any
similar instrument filed against such Person’s assets or
properties), other than customary rights of set-off and other
similar claims.
“Affected Assets” means, collectively, the
Receivables and the Related Security, Collections and Proceeds
relating thereto.
“Affiliate” means, with respect to any Person,
any other Person directly or indirectly controlling, controlled
by, or under direct or indirect common control with, such
Person. A Person shall be deemed to control another Person if
the controlling Person possesses, directly or indirectly, the
power to direct or cause the direction of the management or
policies of the controlled Person, whether through ownership of
voting stock, by contract or otherwise.
“Agent” means WestLB, in its capacity as agent
for the Investors, and any successor thereto appointed pursuant
to Article IX.
“Agent Fee Letter” means the Amended and
Restated Agent Fee Letter dated as of the Closing Date between
the Transferor and the Agent relating to certain fees payable by
the Transferor to the Agent hereunder, as amended, restated,
supplemented or otherwise modified from time to time.
“Aggregate Unpaids” means, at any time, an
amount equal to the sum of (i) the aggregate accrued and
unpaid Discount with respect to all Tranche Periods at such
time, (ii) the Net Investment at such time, and
(iii) all other amounts owed (whether due or accrued)
hereunder by the Transferor to the Investors at such time.
“Agreement” shall have the meaning specified in
the Preamble to this Agreement.
“Amendment Agreement” means the amendment
agreement dated as of the Closing Date among the parties to the
Existing TAA.
“Applicable Margin” means 2.00%
“Assignment Amount” with respect to a Bank
Investor shall mean at any time an amount equal to the lesser of
(i) such Bank Investor’s Pro Rata Share of the Net
Investment held by the Conduit Investor in the same Related
Group at such time and (ii) such Bank Investor’s
unused Commitment.
“Assignment and Assumption Agreement” means an
Assignment and Assumption Agreement substantially in the form of
Exhibit G attached hereto.
“Auditor” shall have the meaning specified in
Section 6.2(c).
“Bank Investors” means each financial
institution identified as a “Bank Investor” on
Schedule II and their respective successors and assigns.
“Bankruptcy Code” means the United States
Bankruptcy Code, 11 U.S.C. § 101 et seq., as
amended.
“
Base Rate” or “
BR” means,
with respect to the Investors in any Related Group, a rate per
annum equal to the greater of (i) the prime rate of
interest announced by the Administrative Agent for such Related
Group from time to time, changing when and as said prime rate
changes (such rate not necessarily being the lowest or best rate
charged by such Administrative Agent) and (ii) the sum of
(a) 1.50% and (b) the rate equal to the weighted
average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not
a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of
New York, or, if such rate is not so
published for any day that is a Business Day, the average of the
quotations for such day for such transactions received by such
Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
“Bayerische Landesbank, Cayman Islands Branch”
means Bayerische Landesbank, Cayman Islands Branch, together
with its successors and permitted assigns.
“
BayernLB” means Bayerische Landesbank,
New
York Branch, together with its successors and permitted assigns.
“Benefit Plan” means any employee benefit plan
as defined in Section 3(3) of ERISA in respect of which the
Transferor, the Seller or any ERISA Affiliate of the Transferor
or the Seller is, or at any time during the immediately
preceding six years was, an “employer” as defined in
Section 3(5) of ERISA.
“BMA” means Bio-Medical Applications Management
Company, Inc., a Delaware corporation, and its successors and
permitted assigns.
“BMA Transfer Agreement” means that certain
Receivables Purchase Agreement dated as of August 28, 1997
by and between BMA, as seller, and NMC, as purchaser, as the
same may be amended, restated, supplemented or otherwise
modified from time to time.
“
Business Day” means any day excluding
Saturday, Sunday and any day on which banks in
New York,
New
York are authorized or required by law to close, and, when used
with respect to the determination of any Eurodollar Rate or any
notice with respect thereto, any such day which is also a day
for trading by and between banks in United States dollar
deposits in the London interbank market.
“BR Tranche” means a Tranche as to which
Discount is calculated at the Base Rate.
“BR Tranche Period” means, with respect to
a BR Tranche for the Investors in any Related Group, either
(i) prior to the Termination Date, a period of up to
30 days requested by the Transferor and agreed to by the
Administrative Agent for such Related Group, commencing on a
Business Day requested by the Transferor and agreed to by such
Administrative Agent, or (ii) after the Termination Date, a
period of one day. If such BR Tranche Period would end on a
day which is not a Business Day, such BR Tranche Period
shall end on the next succeeding Business Day.
“Capitalized Lease” of a Person means any lease
of property by such Person as lessee which would be capitalized
on a balance sheet of such Person prepared in accordance with
GAAP.
2
“Certificate” means the certificate issued to
the Agent for the benefit of the Investors pursuant to
Section 2.2(d) of the Existing TAA.
“CHAMPUS/VA” means, collectively, (i) the
Civilian Health and Medical Program of the Uniformed Service, a
program of medical benefits covering retirees and dependents of
a member or a former member of a uniformed service, provided,
financed and supervised by the United States Department of
Defense and established by 10 USC § 1071
et seq. and (ii) the Civilian Health and
Medical Program of Veterans Affairs, a program of medical
benefits covering dependents of veterans, administered by the
United States Veterans’ Administration and Department of
Defense and established by 38 USC § 1713
et seq.
“CHAMPUS/VA Regulations” means collectively,
all regulations of the Civilian Health and Medical Program of
the Uniformed Services and the Civilian Health and Medical
Program of Veterans Affairs, including (a) all federal
statutes (whether set forth in 10 USC 1071, 38 USC
1713 or elsewhere) affecting CHAMPUS/VA; and (b) all
applicable provisions of all rules, regulations (including
32 CFR 199 and 38 CFR 17.54), manuals, orders, and
administrative, reimbursement and other guidelines of all
Governmental Authorities (including, without limitation, HHS,
the Department of Defense, the Veterans’ Administration,
the Department of Transportation, the Assistant Secretary of
Defense (Health Affairs), and the Office of CHAMPUS, or any
Person or entity succeeding to the functions of any of the
foregoing) promulgated pursuant to or in connection with any of
the foregoing (whether or not having the force of law), in each
case as may be amended, supplemented or otherwise modified from
time to time.
“Change of Control” means if the general
partner of the FME KGaA charged with management of FME KGaA
shall at any time fail to be a Subsidiary of Fresenius SE, or if
Fresenius SE shall fail at any time to own and control more than
twenty-five percent (25%) of the Voting Stock of FME KGaA.
“Change of Control Percentage” means the
greater of (a) thirty-five percent (35%) or (b) the
percentage of Voting Stock in FME KGaA held and owned by
Fresenius SE.
“Closing Date” means October 16, 2008.
“CMS” means the Centers for Medicare and
Medicaid Services (formerly known as the Health Care Financing
Administration), an agency of the HHS charged with administering
and regulating, among other things, certain aspects of Medicaid
and Medicare.
“Code” means the Internal Revenue Code of 1986,
as amended.
“Collateral Agent” means with respect to the
Related Group that includes Paradigm, WestLB AG (formerly known
as Westdeutsche Landesbank Girozentrale), as collateral agent
for any related Liquidity Provider, any related Credit Support
Provider, the holders of Commercial Paper issued by Paradigm and
certain other parties.
“Collection Account” means the account,
established by the Agent, for the benefit of the Investors,
pursuant to Section 2.12.
“Collection Agent” means at any time the Person
then authorized pursuant to Section 6.1 to service,
administer and collect Receivables.
“Collection Agent Default” has the meaning
specified in Section 6.4 hereof.
“Collection Delay Period” means 10 days or
such other number of days as the Agent may select upon three
Business Days’ notice to the Transferor.
“Collections” means, with respect to any
Receivable, all cash collections and other cash proceeds of such
Receivable, including, without limitation, all Finance Charges,
if any, and cash proceeds of Related Security with respect to
such Receivable.
“Commercial Obligor” means any Obligor referred
to in clause (C) or (E) of the definition of
“Obligor” contained in this Section 1.1 hereof.
“Commercial Paper” means, with respect to any
Conduit Investor, the promissory notes issued by such Conduit
Investor in the commercial paper market.
“Commitment” means (i) with respect to
each Bank Investor party hereto, the agreement of such Bank
Investor to make acquisitions from the Transferor or the Conduit
Investor in its Related Group in accordance herewith in an
amount not to exceed the dollar amount set forth opposite such
Bank Investor’s name on Schedule II hereto under the
heading “Commitment”, minus the dollar
amount of any Commitment or portion thereof assigned pursuant to
an Assignment and Assumption Agreement plus the dollar
amount of any
3
increase to such Bank Investor’s Commitment consented to by
such Bank Investor prior to the time of determination,
(ii) with respect to any assignee of a Bank Investor party
hereto taking pursuant to an Assignment and Assumption
Agreement, the commitment of such assignee to make acquisitions
from the Transferor or the Conduit Investor in its Related Group
not to exceed the amount set forth in such Assignment and
Assumption Agreement minus the dollar amount of any
Commitment or portion thereof assigned pursuant to an Assignment
and Assumption Agreement prior to such time of determination and
(iii) with respect to any assignee of an assignee referred
to in clause (ii), the commitment of such assignee to make
acquisitions from the Transferor or the Conduit Investor in its
Related Group not to exceed the amount set forth in an
Assignment and Assumption Agreement between such assignee and
its assign.
“Commitment Termination Date” means
October 15, 2009, or such later date to which the
Commitment Termination Date may be extended by Transferor, the
Agent and the Bank Investors.
“Concentration Account” means a special
depositary account in the name of the Transferor maintained at a
bank acceptable to the Agent for the purpose of receiving
Collections remitted from the Special Accounts and the
Intermediate Concentration Account.
“Concentration Account Agreement” means an
agreement substantially in the form attached as
Exhibit D-2
hereto among the Transferor, the Concentration Account Bank and
the Agent.
“Concentration Account Bank” means the bank
holding the Concentration Account.
“Concentration Account Notice” means a notice,
in substantially the form of the Notice of Effectiveness
attached to the Concentration Account Agreement, from the Agent
to the Concentration Account Bank.
“Concentration Factor” means for any Designated
Obligor on any date of determination (calculated prior to the
payment of any Transfer Price to be made on such date but as if
such payment had been made):
(a) in the case of any Commercial Obligor or Hospital
Obligor that does not have a Special Concentration Limit (as
defined below), 2.5% of the Net Receivables Balance outstanding
on such date; provided that, subject to clause (c)
below, the Concentration Factor for each of Aetna, Inc., Cigna
Corp., Wellpoint Inc. and United Healthcare Insurance Company,
and any successor thereto, shall be (i) for so long as such
Obligor 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, 10.0% of the Net Receivables Balance outstanding on
such date and (ii) for so long as clause (i) does not
apply but such Obligor is rated at least BBB- by
Standard & Poor’s and at least Baa3 by
Moody’s and, if rated by Fitch, at least BBB- by Fitch,
7.0% of the Net Receivables Balance outstanding on such date;
(b) in the case of any US Government Obligor that does not
have a Special Concentration Limit, 80% of the Net Investment
outstanding on such date; or
(c) in the case of any Obligor (including any Obligor
described in clauses (a) and (b)), such higher amount
determined by the Agent (with the consent of each Administrative
Agent) or such lower amount determined by any Administrative
Agent in the reasonable exercise of its good faith judgment and
disclosed in a written notice delivered to the Transferor and
the other Administrative Agent (any such higher or lower amount
being a “Special Concentration Limit”).
“Conduit Investor” means Paradigm, GBFC or
Liberty Street Funding LLC.
“Confidential Information” shall have the
meaning specified in Section 5.1(d).
“Contract” means an agreement between an
Originating Entity and an Obligor (including, without
limitation, an oral agreement, a written contract, an invoice or
an open account agreement) pursuant to or under which such
Obligor shall be obligated to pay for services or merchandise
from time to time; provided that, in order to be an
“Eligible Receivable”, a Receivable must arise from a
Contract which (i) if in writing, is in substantially the
form of one of the forms of written contract set forth in
Exhibit A hereto or otherwise approved by each
Administrative Agent, and (ii) if an open account
agreement, is evidenced by one of the forms of invoices set
forth in Exhibit A hereto or otherwise approved by each
Administrative Agent.
“Contractual Adjustment” means, with respect to
any Receivable, an amount by which the outstanding principal
amount of such Receivable is reduced as a result of
(i) Medicare or Medicaid program funding and fee
requirements or (ii) any other reasonable and customary
insurance company or other charge or reimbursement policies or
procedures.
“Contractual Adjustment Amount” means, with
respect to any Receivable originated by a member of the Spectra
Renal Management Group, at any time, an amount equal to
(i) 75% of the original outstanding
4
principal amount of such Receivable (excluding any accrued and
outstanding Finance Charges related thereto) minus
(ii) the amount of any Contractual Adjustments already
granted with respect to such Receivable.
“CP Rate” means, for any CP Tranche Period
for any Conduit Investor, the per annum rate equivalent
to the weighted average cost (as determined by the related
Administrative Agent, and which shall include (without
duplication) the fees and commissions of placement agents and
dealers, incremental carrying costs incurred with respect to
Commercial Paper maturing on dates other than those on which
corresponding funds are received by such Conduit Investor, other
borrowings by such Conduit Investor and any other costs
associated with the issuance of Commercial Paper) of or related
to the issuance of Commercial Paper that are allocated, in whole
or in part, by such Conduit Investor or its related
Administrative Agent to fund or maintain the related Tranche
during such CP Tranche Period (and which may also be
allocated in part to the funding of other assets of the Conduit
Investor); provided, however, that if any
component of any such rate is a discount rate, in calculating
the “CP Rate” for such Tranche for such CP
Tranche Period, the related Administrative Agent shall for
such component use the rate resulting from converting such
discount rate to an interest bearing equivalent rate per
annum.
“CP Tranche” means a Tranche as to which
Discount is calculated at a CP Rate.
“CP Tranche Period” means, with respect to
a CP Tranche for any Conduit Investor, (i) initially, the
period commencing on (and including) the date such CP Tranche is
established and ending on (and including) the next succeeding CP
Tranche Period End Date, and (ii) thereafter, each
successive period commencing on (but excluding) a CP
Tranche Period End Date and ending on (and including) the
next succeeding CP Tranche Period End Date; provided that,
from and after the Termination Date, each CP Tranche Period
shall be such period as may be selected pursuant to
Section 2.3(b).
“CP Tranche Period End Date” means the
last day of each calendar month.
“Credit and Collection Policy” shall mean the
Transferor’s credit and collection policy or policies and
practices, relating to Contracts and Receivables existing on the
date hereof and referred to in Exhibit B attached hereto,
as modified from time to time in compliance with
Section 5.2(c).
“Credit Support Agreement” means, with respect
to any Conduit Investor, an agreement between such Conduit
Investor and a Credit Support Provider evidencing the obligation
of such Credit Support Provider to provide credit support to
such Conduit Investor in connection with the issuance by such
Conduit Investor of Commercial Paper.
“Credit Support Provider” means, with respect
to any Conduit Investor, the Person or Persons who provides
credit support to such Conduit Investor in connection with the
issuance by such Conduit Investor of Commercial Paper.
“Deemed Collections” means any Collections on
any Receivable deemed to have been received pursuant to
Section 2.9(a) or (b) hereof.
“Default Ratio” means the ratio (expressed as a
percentage) computed as of the last day of each calendar month
by dividing (i) the aggregate Outstanding Balance of all
Receivables that became Defaulted Receivables during such month
together with all Receivables under the Medicare or Medicaid
Program that were deemed disputed as provided for in the
proviso to clause (xi) of the definition of
“Eligible Receivables” during such month, by
(ii) the aggregate Outstanding Balance of Receivables that
shall have been acquired by the Seller during the month
occurring nine months prior to such calendar month.
“Defaulted Receivable” means a Receivable:
(i) as to which any payment, or part thereof, remains
unpaid for over 270 days 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 for such Receivable; (ii) as
to which an Event of Bankruptcy has occurred and is continuing
with respect to the Obligor thereof; (iii) which has been
identified by the Transferor, any Originating Entity or the
Collection Agent as uncollectible (including, without
limitation, any Receivable that is written off by the
Transferor, any Originating Entity or the Collection Agent); or
(iv) which, consistent with the Credit and Collection
Policy, should be written off as uncollectible.
“Delinquent Receivable” means a Receivable:
(i) as to which any payment, or part thereof, remains
unpaid for more than 90 days 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 for such Receivable and
(ii) which is not a Defaulted Receivable.
5
“Designated Account Agent” means, in the case
of any Originating Entity, an Affiliate thereof that
(i) is, directly or indirectly, a wholly-owned Subsidiary
of FMCH, (ii) has agreed to maintain a deposit account for
the benefit of such Originating Entity to which Obligors in
respect of such Originating Entity have been directed to remit
payments on Receivables, and (iii) shall have executed and
delivered to the Agent an Account Agent Agreement.
“Designated Obligor” means, at any time, each
Obligor; provided, however, that any Obligor shall
cease to be a Designated Obligor upon notice to the Transferor
from any Administrative Agent, delivered at any time (with a
copy to the other Administrative Agents).
“Dilution Horizon” means the ratio (expressed
as a percentage) computed as of the last day of each calendar
month by dividing (i) the aggregate Outstanding Balance of
all Receivables acquired by the Transferor during the calendar
month preceding such calendar month by (ii) the Net
Receivables Balance as of such last day of such calendar month.
“Dilution Ratio” means, with respect to any
calendar month, the greater of (a) the ratio (expressed as
a percentage) computed as of the last day of such calendar month
by dividing (i) the aggregate amount of any reductions to
or cancellations of the respective Outstanding Balances of the
Receivables as a result of any defective, rejected or returned
merchandise or services and all credits, rebates, discounts,
disputes, warranty claims, repossessed or returned goods,
chargebacks, allowances and any other billing and other
adjustment (whether effected through the granting of credits
against the applicable Receivables or by the issuance of a check
or other payment in respect of (and as payment for) such
reduction) by the Seller, the Transferor or the Collection
Agent, provided to Obligors in respect of Receivables during
such month, excluding (w) any Pre-Arranged Contractual
Adjustment reflected in the initial Outstanding Balance of the
applicable Receivable, (x) volume rebates paid in cash by
the Dialysis Products Division and (y) credit memos for
future purchases (it being understood and agreed that any
Receivables arising from such purchases will have an initial
Outstanding Balance that reflects such credit memos) by
(ii) the aggregate Outstanding Balance of all Receivables
which arose during the preceding month and (b) 6.0%.
“Dilution Reserve” means, at any time, an
amount equal to the product of (i) the Dilution Reserve
Percentage and (ii) the Net Receivables Balance on such
date.
“Dilution Reserve Percentage” means, on any
day, an amount equal to:
[ (1.5 x ADR) + [(DS − ADR) x (DS/ADR)]] x DH
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Where:
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ADR
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=
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the average Dilution Ratio in respect of the 12 calendar month
period then most recently ended.
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DS
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=
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the highest Dilution Ratio at any time during the 12 calendar
month period then most recently ended.
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DH
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=
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the Dilution Horizon on such date.
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“Discount” means, with respect to any
Tranche Period:
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Where:
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TR
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=
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the Tranche Rate applicable to such Tranche Period.
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TNI
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=
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the portion of the Net Investment allocated to such
Tranche Period.
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AD
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=
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the actual number of days during such Tranche Period.
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provided, however, that no provision of this
Agreement shall require the payment or permit the collection of
Discount in excess of the maximum amount permitted by applicable
law; and provided, further, that Discount shall
not be considered paid by any distribution if at any time such
distribution is rescinded or must be returned for any reason.
“Discount Reserve” means, at any time, an
amount equal to:
TD + LY
6
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Where:
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TD
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=
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the sum of the unpaid Discount for all Tranche Periods to
which any portion of the Net Investment is allocated.
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LY
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=
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the Liquidation Yield.
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“Early Collection Fee” means, for any
Tranche Period (such Tranche Period to be determined
without regard to the last sentence in Section 2.3(a)
hereof) during which the portion of the Net Investment that was
allocated to such Tranche Period is reduced for any reason
whatsoever, the excess, if any, of (i) the additional
Discount that would have accrued during such Tranche Period
(or, in the case of a CP Tranche Period, during the period
until the maturity date of the Commercial Paper allocated to
fund or maintain such Net Investment) if such reductions had not
occurred, minus (ii) the income, if any, received by the
recipient of such reductions from investing the proceeds of such
reductions.
“Effective Date” has the meaning specified in
Section 1.4.
“Eligible Investments” means any of the
following (a) negotiable instruments or securities
represented by instruments in bearer or registered or in
book-entry form which evidence (i) obligations fully
guaranteed by the United States of America; (ii) time
deposits in, or bankers acceptances issued by, any depositary
institution or trust company incorporated under the laws of the
United States of America or any state thereof and subject to
supervision and examination by Federal or state banking or
depositary institution authorities; provided,
however, that at the time of investment or contractual
commitment to invest therein, the certificates of deposit or
short-term deposits, if any, or long-term unsecured debt
obligations (other than such obligation whose rating is based on
collateral or on the credit of a Person other than such
institution or trust company) of such depositary institution or
trust company shall have a credit rating from Xxxxx’x and
S&P of at least
“P-1”
and
“A-1”,
respectively, in the case of the certificates of deposit or
short-term deposits, or a rating not lower than one of the two
highest investment categories granted by Xxxxx’x and by
S&P; (iii) certificates of deposit having, at the time
of investment or contractual commitment to invest therein, a
rating from Xxxxx’x and S&P of at least
“P-1”
and
A-1”,
respectively; or (iv) investments in money market funds
rated in the highest investment category or otherwise approved
in writing by the applicable rating agencies; (b) demand
deposits in any depositary institution or trust company referred
to in (a) (ii) above; (c) commercial paper (having
original or remaining maturities of no more than 30 days)
having, at the time of investment or contractual commitment to
invest therein, a credit rating from Xxxxx’x and S& P
of at least
“P-1”
and
“A-1”,
respectively; and (e) repurchase agreements involving any
of the Eligible Investments described in clauses (a)(i),
(a)(iii) and (d) hereof so long as the other party to the
repurchase agreement has at the time of investment therein, a
rating from Xxxxx’x and S&P of at least
“P-1”
and
“A-1”,
respectively.
“Eligible Receivable” means, at any time, any
Receivable:
(i) which has been (A) originated by the Seller or a
Transferring Affiliate, (B) sold by the applicable
Transferring Affiliate to the Seller pursuant to (and in
accordance with) the Transferring Affiliate Letter or the BMA
Transfer Agreement, free and clear of any Adverse Claim, in the
case of a Receivable originated by a Transferring Affiliate, and
(C) sold to the Transferor pursuant to (and in accordance
with) the Receivables Purchase Agreement, with the effect that
the Transferor has good title thereto, free and clear of all
Adverse Claims;
(ii) which (together with the Collections and Related
Security related thereto) has been the subject of either a valid
transfer and assignment from the Transferor to the Agent, on
behalf of the Investors, of all of the Transferor’s right,
title and interest therein or the grant of a first priority
perfected security interest herein (and in the Collections and
Related Security related thereto), effective until the
termination of this Agreement;
(iii) the Obligor of which (A) is a United States
resident, (B) is a Designated Obligor at the time of the
initial creation of an interest therein hereunder, (C) is
not an Affiliate of any Originating Entity or any of the parties
hereto, and (D) other than in the case of any Obligor of
the type described in clause (A), (B) or (F) of the
definition herein of “Obligor”, is not a government or
a governmental subdivision or agency;
(iv) which is not a Defaulted Receivable at the time of the
initial creation of an interest therein hereunder;
(v) which is not a Delinquent Receivable at the time of the
initial creation of an interest of the Agent or any Investor
therein;
7
(vi) which, (A) arises pursuant to a Contract with
respect to which each of the Seller and the Transferor has
performed all material obligations required to be performed by
it thereunder, including without limitation shipment of the
merchandise
and/or the
performance of the services purchased thereunder; (B) has
been billed in accordance with the Credit and Collection Policy
and in accordance with such requirements (including any
requirements that relate to the timing of billing) as may have
been imposed by the applicable Obligor thereon (including,
without limitation, any Official Body associated with any of the
CHAMPUS/VA, Medicaid or Medicare programs); and
(C) according to the Contract related thereto, is required
to be paid in full upon receipt by the Obligor thereof of the
invoice related thereto or at a later time not to exceed
90 days from the original billing date therefor;
(vii) which is an “eligible asset” as defined in
Rule 3a-7
under the Investment Company Act of 1940, as amended;
(viii) a purchase of which with the proceeds of Commercial
Paper would constitute a “current transaction” within
the meaning of Section 3(a)(3) of the Securities Act of
1933, as amended;
(ix) which is an “account” or “general
intangible” within the meaning of Article 9 of the UCC
of all applicable jurisdictions;
(x) which is denominated and payable only in United States
dollars in the United States;
(xi) which, to the knowledge of the Transferor, the Seller
and the applicable Transferring Affiliate, after due enquiry in
accordance with customary practice, (A) arises under a
Contract that has been duly authorized and that, together with
the Receivable related thereto, is in full force and effect and
constitutes the legal, valid and binding obligation of the
related Obligor enforceable against such Obligor in accordance
with its terms, (B) is not subject to any litigation,
dispute, counterclaim or other defense and (C) is not
subject to any offset other than as set forth in the related
Contract; provided, however, that for the purposes
of this clause (xi), any Receivable under the Medicare, Medicaid
or CHAMPUS/VA program as to which any payment, or part thereof,
remains unpaid for 270 days or more from the original
invoice date shall be deemed to be a disputed Receivable and,
further, any Receivable, for which the Transferor receives a
partial payment that is below the estimated value of such
Receivable, net of Contractual Adjustments, shall be deemed to
be a disputed Receivable;
(xii) which, together with the Contract related thereto,
does not contravene in any material respect any laws, rules or
regulations applicable thereto (including, without limitation,
(A) laws, rules and regulations relating to healthcare,
insurance, usury, consumer protection, truth in lending, fair
credit billing, fair credit reporting, equal credit opportunity,
fair debt collection practices and privacy and
(B) CHAMPUS/VA Regulations, Medicare Regulations and
Medicaid Regulations) and with respect to which no part of the
Contract related thereto is or would, as a result of any of the
transactions contemplated herein, be in violation of any such
law, rule or regulation in any material respect and with respect
to which no Originating Entity or the Transferor, and to the
best knowledge of the Seller and the Transferor, no other party
to the Contract related thereto, is in violation of any such
law, rule or regulation in any material respect;
(xiii) which (A) satisfies in all material respects
all applicable requirements of the Credit and Collection Policy,
(B) is assignable as contemplated under the Transaction
Documents, and (C) complies with such other criteria and
requirements as any Administrative Agent may from time to time
specify to the Transferor following five Business Days’
notice;
(xiv) which was generated in the ordinary course of an
Originating Entity’s business;
(xv) the Obligor of which has been directed to make all
payments to a Special Account with respect to which there shall
be a Special Account Letter (and, if applicable, an Account
Agent Agreement) in effect;
(xvi) neither the assignment of which under the
Transferring Affiliate Letter or the BMA Transfer Agreement by
the applicable Transferring Affiliate, the assignment of which
under the Receivables Purchase Agreement by the Seller and the
assignment of which hereunder by the Transferor nor the
performance or execution of any of the other transactions
contemplated in any of the Transaction Documents with respect
thereto violates, conflicts or contravenes any applicable laws,
rules or regulations (including without limitation, any
CHAMPUS/VA Regulations, any Medicaid Regulations and any
Medicare Regulations), orders or writs or any contractual or
other restriction, limitation or encumbrance;
8
(xvii) which has not been compromised, adjusted or modified
(including by the extension of time for payment or the granting
of any discounts, allowances or credits); provided,
however, that only such portion of such Receivable that
is the subject of such compromise, adjustment or modifications
shall be deemed to be ineligible pursuant to the terms of this
clause (xvii);
(xviii) which, in the case of any Receivable payable by an
Obligor through a fiscal intermediary or similar entity, is
payable through one of the Persons in such capacity that is
specified in Exhibit N hereto or that has otherwise been
approved by each Administrative Agent; and
(xix) as to which, in the case of any Obligor of the type
described in clause (C) or (D) of the definition of
“Obligor” herein, notice of the interest therein of
the Transferor shall have been given to such Obligor.
“ERISA” means the U.S. Employee Retirement
Income Security Act of 1974, as amended from time to time, and
the regulations promulgated and rulings issued thereunder.
“ERISA Affiliate” means, with respect to any
Person, (i) any corporation which is a member of the same
controlled group of corporations (within the meaning of
Section 414(b) of the Code (as in effect from time to time,
the “Code”)) as such Person; (ii) a trade or
business (whether or not incorporated) under common control
(within the meaning of Section 414(c) of the Code) with
such Person; or (iii) a member of the same affiliated
service group (within the meaning of Section 414(n) of the
Code) as such Person, any corporation described in
clause (i) above or any trade or business described in
clause (ii) above.
“Estimated Maturity Period” shall mean, at any
time, the period, rounded upward to the nearest whole number of
days, equal to the weighted average number of days until due of
the Receivables as calculated by the Collection Agent in good
faith and set forth in the most recent Investor Report, such
calculation to be based on the assumptions that (a) each
Receivable within a particular aging category (as set forth in
the Investor Report) will be paid on the last day of such aging
category and (b) the last day of the last such aging
category coincides with the last date on which any Outstanding
Balance of Receivables would be written off as uncollectible or
charged against any applicable reserve or similar account in
accordance with the objective requirements of the Credit and
Collection Policy and the Seller’s and the
Transferor’s normal accounting practices applied on a basis
consistent with those reflected in the Seller’s financial
statements, provided, however, that if the Agent,
any Administrative Agent or any Investor shall reasonably
disagree with any such calculation, the Agent may recalculate
the Estimated Maturity Period, and such recalculation, in the
absence of manifest error, shall be conclusive.
“Eurodollar Rate” means, with respect to any
Eurodollar Tranche Period for the Investors in any Related
Group, a rate which is equal to the sum (rounded upwards, if
necessary, to the next higher 1/100 of 1%) of (A) the
Applicable Margin at such time, (B) the rate obtained by
dividing (i) the applicable LIBOR Rate by (ii) a
percentage equal to 100% minus the reserve percentage used for
determining the maximum reserve requirement as specified in
Regulation D (including, without limitation, any marginal,
emergency, supplemental, special or other reserves) that is
applicable to the Administrative Agent for such Related Group
during such Eurodollar Tranche Period in respect of
eurocurrency or eurodollar funding, lending or liabilities (or,
if more than one percentage shall be so applicable, the daily
average of such percentage for those days in such Eurodollar
Tranche Period during which any such percentage shall be
applicable) plus (C) the then daily net annual assessment
rate (rounded upwards, if necessary, to the nearest 1/100 of 1%)
as estimated by such Administrative Agent for determining the
current annual assessment payable by such Administrative Agent
to the Federal Deposit Insurance Corporation in respect of
eurocurrency or eurodollar funding, lending or liabilities.
“Eurodollar Tranche” means a Tranche as to
which Discount is calculated at the Eurodollar Rate.
“Eurodollar Tranche Period” means, with
respect to a Eurodollar Tranche for the Investors in any Related
Group, prior to the Termination Date, a period of up to one
month requested by the Transferor and agreed to by the
Administrative Agent for such Related Group, commencing on a
Business Day requested by the Transferor and agreed to by such
Administrative Agent; provided, however, that if
such Eurodollar Tranche Period would expire on a day which
is not a Business Day, such Eurodollar Tranche Period shall
expire on the next succeeding Business Day; provided,
further, that if such Eurodollar Tranche Period
would expire on (a) a day which is not a Business Day but
is a day of the month after which no further Business Day occurs
in such month, such Eurodollar Tranche Period shall expire
on the next preceding Business Day or (b) a Business Day
for which there is no numerically corresponding day in the
applicable subsequent calendar month, such Eurodollar
Tranche Period shall expire on the last Business Day of
such month.
9
“Event of Bankruptcy” means, with respect to
any Person, (i) that such Person (a) shall generally
not pay its debts as such debts become due or (b) shall
admit in writing its inability to pay its debts generally or
(c) shall make a general assignment for the benefit of
creditors; (ii) any proceeding shall be instituted by or
against such Person seeking to adjudicate it as bankruptcy or
insolvent, or seeking liquidation, winding up, reorganization,
arrangements, adjustment, protection, relief or composition of
it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver, trustee or
other similar official for it or any substantial part of its
property or (iii) if such Person is a corporation (or other
business entity), such Person or any Subsidiary shall take any
corporate (or analogous) action to authorize any of the actions
set forth in the preceding clauses (i) or (ii).
“Excluded Taxes” shall have the meaning
specified in Section 8.3 hereof.
“Existing TAA” shall have the meaning specified
in the Preliminary Statements hereof.
“Face Amount” means, with respect to any
Commercial Paper, (i) the face amount of any such
Commercial Paper issued on a discount basis and (ii) the
principal amount of, plus the amount of all interest accrued and
to accrue thereon to the stated maturity date of, any such
Commercial Paper issued on an interest-bearing basis.
“Facility Fee” means, with respect to any
Conduit Investor, a fee payable by the Transferor to such
Conduit Investor pursuant to Section 2.7(ii) hereof, the
terms of which are set forth in the Investor Fee Letter.
“Facility Limit” means $550,000,000;
provided that such amount may not at any time exceed the
aggregate Commitments at any time in effect.
“Fee Letter” means the Investor Fee Letter or
the Agent Fee Letter.
“Finance Charges” means, with respect to a
Contract, any finance, interest, late or similar charges owing
by an Obligor pursuant to such Contract.
“FME KGaA” means Fresenius Medical Care
AG & Co. KgaA., formerly known as Fresenius Medical
Care AG, a partnership limited by shares organized and existing
under the laws of the Federal Republic of Germany and its
successors and permitted assigns.
“FME KGaA Credit Facility” means (i) the
Bank Credit Agreement dated as of March 31, 2006 among FME
KGaA, FMCH, the other borrowers identified therein, the
guarantors identified therein, the lenders party thereto, and
Bank of America, N.A., as Administrative Agent, and
(ii) the Term Loan Credit Agreement dated as of
March 31, 2006 among FME KGaA, FMCH, the other borrowers
identified therein, the guarantors identified therein, the
lenders party thereto, and Bank of America, N.A., as
Administrative Agent, in each case, as amended, restated,
supplemented, modified, renewed, refunded, replaced or
refinanced and in effect at any time.
“FMCH” means Fresenius Medical Care Holdings,
Inc., a New York corporation, and its successors and permitted
assigns.
“GAAP” means generally accepted accounting
principles set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements
of the Financial Accounting Standards Board or in such other
statements by such accounting profession, which are in effect as
of the date of this Agreement.
“GBFC” means Giro Balanced Funding Corporation
together with its successors and permitted assigns.
“Group Majority Investors” has the meaning
specified in Section 9.8.
“Guaranty” means, with respect to any Person
any agreement by which such Person assumes, guarantees,
endorses, contingently agrees to purchase or provide funds for
the payment of, or otherwise becomes liable upon, the obligation
of any other Person, or agrees to maintain the net worth or
working capital or other financial condition of any other Person
or otherwise assures any other creditor of such other Person
against loss, including, without limitation, any comfort letter,
operating agreement or take-or-pay contract and shall include,
without limitation, the contingent liability of such Person in
connection with any application for a letter of credit.
“HHS” means the Department of Health and Human
Services, an agency of the Federal Government of the United
States.
“Hospital Obligor” means any Obligor referred
to in clause (D) of the definition of “Obligor”
contained in this Section 1.1 hereof.
10
“Incremental Transfer” means a Transfer upon
giving effect to which the Net Investment hereunder shall be
increased.
“Indebtedness” means, with respect to any
Person and without duplication, such Person’s
(i) obligations for borrowed money, (ii) obligations
representing the deferred purchase price of property other than
accounts payable arising in the ordinary course of such
Person’s business on terms customary in the trade,
(iii) obligations, whether or not assumed, secured by liens
or payable out of the proceeds or production from property now
or hereafter owned or acquired by such Person,
(iv) obligations which are evidenced by notes, acceptances,
or other instruments, (v) Capitalized Lease obligations and
(vi) obligations for which such Person is obligated
pursuant to a Guaranty.
“Indemnified Amounts” has the meaning specified
in Section 8.1 hereof.
“Indemnified Parties” has the meaning specified
in Section 8.1 hereof.
“Initial Transfer Documents” shall have the
meaning specified in Section 5.2(h).
“Interest Component” shall mean, (i) with
respect to any Commercial Paper issued on an interest-bearing
basis, the interest payable on such Commercial Paper at its
maturity (including any dealer commissions) and (ii) with
respect to any Commercial Paper issued on a discount basis, the
portion of the face amount of such Commercial Paper representing
the discount incurred in respect thereof (including any dealer
commissions).
“Intermediate Concentration Account” means a
special depositary account in the name of the Transferor
maintained at a Special Account Bank for the purpose of
receiving Collections remitted from the Special Account(s)
maintained at such Special Account Bank.
“Intermediate Concentration Account Agreement”
means an agreement substantially in the form attached as
Exhibit D-3
hereto (or in such other form as may be approved in writing by
the Agent) among the Transferor, an Intermediate Concentration
Bank and the Agent.
“Intermediate Concentration Account Bank” means
a bank holding an Intermediate Concentration Account.
“Intermediate Concentration Account Notice”
means a notice, in substantially the form of the Notice of
Effectiveness attached to an Intermediate Concentration Account
Agreement, from the Agent to the applicable Intermediate
Concentration Account Bank.
“Investor” means a Conduit Investor or a Bank
Investor.
“Investor Fee Letter” means the Amended and
Restated Investor Fee Letter dated as of the Closing Date among
the Transferor and the Administrative Agents relating to certain
fees payable by the Transferor to the Administrative Agents, for
the account of the Investors in their respective Related Groups,
as amended, restated, supplemented or otherwise modified from
time to time.
“Investor Report” means a report, in
substantially the form attached hereto as Exhibit E or in
such other form as is mutually agreed to by the Transferor and
each Administrative Agent, furnished by the Collection Agent
pursuant to Section 2.11 hereof.
“Law” means any law (including common law),
constitution, statute, treaty, regulation, rule, ordinance,
order, injunction, writ, decree or award of any Official Body.
“Liberty Street” means Liberty Street Funding
LLC, a Delaware limited liability company, together with its
successors and permitted assigns.
“LIBOR Rate” means, with respect to any
Eurodollar Tranche Period for the Investors in any Related
Group, the rate at which deposits in dollars are offered to the
Administrative Agent for such Related Group, in the London
interbank market at approximately 11:00 a.m. (London time)
two Business Days before the first day of such Eurodollar
Tranche Period in an amount approximately equal to the
Eurodollar Tranche to which the Eurodollar Rate is to apply and
for a period of time approximately equal to the applicable
Eurodollar Tranche Period.
“Liquidation Yield” means, at any time, an
amount equal to:
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(RVF x
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LBR x
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NI) x
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(EMP +
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CDF)
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360
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11
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Where:
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RVF
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=
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the Rate Variance Factor at such time;
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LBR
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=
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the Base Rate at such time which is applicable to the
liquidation period after a Termination Event;
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NI
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=
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the Net Investment at such time;
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EMP
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=
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the Estimated Maturity Period of the Receivables; and
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CDF
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=
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the Collection Delay Factor.
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“Liquidity Provider” means, with respect to any
Conduit Investor, the Person or Persons who will provide
liquidity support to such Conduit Investor in connection with
the issuance by such Conduit Investor of Commercial Paper.
“Liquidity Provider Agreement” means an
agreement between a Conduit Investor and one or more Liquidity
Providers evidencing the obligation of each such Liquidity
Provider to provide liquidity support to such Conduit Investor
in connection with the issuance by such Conduit Investor of
Commercial Paper.
“Loss Horizon” means, as of any date, the
product of (a) a ratio (expressed as a percentage) computed
by dividing (i) the aggregate Outstanding Balance of all
Receivables acquired by the Transferor during the two
(2) most recently ended calendar months by (ii) the
aggregate Outstanding Balance of all Receivables that are not
more than 270 days past due as of the last day of the most
recently ended calendar month times (b) the highest average
Default Ratio for any consecutive three month period during the
immediately preceding
12-month
period.
“Loss Percentage” means on any day the greater
of (i) two (2) times the Loss Horizon as of such day
and (ii) 20%.
“Loss Reserve” means, on any day, an amount
equal to:
LP x (NRB + DLR + DR + SFR)
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Where:
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LP
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=
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the Loss Percentage at the close of business of the Collection
Agent on such day;
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NRB
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=
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the Net Receivables Balance at the close of business of the
Collection Agent on such day;
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DLR
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=
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the Dilution Reserve at the close of business of the Collection
Agent on such day;
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DR
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=
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the Discount Reserve at the close of business of the Collection
Agent on such day;
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SFR
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=
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the Servicing Fee Reserve at the close of business of the
Collection Agent on such day
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“Loss-to-Liquidation Ratio” means the ratio
(expressed as a percentage) computed as of the last day of each
calendar month by dividing (i) the aggregate Outstanding
Balance of all Receivables which became Defaulted Receivables
during such month, by (ii) the aggregate amount of
Collections received by the Collection Agent during such period.
“Majority Investors” means, at any time, those
Investors which hold Commitments aggregating in excess of 51% of
the aggregate Commitments of all Investors as of such date.
“Material Adverse Effect” means a material
adverse effect on any of (i) the collectibility or
enforceability of a material portion of the Receivables or
Related Security, (ii) the ability of the Transferor or any
Originating Entity to charge or collect a material portion of
the Receivables or Related Security, (iii) the ability of
(A) the Transferor or any Originating Entity to perform or
observe in any material respect any provision of this Agreement
or any other Transaction Document to which it is a party or
(B) of FME KGaA or FMCH to cause the due and punctual
performance and observation by the Seller or the Transferor of
any such provision or, if the Seller or the Transferor shall
fail to do so, to perform or observe any such provision required
to be performed or observed by the Seller or the Transferor
under this Agreement or any other Transaction Document to which
the Seller or the Transferor is party, in each case pursuant to
the Parent Agreement, (iv) the ability of (A) any
Transferring Affiliate to perform or observe in any material
respect any provision of the Transferring Affiliate Letter or,
in the case of BMA, the BMA Transfer Agreement or, in the case
of any Designated Account Agent, the applicable Account Agent
Agreement, or (B) of FME KGaA or FMCH to cause the due and
punctual performance and observation by such Transferring
Affiliate, BMA or such Designated Account Agent of any such
provision or, if such Transferring Affiliate, BMA or such
Designated
12
Account Agent shall fail to do so, to perform or observe any
such provision, in each case pursuant to the Parent Agreement,
(v) the financial condition, operations, businesses or
properties, each on a consolidated basis, of FME KGaA, FMCH, NMC
or the Transferor or (vi) the interests of the Agent, any
Administrative Agent or any of the Investors under the
Transaction Documents.
“Maximum Net Investment” means at any time, an
amount equal to 98% of the Facility Limit in effect at such time.
“Maximum Percentage Factor” means 98%.
“Medicaid” means the medical assistance program
established by Title XIX of the Social Security Act
(42 USC §§ 1396 et seq.) and
any statutes succeeding thereto.
“Medicaid Regulations” means, collectively,
(a) all federal statutes (whether set forth in
Title XIX of the Social Security Act or elsewhere)
affecting Medicaid; (b) all state statutes and plans for
medical assistance enacted in connection with such statutes and
federal rules and regulations promulgated pursuant to or in
connection with such statutes; and (c) all applicable
provisions of all rules, regulations manuals, orders and
administrative, reimbursement and other guidelines of all
Governmental Authorities (including, without limitation, HHS,
CMS, the office of the Inspector General for HHS, or any Person
succeeding to the functions of any of the foregoing) promulgated
pursuant to or in connection with any of the foregoing (whether
or not having the force of law), in each case as may be amended,
supplemented or otherwise modified from time to time.
“Medicare” means the health insurance program
for the aged and disabled established by Title XVIII of the
Social Security Act (42 USC §§ 1395 et seq.)
and any statutes succeeding thereto.
“Medicare Regulations” means, collectively,
(a) all federal statutes (whether set forth in
Title XVIII of the Social Security Act or elsewhere)
affecting Medicare; and (b) all applicable provisions of
all rules, regulations, manuals, orders and administrative,
reimbursement and other guidelines of all Governmental
Authorities (including, without limitation, HHS, CMS, the Office
of the Inspector General for HHS, or any Person succeeding to
the functions of any of the foregoing) promulgated pursuant to
or in connection with the foregoing (whether or not having the
force of law), as each may be amended, supplemented or otherwise
modified from time to time.
“Minimum Amount” shall have the meaning
specified in Section 5.1(h).
“Moody’s” means Xxxxx’x Investors
Service.
“Multiemployer Plan” means a
“multiemployer plan” as defined in
Section 4001(a)(3) of ERISA which is or was at any time
during the current year or the immediately preceding five years
contributed to by the Transferor, the Seller or any ERISA
Affiliate of the Transferor or the Seller on behalf of its
employees.
“Net Asset Test” shall mean, in connection with
any assignment by a Conduit Investor of an interest in the Net
Investment pursuant to Section 9.7 hereof, that on the day
immediately prior to the day on which such assignment is to take
effect, the Net Receivables Balance shall be greater than the
Net Investment.
“Net Investment” means the sum of the cash
amounts paid to the Transferor for each Incremental Transfer
less the aggregate amount of Collections received and applied by
the Agent to reduce such Net Investment pursuant to
Section 2.5, 2.6 or 2.9 hereof; provided that the
Net Investment shall be restored and reinstated in the amount of
any Collections so received and applied if at any time the
distribution of such Collections is rescinded or must otherwise
be returned for any reason; and provided further
that the Net Investment may be increased by the amount described
in Section 9.7(d) as described therein. A portion of the
Net Investment shall be deemed to be held by an Investor to the
extent such portion of the Net Investment shall have been funded
by, or assigned to, such Investor.
“Net Receivables Balance” means at any time the
Outstanding Balance of the Eligible Receivables at such time
reduced, without duplication, by the sum of (i) the
aggregate amount by which the Outstanding Balance of all
Eligible Receivables of each Designated Obligor or class of
Designated Obligors exceeds the Concentration Factor for such
Designated Obligor or class of Designated Obligors, plus
(ii) the aggregate Outstanding Balance of all Eligible
Receivables which are Defaulted Receivables, plus
(iii) the excess, if any, of (A) the aggregate
Outstanding Balance of all Eligible Receivables of each Obligor
referred to in clause (G) of the definition of
“Obligor” contained in this Section 1.1, over
(B) an amount equal to 5% of the aggregate Outstanding
Balance of all Eligible Receivables, plus (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 (v) the Unrealized Contractual Adjustment Reserve.
13
“NMC” means National Medical Care, Inc., a
Delaware corporation and owner of 100% of the outstanding stock
of the Transferor.
“NPRBI” shall have the meaning specified in
Section 2.13.
“Obligor” of any Receivable means (i) any
Person obligated to make payments of such Receivable pursuant to
a Contract
and/or
(ii) any Person owing any amount in respect of such
Receivable, or in respect of any Related Security with respect
to such Receivable, all such Persons referred to in any of
clauses (A), (B), (E), (F) and (G) below, and each
Person referred to in any of clauses (C) and
(D) below, to be deemed for purposes of this Agreement to
be one Obligor:
(A): all Persons owing Receivables or Related Security under the
Medicare program;
(B): all Persons owing Receivables or Related Security under the
Medicaid program;
(C): each Person which is an insurance company;
(D): each Person which is a hospital or other health care
provider;
(E): all Persons, other than health care providers or Persons
referred to in clause (A), (B), (C) or (D) above or
clause (F) or (G) below, owing Receivables arising
from the sale of services or merchandise;
(F): all Persons owing Receivables or Related Security under the
CHAMPUS/VA Program; and
(G): all Persons who receive the services or merchandise the
sale of which results in Receivables that are not insured,
guaranteed or otherwise supported in respect thereof by any of
the Persons referred to in clauses (A) through
(F) above, including any Person owing any amount in respect
of Receivables by reason of insurance policy deductibles or
co-insurance agreements or arrangements.
“Official Body” means any government or
political subdivision or any agency, authority, bureau, central
bank, commission, department or instrumentality of any such
government or political subdivision, or any court, tribunal,
grand jury or arbitrator, or any accounting board or authority
(whether or not a part of government) which is responsible for
the establishment or interpretation of national or international
accounting principles in each case whether foreign or domestic.
“Original Closing Date” means August 28,
1997.
“Originating Entity” means any of the Seller
and any Transferring Affiliate.
“
Other Transferor” means, with respect to any
Conduit Investor, any Person other than the Transferor that has
entered into a receivables purchase agreement or
transfer and
administration agreement with such Conduit Investor.
“Outstanding Balance” means (i) with
respect to any Receivable originated by a member of the Spectra
Renal Management Group, the outstanding principal amount thereof
(excluding any accrued and outstanding Finance Charges related
thereto) minus the Contractual Adjustment Amount with
respect to such Receivable and (ii) with respect to any
other Receivable, the outstanding principal amount thereof
(excluding any accrued and outstanding Finance Charges related
thereto) minus the amount of Pre-Arranged Contractual
Adjustments that have not yet been applied to reduce such
outstanding principal amount.
“Paradigm” means, Paradigm Funding LLC, a
Delaware limited liability company, together with its successors
and permitted assigns.
“Parent Agreement” means the Amended and
Restated Parent Agreement, substantially in the form set forth
as Exhibit P hereto, dated as of the Closing Date made by
FME KGaA and FMCH in respect of the obligations of the
Originating Entities and NMC under the Transaction Documents, as
the same may be amended, restated, supplemented or otherwise
modified from time to time with the consent of each
Administrative Agent.
“Parent Group” means, collectively, FME KGaA,
FMCH, NMC, the Transferor, the Originating Entities and their
Subsidiaries and Affiliates, and “Parent Group
Member” means any such Person individually.
“Payor” shall, solely for purposes of
Section 8.3, have the meaning specified in such section.
“Percentage Factor” shall mean the fraction
(expressed as a percentage) computed at any time of
determination as follows:
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NI +
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LR +
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DLR +
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DR +
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SFR
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NRB
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14
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Where:
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NI
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=
|
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the Net Investment at the time of such computation;
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LR
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|
=
|
|
the Loss Reserve at the time of such computation;
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DLR
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|
=
|
|
the Dilution Reserve at the time of such computation;
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DR
|
|
=
|
|
the Discount Reserve at the time of such computation;
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SFR
|
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=
|
|
the Servicing Fee Reserve at the time of such computation; and
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NRB
|
|
=
|
|
the Net Receivables Balance at the time of such computation.
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“Person” means any corporation, limited
liability company, natural person, firm, joint venture,
partnership, trust, unincorporated organization, enterprise,
government or any department or agency or any government.
“Potential Termination Event” means an event
which but for the lapse of time or the giving of notice, or
both, would constitute a Termination Event.
“Pre-Arranged Contractual Adjustment” means,
with respect to any Receivable, a Contractual Adjustment that
was agreed upon by the applicable Originating Entity and the
applicable Obligor on or prior to the date such Receivable arose.
“Primary Payor” means (i) each Obligor
referred to in clauses (A), (B), (E), (F) and (G) of
the definition of “Obligor” contained in this
Section 1.1, (ii) collectively, all Obligors of the
type referred to in clause (C) of the definition of
“Obligor” contained in this Section 1.1 and
(iii) collectively, all Obligors of the type referred to in
clause (D) of the definition of “Obligor”
contained in this Section 1.1.
“Pro Rata Share” means, for a Bank Investor in
any Related Group, the Commitment of such Bank Investor divided
by the sum of the Commitments of all Bank Investors in such
Related Group.
“Proceeds” means “proceeds” as
defined in
Section 9-306
(1) of the UCC as in effect on the date hereof.
“Program Fee” means, with respect to any
Conduit Investor, the fee payable by the Transferor to such
Conduit Investor pursuant to Section 2.7(i) hereof, the
terms of which are set forth in the Investor Fee Letter.
“Purchased Interest” means the interest in the
Receivables acquired by a Liquidity Provider from a Conduit
Investor through purchase pursuant to the terms of a Liquidity
Provider Agreement.
“Purchase Termination Date” means the date upon
which the Transferor shall cease, for any reason whatsoever, to
make purchases of Receivables from the Seller under the
Receivables Purchase Agreement or the Receivables Purchase
Agreement shall terminate for any reason whatsoever.
“Ratable Share” means (i) in the case of a
Conduit Investor in any Related Group, a fraction (expressed as
a percentage) equal to the Related Group Limit of such Related
Group divided by the Facility Limit and (ii) in the case of
a Bank Investor, a fraction (expressed as a percentage) equal to
such Bank Investor’s Commitment divided by the sum of the
Commitments of all Bank Investors (including Bank Investors from
other Related Groups).
“Rate Variance Factor” means the number,
computed from time to time in good faith by the Agent (with the
written consent of each Administrative Agent), that reflects the
largest potential variance (from minimum to maximum) in selected
interest rates over a period of time selected by the Agent from
time to time, set forth in written notice by the Agent to each
Administrative Agent, the Transferor and the Collection Agent.
“Rating Agency” means, at any time,
Moody’s, S&P or any other rating agency chosen by a
Conduit Investor to rate its commercial paper notes at such time.
“Receivable” means the indebtedness of any
Obligor, whether constituting an account, chattel paper,
instrument, insurance claim, investment property or general
intangible, arising in connection with the sale or lease of
merchandise, or the rendering of services, by an Originating
Entity, and includes the right to payment of any Finance Charges
and other obligations of such Obligor with respect thereto.
“Receivable Systems” has the meaning specified
in Section 3.1(aa).
“Receivables Purchase Agreement” means the
Amended and Restated Receivables Purchase Agreement dated as of
the Closing Date by and between NMC, as seller, and the
Transferor, as purchaser, as such agreement may be amended,
modified or supplemented and in effect from time to time.
“Recipient” shall, solely for purposes of
Section 8.3, have the meaning specified in such section.
15
“Records” means all Contracts and other
documents, books, records and other information (including,
without limitation, computer programs, tapes, discs, punch
cards, data processing software and related property and rights)
maintained with respect to receivables and the related Obligors.
“Reinvestment Termination Date” means, with
respect to any Conduit Investor, the second Business Day after
the delivery by such Conduit Investor to the Transferor of
written notice that such Conduit Investor elects to commence the
amortization of its interest in the Net Investment or otherwise
liquidate its interest in the Transferred Interest.
“Reinvestment Transfer” means a Transfer
occurring in connection with the reinvestment of Collections
pursuant to Section 2.2(b) and 2.5.
“Related Group” means any of the following
groups: (i) Paradigm, as a Conduit Investor, Landesbank
Hessen-Thueringen Girozentrale, as a Bank Investor and WestLB,
as a Bank Investor and as an Administrative Agent, together with
their respective successors and permitted assigns,
(ii) GBFC, as a Conduit Investor, and Bayerische
Landesbank, Cayman Islands Branch, as a Bank Investor and
Bayerische Landesbank, New York Branch, as an Administrative
Agent, together with their respective successors and permitted
assigns and (iii) Liberty Street, as a Conduit Investor,
and Scotiabank, as a Bank Investor and as Administrative Agent,
together with their respective successors and permitted assigns.
“Related Group Limit” means, with respect to
any Related Group, the aggregate Commitments of the Bank
Investors in such Related Group.
“Related Security” means with respect to any
Receivable, all of the Transferor’s rights, title and
interest in, to and under:
(i) all of the Seller’s, the Transferor’s or any
Transferring Affiliate’s interest, if any, in the
merchandise (including returned or repossessed merchandise), if
any, the sale of which gave rise to such Receivable;
(ii) all other security interests or liens and property
subject thereto from time to time, if any, purporting to secure
payment of such Receivable, whether pursuant to the Contract
related to such Receivable or otherwise, together with all
financing statements signed by an Obligor describing any
collateral securing such Receivable;
(iii) all guarantees, indemnities, warranties, insurance
(and proceeds and premium refunds thereof) or other agreements
or arrangements of any kind from time to time supporting or
securing payment of such Receivable whether pursuant to the
Contract related to such Receivable or otherwise, including,
without limitation, insurance, guaranties and other agreements
or arrangements under the Medicare program, the Medicaid
program, state renal programs, CHAMPUS/VA, private insurance
policies, and hospital and other health care programs and health
care provider arrangements;
(iv) all Records related to such Receivable;
(v) all rights and remedies of the Transferor
(A) under the Receivables Purchase Agreement, together with
all financing statements filed by the Transferor against the
Seller in connection therewith, (B) under the Transferring
Affiliate Letter, together with all financing statements filed
in connection therewith against the Transferring Affiliates,
(C) under the BMA Transfer Agreement, together with all
financing statements filed in connection therewith against BMA
and (D) under the Parent Agreement; and
(vi) all Proceeds of any of the foregoing.
“Scotiabank” means The Bank of Nova Scotia,
together with its successors and permitted assigns.
“Section 8.2 Costs” has the meaning
specified in Section 8.2(d) hereof.
“Seller” means NMC and its successors and
permitted assigns.
“Servicing Fee” means the fees payable by the
Investors in a Related Group to the Collection Agent, with
respect to a Tranche held by the Investors in such Related
Group, in an amount equal to 0.25% per annum on the amount of
the Net Investment allocated to such Tranche pursuant to
Section 2.3 hereof. Such fee shall accrue from the date of
the initial purchase of an interest in the Receivables to the
date on which the Percentage Factor is reduced to zero. Such fee
shall be payable only from Collections pursuant to, and subject
to the priority of payments set forth in, Section 2.5
hereof. After the Termination Date, such fee shall be payable
only from Collections pursuant to, and subject to the priority
of payments set forth in, Section 2.6 hereof.
16
“Servicing Fee Reserve” means at any time an
amount equal to the product of (i) the aggregate
Outstanding Balance of all Receivables at such time,
(ii) the Servicing Fee percentage and (iii) a fraction
having as the numerator, the sum of (a) the Estimated
Maturity Period plus (b) the Collection Delay
Period, and as the denominator, 360.
“Social Security Act” means the Social Security
Act, as amended from time to time, and the regulations
promulgated and rulings and advisory opinions issued thereunder.
“Special Account” means a special depositary
account maintained at a bank acceptable to the Agent for the
purpose of receiving Collections, which account is in the name
of either (i) the Originating Entity in respect of the
Receivables giving rise to such Collections or (ii) a
Designated Account Agent acting on behalf of such Originating
Entity.
“Special Account Bank” means any of the banks
holding one or more Special Accounts.
“Special Account Letter” means a letter, in
substantially the form of
Exhibit D-1
hereto, from an Originating Entity (or, if applicable, a
Designated Account Agent) to any Special Account Bank, executed
by such Originating Entity (or such Designated Account Agent) to
such Special Account Bank.
“Spectra Renal Management Group” means,
collectively, Spectra East, Inc., a Delaware corporation,
Spectra Laboratories, Inc., a Nevada corporation, as
Transferring Affiliates, and their respective successors.
“Standard & Poor’s” or
“S&P” means Standard &
Poor’s Ratings Services, a division of XxXxxx-Xxxx
Companies, Inc.
“Subordinated Note” shall have the meaning
specified in the Receivables Purchase Agreement.
“Subsidiary” of a Person means any Person more
than 50% of the outstanding voting interests of which shall at
any time be owned or controlled, directly or indirectly, by such
Person or by one or more Subsidiaries of such Person or any
similar business organization which is so owned or controlled.
“Taxes” shall have the meaning specified in
Section 8.3 hereof.
“Termination Date” means the earliest of
(i) the Business Day designated by the Transferor to each
Administrative Agent as the Termination Date at any time
following 60 days’ written notice to each
Administrative Agent, (ii) the day upon which the
Termination Date is declared or automatically occurs pursuant to
Section 7.2(a) hereof, (iii) the Commitment
Termination Date or (iv) the Purchase Termination Date.
“Termination Event” means an event described in
Section 7.1 hereof.
“Tranche” means a portion of the Net Investment
allocated to a Tranche Period pursuant to Section 2.3
hereof.
“Tranche Period” means a CP
Tranche Period, a BR Tranche Period or a Eurodollar
Tranche Period.
“Tranche Rate” means the CP Rate, the Base
Rate or the Eurodollar Rate.
“Transaction Costs” has the meaning specified
in Section 8.4(a) hereof.
“Transaction Documents” means, collectively,
this Agreement, the Receivables Purchase Agreement, the Fee
Letters, the Special Account Letters, the Concentration Account
Agreement, the Account Agent Agreement(s), the Certificates, the
Transfer Certificates, the Transferring Affiliate Letter, the
BMA Transfer Agreement, the Parent Agreement, the Intermediate
Concentration Account Agreements, and all of the other
instruments, documents and other agreements executed and
delivered by any Originating Entity, FME KGaA, FMCH, NMC or the
Transferor in connection with any of the foregoing, in each
case, as the same may be amended, restated, supplemented or
otherwise modified from time to time.
“Transfer” means a conveyance, transfer and
assignment by the Transferor to the Agent, for the benefit of
the Investors, of an undivided percentage ownership interest in
Receivables hereunder together with Related Security,
Collections and Proceeds with respect thereto (including,
without limitation, as a result of any reinvestment of
Collections in Transferred Interests pursuant to
Sections 2.2(b) and 2.5).
“Transfer Certificate” has the meaning
specified in Section 2.2(a) hereof.
“Transfer Date” means, with respect to each
Transfer, the Business Day on which such Transfer is made.
17
“Transfer Price” means with respect to any
Incremental Transfer to be made by the Agent, on behalf of the
Investors participating in such Incremental Transfer, the amount
paid to the Transferor by such Investors as described in the
applicable Transfer Certificate.
“Transferor” means NMC Funding Corporation, a
Delaware corporation, and its successors and permitted assigns.
“Transferred Interest” means, at any time of
determination, an undivided percentage ownership interest in
(i) each and every then outstanding Receivable,
(ii) all Related Security with respect to each such
Receivable, (iii) all Collections with respect thereto, and
(iv) other Proceeds of the foregoing, which undivided
ownership interest shall be equal to the Percentage Factor at
such time, and only at such time (without regard to prior
calculations). The Transferred Interest in each Receivable,
together with Related Security, Collections and Proceeds with
respect thereto, shall at all times be equal to the Transferred
Interest in each other Receivable, together with Related
Security, Collections and Proceeds with respect thereto. To the
extent that the Transferred Interest shall decrease as a result
of a recalculation of the Percentage Factor, the Agent, on
behalf of the applicable Investors, shall be considered to have
reconveyed to the Transferor (without recourse, representation
or warranty of any type or kind) an undivided percentage
ownership interest in each Receivable, together with Related
Security, Collections and Proceeds with respect thereto, in an
amount equal to such decrease such that in each case the
Transferred Interest in each Receivable shall be equal to the
Transferred Interest in each other Receivable.
“Transferring Affiliate” means a company
specified on Exhibit Q hereto, as such Schedule may be
amended from time to time as provided in Section 2.15;
provided, however, that no such company shall be a
Transferring Affiliate from and after the occurrence of any
Event of Bankruptcy by or with respect thereto unless any
Receivables that arose from sales by such company exist on such
date, in which case such company shall continue to be a
Transferring Affiliate until the respective Outstanding Balances
of all such Receivables shall have been reduced to zero; and
provided, further, that, solely with respect to
the Receivables transferred by it to the Seller pursuant to the
BMA Transfer Agreement, BMA shall constitute a
“Transferring Affiliate” hereunder.
“Transferring Affiliate Letter” means the
Amended and Restated Affiliate Letter dated as of the Closing
Date from the Transferring Affiliates (other than BMA) to the
Seller, as the same may be amended, restated, supplemented or
otherwise modified from time to time with the consent of the
Agent.
“UCC” means, with respect to any state, the
Uniform Commercial Code as from time to time in effect in such
state.
“Unrealized Contractual Adjustment Reserve”
means the reserve maintained by the Collection Agent in
accordance with its customary practices reflecting the
difference between the Outstanding Balance of Receivables owing
by certain commercial insurers and the Collection Agent’s
estimate of what such commercial insurers will pay in respect of
such Receivables. It is understood and agreed that Pre-Arranged
Contractual Adjustments will be reflected in the initial
Outstanding Balance of the applicable Receivables and
accordingly will not be included in the Unrealized Contractual
Adjustment Reserve.
“U.S.” or “United States”
means the United States of America.
“US Government Obligor” means any Obligor that
is the federal government of the United States, or any
subdivision or agency thereof the obligations of which are
supported by the full faith and credit of the United States, and
shall include any Obligor referred to in clause (A),(B) or
(F) of the definition of “Obligor” contained in
this Section 1.1.
“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.
“WestLB” means WestLB AG, New York Branch
(formerly known as Westdeutsche Landesbank Girozentrale, New
York Branch), together with its successors and assigns.
18
Section 1.2. Other
Terms. All accounting terms not specifically defined herein
shall be construed in accordance with GAAP. All terms used in
Article 9 of the UCC in the State of New York, and not
specifically defined herein, are used herein as defined in such
Article 9.
Section 1.3. Computation
of Time Periods. Unless otherwise stated in this Agreement,
in the computation of a period of time from a specified date to
a later specified date, the word “from” means
“from and including”, the words “to” and
“until” each means “to but excluding”, and
the word “within” means “from and excluding a
specified date and to and including a later specified date”.
Section 1.4. Amendment
and Restatement. Subject to the satisfaction of the
conditions precedent set forth in Section 4.1, this
Agreement amends and restates the Existing TAA in its entirety.
This Agreement is not intended to constitute a novation of the
Existing TAA. Upon the effectiveness of this Agreement (the
“Effective Date”), each reference to the
Existing TAA in any other document, instrument or agreement
executed
and/or
delivered in connection therewith shall mean and be a reference
to this Agreement.
Section 1.5. Funding
on Effective Date. The parties hereto acknowledge that an
adjustment to the Net Investment held by the respective Related
Groups is required to be made on the Effective Date in order to
ensure that the Net Investment held by the Investors in each
Related Group is proportional to their respective Related Group
Limits. Accordingly, on the Effective Date, the Transferor shall
request such Incremental Transfers, and make such repayments, in
each case a non-pro rata basis among the Related Groups, such
that by the close of business on the Effective Date the Net
Investment held by the Investors in the respective Related
Groups shall be proportional to their respective Related Group
Limits.
ARTICLE II
PURCHASE AND SETTLEMENTS
Section 2.1. Facility.
Upon the terms and subject to the conditions herein set forth,
the Transferor may from time to time prior to the Termination
Date, at its option, convey, transfer and assign to the Agent,
on behalf of the Investors, percentage ownership interests in
the Receivables, together with Related Security, Collections and
Proceeds with respect thereto. Each such Transfer is made
without recourse to the Transferor; provided,
however, that the Transferor shall be liable for all
representations, warranties, covenants and other agreements made
by the Transferor pursuant to the terms of this Agreement or any
other Transaction Document. Each such Transfer shall be made
among the Related Groups ratably in accordance with their
respective Related Group Limits. Subject to the terms and
conditions set forth herein, the Agent shall accept such
conveyance, transfer and assignment on behalf of the Investors.
By accepting any conveyance, transfer and assignment hereunder,
none of the Investors, the Administrative Agents or the Agent
assumes or shall have any obligations or liability under any of
the Contracts, all of which shall remain the obligations and
liabilities of the Transferor and the Seller.
Section 2.2. Transfers;
Certificates; Eligible Receivables (a) Incremental
Transfers. Upon the terms and subject to the conditions
herein set forth the Transferor may, at its option, request that
an Incremental Transfer be made by the Agent, on behalf of each
of the applicable Investors. It shall be a condition precedent
to each Incremental Transfer that (i) after giving effect
to the payment to the Transferor of the applicable Transfer
Price, (x) the sum of the Net Investment plus the
Interest Component of all outstanding Related Commercial Paper,
would not exceed the Facility Limit, (y) the Percentage
Factor would not exceed the Maximum Percentage Factor and
(z) the Net Investment would not exceed the Maximum Net
Investment; (ii) the representations and warranties set
forth in Section 3.1 shall be true and correct both
immediately before and immediately after giving effect to any
such Incremental Transfer and the payment to the Transferor of
the Transfer Price related thereto; (iii) an Investor
Report shall have been delivered prior to such Incremental
Transfer as required by Section 3.2 hereof and (iv) in
the case of any Incremental Transfer to be funded by the Bank
Investors in any Related Group, either (x) such Bank
Investors shall have previously accepted the assignment by the
related Conduit Investor of all of its interest in the Affected
Assets or (y) such Conduit Investor shall have had an
opportunity to direct that such assignment occur on or prior to
giving effect to such Incremental Transfer.
The Transferor shall, by notice to the Agent (with a copy to
each Administrative Agent) given by telecopy, offer to convey,
transfer and assign to the Agent, on behalf of the Investors,
undivided percentage ownership interests in the Receivables and
the other Affected Assets relating thereto at least one
(1) Business Day prior to the proposed date of any
Incremental Transfer. Each such notice shall specify,
(w) with respect to each Related Group, whether such
request is made to the Agent, on behalf of the Conduit Investor
in such Related Group or on behalf of the Bank Investors in such
Related Group (it being understood and agreed that once any
Transferred Interest hereunder is acquired on behalf of the Bank
Investors in any Related Group, the Agent, on behalf of Bank
Investors in such Related Group, shall be required to purchase
all Transferred Interests held by the Agent on behalf of the
19
Conduit Investor in such Related Group in accordance with
Section 9.7 and thereafter no additional Incremental
Transfers shall be acquired on behalf of such Conduit Investor
hereunder), (x) the desired Transfer Price (which shall be
at least $1,000,000 or integral multiples of $250,000 in excess
thereof) or, to the extent that the then available unused
portion of the Facility Limit is less than such amount, such
lesser amount equal to such available portion of the Facility
Limit, (y) the desired date of such Incremental Transfer
and (z) the desired Tranche Period(s) and allocations
of the Net Investment of such Incremental Transfer thereto as
required by Section 2.3. Each Administrative Agent will
promptly notify the related Conduit Investor or each of the Bank
Investors in its Related Group, as the case may be, of such
Administrative Agent’s receipt of any request for an
Incremental Transfer to be made to the Agent on behalf of such
Person. To the extent that any such Incremental Transfer is
requested of the Agent, on behalf of a Conduit Investor, such
Conduit Investor shall instruct the Agent to accept or reject
such offer by notice given to the Transferor and the Agent by
telephone or telecopy by no later than the close of its business
on the Business Day following its receipt of any such request.
Each notice of proposed Transfer shall be irrevocable and
binding on the Transferor and the Transferor shall indemnify
each Investor against any loss or expense incurred by any
Investor, either directly or indirectly (including, in the case
of a Conduit Investor, through the related Liquidity Provider
Agreement) as a result of any failure for any reason (including
failure to satisfy any of the conditions precedent in respect
thereof) by the Transferor to complete such Incremental Transfer
including, without limitation, any loss (including loss of
anticipated profits) or expense incurred by any Investor, either
directly or indirectly (including, in the case of a Conduit
Investor, pursuant to the related Liquidity Provider Agreement)
by reason of the liquidation or reemployment of funds acquired
by any Investor or a related Liquidity Provider (including,
without limitation, funds obtained by issuing commercial paper
or promissory notes or obtaining deposits as loans from third
parties) for any Investor to fund such Incremental Transfer.
The Transferor has previously delivered to the Agent the
Transfer Certificate in the form of Exhibit F hereto (the
“Transfer Certificate”). On the date of each
Incremental Transfer, each Administrative Agent shall send
written confirmation to the Transferor and to the Agent of the
Transfer Price, the Tranche Period(s), the Transfer Date
and the Tranche Rate(s) applicable to the portion of such
Incremental Transfer made by such Administrative Agent’s
Related Group. The Agent shall indicate the amount of the
Incremental Transfer together with the date thereof as well as
any decrease in the Net Investment on the grid attached to the
Transfer Certificate. The Transfer Certificate shall evidence
the Incremental Transfers.
By no later than 3:00 p.m. (New York time) on any Transfer
Date, each Investor participating in the relevant Transfer shall
remit its Ratable Share of the aggregate Transfer Price for such
Transfer either (i) to the account of the related
Administrative Agent specified therefor from time to time by
such Administrative Agent by notice to such Investor or
(ii) if so directed by such Administrative Agent, directly
to the Transferor. The obligation of each Investor to remit its
Ratable Share of any such Transfer Price shall be several from
that of each other Investor, and the failure of any Investor to
so make such amount available to its related Administrative
Agent or the Transferor, as applicable, shall not relieve any
other Investor of its obligation hereunder. If the portion of
the Transfer Price payable by the Investors in a Related Group
is remitted to the related Administrative Agent, then, following
each Incremental Transfer and such Administrative Agent’s
receipt of funds from the Investors in its Related Group
participating in such Transfer as aforesaid, such Administrative
Agent shall remit such portion of the Transfer Price to the
Transferor’s account at the location indicated in
Section 10.3 hereof, in immediately available funds. Unless
an Administrative Agent shall have received notice from any Bank
Investor in its Related Group participating in an Incremental
Transfer that such Bank Investor will not make its share of any
Transfer Price relating to such Incremental Transfer available
on the applicable Transfer Date therefor, such Administrative
Agent may (but shall have no obligation to) make such Bank
Investor’s share of any such Transfer Price available to
the Transferor in anticipation of the receipt by such
Administrative Agent of such amount from such Bank Investor. To
the extent such Bank Investor fails to remit any such amount to
its Administrative Agent after any such advance by such
Administrative Agent on such Transfer Date, such Bank Investor,
on the one hand, and the Transferor, on the other hand, shall be
required to pay such amount, together with interest thereon at a
per annum rate equal to the Federal funds rate (as determined in
accordance with clause (ii) of the definition of “Base
Rate”), in the case of such Bank Investor, or the otherwise
applicable Tranche Rate, in the case of the Transferor, to
such Administrative Agent upon its demand therefor;
provided that such Administrative Agent shall not be
permitted to recover more than once for such amount or interest
thereon. Until such amount shall be repaid, such amount shall be
deemed to be Net Investment paid by the applicable
Administrative Agent and such Administrative Agent shall be
deemed to be the owner of a Transferred Interest hereunder. Upon
the payment of such amount to such Administrative Agent
(x) by the Transferor, the amount of the aggregate Net
Investment shall be reduced by such amount or (y) by such
Bank Investor, such payment shall constitute such Bank
Investor’s payment of its share of the applicable Transfer
Price for such Transfer.
20
(b) Reinvestment Transfers. On each Business Day
occurring after the initial Incremental Transfer hereunder and
prior to the Termination Date, the Transferor hereby agrees to
convey, transfer and assign to the Agent, on behalf of the
Investors, and in consideration of Transferor’s agreement
to maintain at all times prior to the Termination Date a Net
Receivables Balance in an amount at least sufficient to maintain
the Percentage Factor at an amount not greater than the Maximum
Percentage Factor, the Agent may, on behalf of each Conduit
Investor (unless such Conduit Investor has otherwise directed
the Agent) and shall, on behalf of each of the Bank Investors,
agree to purchase from the Transferor undivided percentage
ownership interests in each and every Receivable, together with
Related Security, Collections and Proceeds with respect thereto,
to the extent that Collections are available for such Transfer
in accordance with Section 2.5 hereof, such that after
giving effect to such Transfer, (i) the amount of the Net
Investment at the close of business on such Business Day shall
be equal to the amount of the Net Investment at the close of the
business on the Business Day immediately preceding such Business
Day plus the Transfer Price of any Incremental Transfer made on
such day, if any, and (ii) the Transferred Interest in each
Receivable, together with Related Security, Collections and
Proceeds with respect thereto, shall be equal to the Transferred
Interest in each other Receivable, together with Related
Security, Collections and Proceeds with respect thereto.
(c) All Transfers. Each Transfer shall constitute a
purchase by the Agent, on behalf of the Investors, of undivided
percentage ownership interests in each and every Receivable,
together with Related Security, Collections and Proceeds with
respect thereto, then existing, as well as in each and every
Receivable, together with Related Security, Collections and
Proceeds with respect thereto, which arises at any time after
the date of such Transfer. The Agent’s aggregate undivided
percentage ownership interest in the Receivables, together with
the Related Security, Collections and Proceeds with respect
thereto, held on behalf of the Investors, shall equal the
Percentage Factor in effect from time to time. The Agent shall
hold the Transferred Interests on behalf of the Investors in
accordance with each such Investor’s percentage interest in
the Transferred Interest (determined on the basis of the
relationship that the portion of the Net Investment funded by
such Investor bears to the aggregate Net Investment of all
Investors at such time).
(d) Certificate. The Transferor has issued to the
Agent the Certificate, in the form of Exhibit M. The
Certificate remains in full force and effect and is hereby
ratified and confirmed.
(e) Percentage Factor. The Percentage Factor shall
be computed by the Collection Agent as of the opening of
business of the Collection Agent on the effective date of this
Agreement. Thereafter until the Termination Date, the Collection
Agent shall recompute the Percentage Factor at the time of each
Incremental Transfer pursuant to Section 2.2(a) and as of
the close of business of the Collection Agent on each Business
Day (other than a day after the Termination Date) and report
such recomputation to the Agent monthly, in the Investor Report,
and at such other times as may be requested by the Agent. The
Percentage Factor shall remain constant from the time as of
which any such computation or recomputation is made until the
time as of which the next such recomputation, if any, shall be
made, notwithstanding any additional Receivables arising, any
Incremental Transfer made pursuant to Section 2.2(a) or any
Reinvestment Transfer made pursuant to Sections 2.2(b) and
2.5 during any period between computations of the Percentage
Factor. The Percentage Factor, as computed as of the close of
business on the Business Day immediately preceding the
Termination Date, shall remain constant at all times on and
after the Termination Date until the date on which the Net
Investment has been reduced to zero, and all accrued Discount
and Servicing Fees have been paid in full and all other
Aggregate Unpaids have been paid in full at which time the
Percentage Factor shall be recomputed in accordance with
Section 2.6.
Section 2.3. Selection
of Tranche Periods and Tranche Rates.
(a) Prior to the Termination Date; Transferred Interest
held on behalf of a Conduit Investor. At all times
hereafter, but prior to the Termination Date with respect to any
portion of the Net Investment held on behalf of a Conduit
Investor that is funded through the issuance of Commercial
Paper, such portion of the Net Investment shall be allocated to
a CP Tranche Period as set forth in the definition of such
term. Each Conduit Investor confirms that it is its intention to
allocate all or substantially all of the Net Investment held on
behalf of it to CP Tranche Periods, provided that such
Conduit Investor may determine, from time to time, in its sole
discretion, that funding such Net Investment through the
issuance of Commercial Paper is not possible or is not desirable
for any reason. If, prior to the Termination Date, any portion
of the Net Investment held on behalf of a Conduit Investor is
not funded through the issuance of Commercial Paper, then such
portion of the Net Investment shall be allocated to a BR Tranche
or a Eurodollar Tranche in accordance with Section 2.3(c)
in the same manner as if such portion of the Net Investment was
held by or on behalf of the Bank Investors. In the case of any
Tranche Period outstanding upon the Termination Date, such
Tranche Period shall end on such date.
(b) After the Termination Date; Transferred Interest
Held on behalf of a Conduit Investor. At all times on and
after the Termination Date, with respect to any portion of the
Transferred Interest which shall be held by the Agent
21
on behalf of a Conduit Investor, such Conduit Investor or its
Administrative Agent, as applicable, shall select all
Tranche Periods and Tranche Rates applicable thereto.
(c) Prior to the Termination Date; Transferred Interest
Held on Behalf of Bank Investor. At all times with respect
to any portion of the Transferred Interest held by the Agent on
behalf of the Bank Investors in any Related Group, but prior to
the Termination Date, the initial Tranche Period applicable
to such portion of the Net Investment allocable thereto shall be
a period of not greater than 7 days and such Tranche shall
be a BR Tranche. Thereafter, with respect to such portion, and
with respect to any other portion of the Transferred Interest
held on behalf of the Bank Investors (or any of them) in any
Related Group, provided that the Termination Date shall not have
occurred, the Tranche Period applicable thereto shall be a
Eurodollar Period and the applicable Tranche shall be a
Eurodollar Tranche, unless the Transferor has requested and the
applicable Administrative Agent has approved a
Tranche Period of less than 7 days, in which case such
Tranche shall be a BR Tranche. The Transferor shall give the
Administrative Agent for each Related Group irrevocable notice
by telephone of the new requested Tranche Period applicable
to the Bank Investors in such Related Group at least three
(3) Business Days prior to the expiration of any then
existing Tranche Period applicable to such Related Group
and, if the Transferor shall fail to provide such notice (or, if
the requested Tranche Period is less than 7 days, the
Administrative Agent does not consent to such request), the
applicable Administrative Agent on behalf of the Bank Investors
in such Related Group may, in its sole discretion, select the
new Tranche Period in respect of the applicable Tranche. In
the case of any Tranche Period outstanding upon the
occurrence of the Termination Date, such Tranche Period
shall end on the date of such occurrence.
(d) After the Termination Date; Transferred Interest
Held on behalf of Bank Investor. At all times on and after
the Termination Date, with respect to any portion of the
Transferred Interest held by the Agent on behalf of the Bank
Investors in any Related Group, the Administrative Agent for
such Related Group shall select all Tranche Periods and
Tranche Rates applicable thereto.
(e) Eurodollar Rate Protection; Illegality.
(i) If the Administrative Agent for any Related Group is
unable to obtain on a timely basis the information necessary to
determine the LIBOR Rate for any proposed Eurodollar Tranche,
then
(A) such Administrative Agent shall forthwith notify the
Investors in such Related Group, as applicable, and the
Transferor that the Eurodollar Rate cannot be determined for
such Eurodollar Tranche, and
(B) while such circumstances exist, neither such
Administrative Agent nor any of the Investors in such Related
Group shall allocate the Net Investment of any additional
Transferred Interests purchased during such period or reallocate
the Net Investment allocated to any then existing Tranche ending
during such period, to a Eurodollar Tranche.
(ii) If, with respect to any outstanding Eurodollar
Tranche, any Investor on behalf of which the Agent holds any
Transferred Interest therein notifies its Administrative Agent
that it is unable to obtain matching deposits in the London
interbank market to fund its purchase or maintenance of such
Transferred Interest or that the Eurodollar Rate applicable to
such Transferred Interest will not adequately reflect the cost
to such Investor of funding or maintaining its respective
Transferred Interest for such Tranche Period then such
Administrative Agent shall forthwith so notify the Transferor,
whereupon neither such Administrative Agent nor the Investors in
the Related Group shall, while such circumstances exist,
allocate any Net Investment of any additional Transferred
Interest purchased during such period or reallocate the Net
Investment allocated to any Tranche Period ending during
such period, to a Eurodollar Tranche and instead such
Transferred Interest shall be purchased as, or such Net
Investment shall be allocated to, a BR Tranche (notwithstanding
any election made by the Transferor pursuant to
Section 2.3(c) or otherwise).
(iii) Notwithstanding any other provision of this
Agreement, if any Investor shall notify its Administrative Agent
that such Investor has determined (or has been notified by any
Liquidity Provider) that the introduction of or any change in or
in the interpretation of any law or regulation makes it unlawful
(either for such Investor or such Liquidity Provider, as
applicable), or any central bank or other governmental authority
asserts that it is unlawful, for such Investor or such Liquidity
Provider, as applicable, to fund the purchases or maintenance of
Transferred Interests at the Eurodollar Rate, then (x) as
of the effective date of such notice from such Investor to its
Administrative Agent, the obligation or ability of the such
Investor to fund its purchase or maintenance of Transferred
Interests at the Eurodollar Rate shall be suspended until such
Investor notifies its Administrative Agent that the
circumstances causing such suspension no longer exist and
(y) the Net Investment of each Eurodollar Tranche in which
such Investor owns an interest shall either (1) if such
Investor may lawfully continue to maintain such Transferred
Interest at the Eurodollar Rate until the last day of the
applicable Tranche Period, be reallocated on the last day
of such Tranche Period to another Tranche Period in
respect of which the Net Investment allocated
22
thereto accrues Discount at a Tranche Rate other than the
Eurodollar Rate or (2) if such Investor shall determine
that it may not lawfully continue to maintain such Transferred
Interest at the Eurodollar Rate until the end of the applicable
Tranche Period, such Investor’s share of the Net
Investment allocated to such Eurodollar Tranche shall be deemed
to accrue Discount at the Base Rate from the effective date of
such notice until the end of such Tranche Period.
(f) Separate Tranches for Related Groups. In no
event shall portions of the Net Investment held by Investors
from different Related Groups be allocated to the same Tranche.
Section 2.4. Discount,
Fees and Other Costs and Expenses. Notwithstanding any
limitation on recourse contained herein, the Transferor shall
pay, as and when due in accordance with this Agreement, all fees
hereunder, Discount (including Discount due any Conduit Investor
or any Bank Investor), all amounts payable pursuant to
Article VIII hereof, if any, and the Servicing Fees. On the
last day of each Tranche Period (or, in the case of a CP
Tranche Period, by no later than the second Business Day
following the last day of such CP Tranche Period), the
Transferor shall pay to each Administrative Agent, on behalf of
the applicable Investors in its Related Group, an amount equal
to the accrued and unpaid Discount for such Tranche Period
together with, in the event the Transferred Interest is held on
behalf of a Conduit Investor, an amount equal to the discount
accrued on the Commercial Paper of such Conduit Investor to the
extent such Commercial Paper was issued in order to fund the
Transferred Interest in an amount in excess of the Transfer
Price of an Incremental Transfer. Discount shall accrue with
respect to each Tranche on each day occurring during the
Tranche Period related thereto. Nothing in this Agreement
shall limit in any way the obligations of the Transferor to pay
the amounts set forth in this Section 2.4.
Section 2.5. Non-Liquidation
Settlement and Reinvestment Procedures. On each day after
the date of any Incremental Transfer but prior to the
Termination Date and provided that no Potential Termination
Event shall have occurred and be continuing, the Collection
Agent shall, out of Collections received on or prior to such day
and not previously applied or accounted for: (i) set aside
and hold in trust for the Agent, on behalf of the applicable
Investors (or deposit into the Collection Account if so required
pursuant to Section 2.12 hereof), an amount equal to all
Discount and the Servicing Fee accrued through such day and not
so previously set aside or paid and (ii) apply the balance
of such Collections remaining after application of Collections
as provided in clause (i) of this Section 2.5 hereof
to the Transferor, for the benefit of the Agent, on behalf of
the applicable Investors, to the purchase of additional
undivided percentage interests in each Receivable pursuant to
Section 2.2(b) hereof. Any Collections so set aside as
described in clause (i) above shall be allocated, among the
Related Groups ratably in proportion to the accrued Discount and
Servicing Fee with respect to the Investors in each such Related
Group. On the last day of each Tranche Period applicable to
any portion of the Net Investment held by one or more Investors
in a Related Group (or, in the case of a CP Tranche Period,
by no later than the second Business Day following the last day
of such CP Tranche Period), from the amounts set aside as
described in clause (i) of the first sentence of this
Section 2.5 hereof that have been allocated to the
Investors in such Related Group, the Collection Agent shall
deposit to the applicable Administrative Agent’s account,
for the benefit of such Investors, an amount equal to the
accrued and unpaid Discount for such Tranche Period and
shall deposit to its own account an amount equal to the accrued
and unpaid Servicing Fee for such Tranche Period. The
applicable Administrative Agent, upon its receipt of such
amounts in such Administrative Agent’s account, shall
distribute such amounts to the applicable Investors entitled
thereto as set forth above; provided that if such
Administrative Agent shall have insufficient funds to pay all of
the above amounts in full on any such date, such Administrative
Agent shall pay such amounts ratably (based on the amounts owing
to each such Investor) to all such Investors entitled to payment
thereof. In addition, the Collection Agent shall remit to the
Transferor at the end of each Tranche Period, such portion
of Collections not allocated to the Agent, on behalf of the
applicable Investors.
Section 2.6. Liquidation
Settlement Procedures. (a) If at any time on or prior
to the Termination Date, the Percentage Factor is greater than
the Maximum Percentage Factor, then the Transferor shall
immediately pay to the Administrative Agents for the Related
Groups, for the benefit of the applicable Investors in their
respective Related Groups, from previously received Collections,
an aggregate amount equal to the amount such that, when applied
in reduction of the Net Investment, will result in the
Percentage Factor being less than or equal to the Maximum
Percentage Factor. Such aggregate amount shall be paid to such
Administrative Agents ratably in accordance with the portion of
the Net Investment held by their respective Related Groups. Any
amount so paid to an Administrative Agent for a Related Group
shall be applied to the reduction of the Net Investment of
Tranche Periods applicable to such Related Group selected
by such Administrative Agent.
(b) On the Termination Date and on each day thereafter, and
on each day on which a Termination Event or a Potential
Termination Event has occurred and is continuing, the Collection
Agent shall set aside and hold in trust for the Agent, on behalf
of the Investors (or deposit into the Collection Account if so
required pursuant to Section 2.12 hereof) all Collections
received on such day. The Collections so set aside shall be
allocated, among the Related
23
Groups ratably in accordance with the portion of the Net
Investment held by each such Related Group. On the Termination
Date or the day on which a Termination Event or Potential
Termination Event has occurred and is continuing, the Collection
Agent shall deposit to each Administrative Agent’s account,
for the benefit of the applicable Investors, any amounts set
aside pursuant to Section 2.5 above which have been
allocated to such Administrative Agent’s Related Group as
described in Section 2.5. On the last day of each
Tranche Period to occur on or after the Termination Date,
during the continuance of a Termination Event or Potential
Termination Event, the Collection Agent shall deposit to each
Administrative Agent’s account to the extent not already so
deposited, for the benefit of the applicable Investors in its
Related Group, the amounts so set aside that have been allocated
to the Investors in such Related Group pursuant to this
Section 2.6, but not to exceed the sum of (i) the
accrued Discount for such Tranche Period, (ii) the
portion of the Net Investment allocated to such
Tranche Period, and (iii) all other Aggregate Unpaids.
On such day, the Collection Agent shall deposit to its account,
from the amounts so allocated to the Investors in such Related
Group pursuant to the preceding sentence which remain after
payment in full of the aforementioned amounts, the accrued
Servicing Fee for such Tranche Period. If with respect to
any Tranche Period there shall be insufficient funds on
deposit for the Collection Agent to distribute funds in payment
in full of the aforementioned amounts, the Collection Agent
shall distribute funds first, in payment of the accrued
Discount for such Tranche Period, second, if the
Transferor, the Seller or any Affiliate of the Transferor or the
Seller is not then the Collection Agent, to the Collection
Agent’s account, in payment of the Servicing Fee payable to
the Collection Agent to the extent allocable to such
Tranche Period, third, in reduction of the Net
Investment allocated to such Tranche Period fourth,
in payment of all fees payable by the Transferor hereunder to
the members of the relevant Related Group, fifth, in
payment of all other Aggregate Unpaids owing to the members of
such Related Group and sixth, if the Transferor, the
Seller or any Affiliate of the Transferor or the Seller is the
Collection Agent, to its account as Collection Agent, in payment
of the Servicing Fee payable to such Person as Collection Agent
to the extent such Servicing Fee is allocable to such
Tranche Period. The applicable Administrative Agent, upon
its receipt of such amounts in such Administrative Agent’s
account, shall distribute such amounts to the Investors in its
Related Group entitled thereto as set forth above;
provided that if such Administrative Agent shall have
insufficient funds to pay all of the above amounts in full on
any such date, such Administrative Agent shall pay such amounts
in the order of priority set forth above and, with respect to
any such category above for which such Administrative Agent
shall have insufficient funds to pay all amounts owing on such
date, ratably (based on the amounts in such categories owing to
such Persons) among all such Persons entitled to payment
thereof. For purposes of this Section 2.6, the Agent shall
be deemed to be a member of the Related Group that includes
Paradigm.
(c) Following the later to occur of the Termination Date
and the date on which the Net Investment has been reduced to
zero, all accrued Discount and Servicing Fees have been paid in
full and all other Aggregate Unpaids have been paid in full,
(i) the Collection Agent shall recompute the Percentage
Factor, (ii) the Agent, on behalf of the Investors, shall
be considered to have reconveyed to the Transferor all of the
right, title and interest in and to the Affected Assets
(including the Transferred Interest) without recourse,
representation or warranty of any type or kind, (iii) the
Collection Agent shall pay to the Transferor any remaining
Collections set aside and held by the Collection Agent for the
Investors pursuant to this Section 2.6 and (iv) the
Agent, on behalf of the Investors, shall execute and deliver to
the Transferor, at the Transferor’s expense, such documents
or instruments as are necessary to terminate the Agent’s
interests in the Affected Assets. Any such documents shall be
prepared by or on behalf of the Transferor.
Section 2.7. Fees.
Notwithstanding any limitation on recourse contained in this
Agreement, on the last day of each month the Transferor shall
pay the following non-refundable fees: (i) to each Conduit
Investor, solely for its own account, the Program Fee with
respect to such Conduit Investor, (ii) to each Conduit
Investor, the Facility Fee with respect to the applicable
Related Group (for distribution to the Bank Investors in such
Related Group) and (iii) to the Agent the Administration
Fee.
SECTION 2.8. Protection of Ownership Interest of
the Investors; Special Accounts, Intermediate Concentration
Account and Concentration Account. (a) The Transferor
agrees that it will, and will cause the Seller to, from time to
time, at its expense, promptly execute and deliver all
instruments and documents and take all actions as may be
necessary or as the Agent or any Administrative Agent may
reasonably request in order to perfect or protect the
Transferred Interest or to enable the Agent, the Administrative
Agents or the Investors to exercise or enforce any of their
respective rights hereunder. Without limiting the foregoing, the
Transferor will, and will cause the Seller to, upon the request
of the Agent, any Administrative Agent or any of the Investors,
in order to accurately reflect this purchase and sale
transaction, execute and file such financing or continuation
statements or amendments thereto or assignments thereof as
permitted pursuant to Section 9.7 hereof as may be
requested by the Agent, any Administrative Agent or any of the
Investors and (y) xxxx its respective master data
processing records and other documents with a legend describing
the conveyance to the Transferor of the Receivables (in the case
of the Seller) and to the Agent, for the benefit of the
Investors, of the Transferred Interest. The Transferor shall,
and will cause the
24
Seller to, upon request of the Agent, any Administrative Agent
or any of the Investors obtain such additional search reports as
the Agent, any Administrative Agent or any of the Investors
shall request. To the fullest extent permitted by applicable
law, the Agent shall be authorized to sign and file financing
statements , continuation statements and amendments thereto
relating to the Receivables, Related Security and Collections
and assignments thereof to the Agent or any successor or
permitted assign of the Agent without the Transferor’s or
the Seller’s signature. Carbon, photographic or other
reproduction of this Agreement or any financing statement shall
be sufficient as a financing statement. The Transferor shall
not, and shall not permit the Seller or any Transferring
Affiliate to, change its respective name, identity or corporate
structure nor relocate its respective chief executive office or
jurisdiction of organization or any office where Records are
kept unless it shall have: (i) given the Agent and each
Administrative Agent at least thirty (30) days prior notice
thereof and (ii) prepared at Transferor’s expense and
delivered to the Agent all financing statements, instruments and
other documents necessary to preserve and protect the
Transferred Interest or requested by the Agent or any
Administrative Agent in connection with such change or
relocation; provided that the jurisdiction of
organization for the Transferor, the Seller and each
Transferring Affiliate shall at all times be a State within the
United States. Any filings under the UCC or otherwise that are
occasioned by such change in name or location shall be made at
the expense of Transferor.
(b) The Agent is hereby authorized at any time to date, and
to deliver (i) to the Concentration Account Bank, the
Concentration Account Notice and (ii) to each Intermediate
Concentration Account Bank an Intermediate Concentration Account
Notice. The Transferor hereby, when the Agent shall deliver the
Concentration Account Notice to the Concentration Account Bank
or an Intermediate Concentration Account Notice to any
Intermediate Concentration Account Bank, transfers to the Agent
the exclusive ownership and control of the Concentration Account
or the applicable Intermediate Concentration Account, as the
case may be, and shall take any further action that the Agent
may reasonably request to effect such transfer. In case any
authorized signatory of the Transferor whose signature shall
appear on the Concentration Account Agreement or any
Intermediate Concentration Account Agreement shall cease to have
such authority before the delivery of the Concentration Account
Notice or Intermediate Concentration Account Notice, as the case
may be, such signature shall nevertheless be valid and
sufficient for all purposes as if such authority had remained in
force at the time of such delivery. The Agent shall, at the time
it delivers the Concentration Account Notice to the
Concentration Account Bank or an Intermediate Concentration
Account Notice to any Intermediate Concentration Account Bank,
provide a copy thereof to the Transferor; provided that
the failure on the part of the Agent to provide such notice to
the Transferor shall not affect the validity or effectiveness of
the Concentration Account Notice or Intermediate Concentration
Account Notice, as applicable, or impair any rights of the
Agent, any Administrative Agent or any of the Investors
hereunder.
(c) In addition and without limiting the authority of the
Agent set forth in subsection (b) above, but subject to
subsection (d) below, the Transferor shall (i) cause
each Originating Entity to instruct any or all of the Special
Account Banks (which instructions shall be maintained in full
force and effect at all times) to transfer directly to the
Concentration Account or to an Intermediate Concentration
Account all Collections from time to time on deposit in the
applicable Special Accounts on a daily basis in accordance with
the terms set forth in the applicable Special Account Letter and
(ii) instruct each Intermediate Concentration Account Bank
(which instructions shall be maintained in full force and effect
at all times) to transfer directly to the Concentration Account
all Collections from time to time on deposit in the applicable
Intermediate Concentration Accounts on a daily basis in
accordance with the terms set forth in the applicable
Intermediate Concentration Account Agreement. In the event the
Transferor shall at any time determine, for any of the reasons
described in subsection (d) below, that the Transferor or
any Originating Entity shall be unable to comply fully with the
requirements of this subsection (c), the Transferor shall
promptly so advise the Agent and each Administrative Agent, and
the Transferor, the Agent and each Administrative Agent shall
commence discussions with a view toward implementing an
alternative arrangement therefor satisfactory to the Agent and
each Administrative Agent.
(d) Anything to the contrary herein notwithstanding, all
Medicare or Medicaid payments which are made by an Obligor with
respect to any Receivables shall be collected from such Obligor
only by (i) the applicable Originating Entity or
(ii) an agent of such Originating Entity, except to
the extent that an Obligor may be required to submit any such
payments directly to a Person other than such Originating Entity
pursuant to a court-ordered assignment which is valid, binding
and enforceable under applicable federal and state Medicare
Regulations and Medicaid Regulations; and neither this Agreement
nor any other Transaction Document shall be construed to permit
any other Person, in violation of applicable Medicare
Regulations or Medicaid Regulations to collect or receive, or to
be entitled to collect or receive, any such payments prior to
such Originating Entity’s or such agent’s receipt
thereof.
Section 2.9. Deemed
Collections; Application of Payments. (a) If on any day
the Outstanding Balance of a Receivable is either
(x) reduced as a result of any defective, rejected or
returned merchandise or services, any discount, credit,
Contractual Adjustment, rebate, dispute, warranty claim,
repossessed or returned goods,
25
chargeback, allowance, any billing adjustment or other
adjustment, or (y) reduced or canceled as a result of a
setoff or offset in respect of any claim by any Person (whether
such claim arises out of the same or a related transaction or an
unrelated transaction), the Transferor shall be deemed to have
received on such day a Collection of such Receivable in the
amount of such reduction or cancellation and the Transferor
shall pay to the Collection Agent an amount equal to such
reduction or cancellation and such amount shall be applied by
the Collection Agent as a Collection in accordance with
Section 2.5 or 2.6 hereof, as applicable. The Net
Investment shall be reduced by the amount of such payment
applied to the reduction of the Net Investment and actually
received by the applicable Administrative Agent.
(b) If on any day it is determined that (i) any of the
representations or warranties in Article III was untrue
with respect to a Receivable as of the date such representation
or warranty was made or (ii) any of the representations or
warranties set forth in Section 3.1(d) or
Section 3.1(j) becomes untrue with respect to a Receivable
(whether on or after the date of any transfer of an interest
therein to the Agent or any of the Investors as contemplated
hereunder) or (iii) a Receivable that was formerly treated
as or represented to be an Eligible Receivable does not satisfy
the requirements in paragraph (xi) of the definition of
Eligible Receivable, the Transferor shall be deemed to have
received on such day a Collection on such Receivable in full and
the Transferor shall on such day pay to the Collection Agent an
amount equal to the Outstanding Balance of such Receivable and
such amount shall be allocated and applied by the Collection
Agent as a Collection allocable to the Transferred Interest in
accordance with Section 2.5 or 2.6 hereof, as applicable.
The Net Investment shall be reduced by the amount of such
payment applied to the reduction of the Net Investment and
actually received by the applicable Administrative Agent.
(c) Any payment by an Obligor in respect of any
indebtedness owed by it to the Transferor or the Seller shall,
except as otherwise specified by such Obligor or otherwise
required by contract or law and unless otherwise instructed by
each Administrative Agent, be applied as a Collection of any
Receivable of such Obligor included in the Transferred Interest
(starting with the oldest such Receivable) or the extent of any
amounts then due and payable thereunder before being applied to
any other receivable or other indebtedness of such Obligor.
Section 2.10. Payments
and Computations, Etc. All amounts to be paid or deposited
by the Transferor or the Collection Agent hereunder shall be
paid or deposited in accordance with the terms hereof no later
than 12 p.m. (New York City time) on the day when due in
immediately available funds; if such amounts are payable to the
Agent or any Administrative Agent (whether on behalf of any of
the Investors or otherwise) they shall be paid or deposited in
the applicable account indicated in Section 10.3 hereof,
until otherwise notified by the Agent or such Administrative
Agent, as the case may be. The Transferor shall, to the extent
permitted by law, pay to each Administrative Agent, for the
benefit of itself and the Investors in its Related Group, upon
demand, interest on all amounts owing to such Administrative
Agent or such Investors not paid or deposited when due hereunder
at a rate equal to 2% per annum plus the Base Rate. All
computations of Discount, interest and all per annum fees
hereunder shall be made on the basis of a year of 360 days
for the actual number of days (including the first but excluding
the last day) elapsed. Any computations by an Administrative
Agent of amounts payable by the Transferor hereunder to such
Administrative Agent or any Investor in its Related Group shall
be binding upon all parties hereto absent manifest error.
Section 2.11. Reports.
On or prior to the last Business Day of each month, the
Collection Agent shall prepare and forward to the Agent and each
Administrative Agent (i) an Investor Report as of the end
of the last day of the immediately preceding month, (ii) a
listing by Primary Payor of all Receivables together with an
analysis as to the aging of such Receivables as of such last
day, but only to the extent the Receivable Systems of the
Collection Agent are able to generate such information,
(iii) written confirmation that all payments in cash, by
way of credits to intercompany accounts (in the case of
purchases made by the Seller from any Transferring Affiliate) or
by way of application of proceeds of advances made under the
Subordinated Note (in the case of purchases made by the
Transferor from the Seller) have been made by the Transferor
under the Receivables Purchase Agreement or by the Seller under
the Transferring Affiliate Letter or the BMA Transfer Agreement,
as applicable, in accordance with the respective terms of such
agreement, and (iv) such other information as the Agent or
any Administrative Agent may reasonably request.
Section 2.12. Collection
Account. The Collection Agent has established and shall
maintain with the Agent a segregated account (the
“Collection Account”), bearing a designation
clearly indicating that the funds deposited therein are held for
the benefit of the Agent, on behalf of the Investors. During the
continuance of a Collection Agent Default or a Termination Event
or a Potential Termination Event, the Collection Agent shall
remit daily within forty-eight hours of receipt to the
Collection Account all Collections received with respect to any
Receivables. Funds on deposit in the Collection Account (other
than investment earnings) shall be invested by the Agent in
Eligible Investments that will mature so that such funds will be
available prior to the last day of each successive
Tranche Period following such investment. On the last day
of each Tranche Period, such funds on deposit, together
26
with all interest and earnings (net of losses and investment
expenses) thereon, in the Collection Account shall be made
available for application in accordance with the terms of
Section 2.6 or otherwise for application toward payments
required to be made hereunder (including Discount) by the
Transferor. On the date on which the Net Investment is zero, all
accrued Discount and Servicing Fees have been paid in full and
all other Aggregate Unpaids have been paid in full, any funds
remaining on deposit in the Collection Account shall be paid to
the Transferor.
Section 2.13. Sharing
of Payments, Etc. If any Investor (for purposes of this
Section only, being a “NPRBI”) shall obtain any
payment (whether voluntary, involuntary, through the exercise of
any right of setoff, or otherwise) on account of Transferred
Interest owned by it (other than pursuant to Section 2.7,
or Article VIII and other than as a result of the
differences in the timing of the applications of Collections
pursuant to Section 2.5 or 2.6) in excess of its ratable
share of payments on account of Transferred Interest obtained by
the Investors entitled thereto, such NPRBI shall forthwith
purchase from the other Investors entitled to a share of such
amount participations in the Transferred Interests owned by such
other Investors the excess payment ratably with each such other
Investor entitled thereto; provided, however, that
if all or any portion of such excess payment is thereafter
recovered from such NPRBI, such purchase from each such other
Investor shall be rescinded and each such other Investor shall
repay to the NPRBI the purchase price paid by such NPRBI for
such participation to the extent of such recovery, together with
an amount equal to such other Investor’s ratable share
(according to the proportion of (a) the amount of such
other Investor’s required payment to (b) the total
amount so recovered from the NPRBI) of any interest or other
amount paid or payable by the NPRBI in respect of the total
amount so recovered.
Section 2.14. Right
of Setoff. Without in any way limiting the provisions of
Section 2.13, each Investor is hereby authorized (in
addition to any other rights it may have) at any time after the
occurrence of the Termination Date or during the continuance of
a Potential Termination Event to setoff, appropriate and apply
(without presentment, demand, protest or other notice which are
hereby expressly waived) any deposits (other than any deposits
then being held in any Special Account maintained by an Investor
as to which deposits the Investors waive their rights of set-off
in respect of the Aggregate Unpaid) and any other indebtedness
held or owing by any Investor to, or for the account of, the
Transferor against the amount of the Aggregate Unpaids owing by
the Transferor to such Investor or to the Agent or any
Administrative Agent on behalf of such Investor (even if
contingent or unmatured).
Section 2.15. Additional
Transferring Affiliates. (a) If (i) one or more
direct or indirect wholly-owned subsidiaries of FMCH (other than
the Transferring Affiliates) now owned or hereafter acquired, is
primarily engaged in the same business as is conducted on the
date hereof by the Originating Entities or (ii) FMCH
reorganizes its corporate structure such that facilities
generating Receivables on the date hereof (or acquired as
contemplated by clause (i)) are owned by one or more additional
wholly-owned subsidiaries of FMCH, any or all of the
wholly-owned subsidiaries referred to in clauses (i) and
(ii) may, with the prior written consent of each
Administrative Agent (which consent shall not be unreasonably
withheld or delayed), become Transferring Affiliates under this
Agreement upon delivery to each Administrative Agent of
(x) counterparts of the Transferring Affiliate Letter duly
executed by such subsidiary or subsidiaries and (y) the
documents relating to such subsidiary or subsidiaries of the
kind delivered by or on behalf of the Transferring Affiliates
(other than BMA) pursuant to Section 4.1, together with
such other instruments, documents and agreements as any
Administrative Agent may reasonably request in connection
therewith.
(b) Upon the addition of any wholly-owned subsidiary of
FMCH as a Transferring Affiliate pursuant to subsection (a)
above, the provisions of this Agreement, including
Exhibit Q, shall, without further act or documentation, be
deemed amended to apply to such subsidiary to the same extent as
the same apply to the Transferring Affiliates as of the date
hereof and the term “Transferring Affiliate” in this
Agreement shall mean and refer to such subsidiary as well as
each then existing Transferring Affiliate.
(c) The Transferor may terminate RenaLab, Inc. as a
Transferring Affiliate at any time prior to March 31, 2007
so long as (i) at the time of such termination, the
aggregate Outstanding Balance of the Receivables originated by
RenaLab, Inc. does not exceed $15,000,000 and (ii) all of
the equity interests in RenaLab, Inc. have been (or will be, at
the time of termination) sold to a third party that is not an
Affiliate of the Transferor. Any such termination shall be made
upon written notice to the Administrative Agents from the
Collection Agent and the Transferor (i) stating that
Renalab, Inc. has been terminated as a Transferring Affiliate
and (ii) indicating the effective date of such termination.
On the effective date of such termination Exhibit Q, shall,
without further act or documentation, be deemed amended to
remove Renalab, Inc. from the list of Transferring Affiliates
set forth therein; provided that Renalab, Inc. shall
continue to be a “Transferring Affiliate” with respect
to any Receivables that arose prior to such effective date.
Section 2.16. Optional
Repurchase of Transferred Interest. The Transferor may at
any time at its option elect to repurchase the Transferred
Interest on not less than sixty (60) days’ prior
written notice to each Administrative
27
Agent (a “Repurchase Notice”) specifying the
date on which such repurchase shall occur (the
“Repurchase Date”) and that such Repurchase
Date shall be the Termination Date hereunder. By no later than
11:00 a.m. (New York time) on the Repurchase Date, the
Transferor shall pay to each Administrative Agent, for the
account of the members of its Related Group, an amount (the
“Repurchase Price”) equal to the sum of
(i) the portion of the Net Investment funded by the
Investors in such Related Group, (ii) all Discount accrued
and to accrue thereon through the last day of the applicable
Tranche Period(s) to which such Net Investment has been
allocated and (iii) all other Aggregate Unpaids owing to
the members of such Related Group or any related Indemnified
Party under the Transaction Documents accrued through the date
of such payment. The Repurchase Price payable with respect to
any Related Group shall be calculated by the related
Administrative Agent and notified to the Transferor, which
calculation shall be conclusive and binding absent manifest
error. By delivering a Repurchase Notice the Transferor shall be
deemed to have designated the Repurchase Date as the
“Termination Date” as contemplated by clause (i)
of the definition of such term.
ARTICLE III
REPRESENTATIONS
AND WARRANTIES
Section 3.1. Representations
and Warranties of the Transferor. The Transferor
represents and warrants to the Agent, each Administrative Agent
and each Investor that:
(a) Corporate Existence and Power. The Transferor is
a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation and
has all corporate power and all material governmental licenses,
authorizations, consents and approvals required to carry on its
business in each jurisdiction in which its business is now
conducted. The Transferor is duly qualified to do business in,
and is in good standing in, every other jurisdiction in which
the nature of its business requires it to be so qualified,
except where the failure to be so qualified or in good standing
would not have a Material Adverse Effect.
(b) Corporate and Governmental Authorization;
Contravention. The execution, delivery and performance by
the Transferor of this Agreement, the Receivables Purchase
Agreement, the Fee Letters, the Certificates, the Transfer
Certificates and the other Transaction Documents to which the
Transferor is a party are within the Transferor’s corporate
powers, have been duly authorized by all necessary corporate
action, require no action by or in respect of, or filing with,
any Official Body or official thereof (except as contemplated by
Section 2.8 hereof), and do not contravene, or constitute a
default under, any provision of applicable law, rule or
regulation (including, without limitation, any CHAMPUS/VA
Regulation, any Medicaid Regulation or any Medicare Regulation)
or of the Certificate of Incorporation or Bylaws of the
Transferor or of any agreement, judgment, injunction, order,
writ, decree or other instrument binding upon the Transferor or
result in the creation or imposition of any Adverse Claim on the
assets of the Transferor or any of its Subsidiaries (except as
contemplated by Section 2.8 hereof).
(c) Binding Effect. Each of this Agreement, the
Receivables Purchase Agreement, the Fee Letters, the
Certificates and the other Transaction Documents to which the
Transferor is a party constitutes and the Transfer Certificate
upon payment of the Transfer Price set forth therein will
constitute the legal, valid and binding obligation of the
Transferor, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, moratorium or
other similar laws affecting the rights of creditors generally.
(d) Perfection. Immediately preceding each Transfer
hereunder, the Transferor shall be the owner of all of the
Receivables, free and clear of all Adverse Claims. On or prior
to each Transfer and each recomputation of the Transferred
Interest, all financing statements and other documents required
to be recorded or filed, or notices to Obligors to be given, in
order to perfect and protect the Agent’s Transferred
Interest against all creditors of and purchasers from the
Transferor and the Seller will have been duly filed in each
filing office necessary for such purpose and all filing fees and
taxes, if any, payable in connection with such filings shall
have been paid in full.
(e) Accuracy of Information. All information
heretofore furnished by the Transferor (including without
limitation, the Investor Reports, any reports delivered pursuant
to Section 2.11 hereof and the Transferor’s financial
statements) to any Investor, the Agent or any Administrative
Agent for purposes of or in connection with this Agreement or
any transaction contemplated hereby is, and all such information
hereafter furnished by the Transferor to the any Investor, the
Agent or any Administrative Agent will be, true and accurate in
every material respect, on the date such information is stated
or certified.
(f) Tax Status. The Transferor has filed all tax
returns (federal, state and local) required to be filed and has
paid or made adequate provision for the payment of all taxes,
assessments and other governmental charges.
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(g) Action, Suits. Except as set forth in
Exhibit H hereof, there are no actions, suits or
proceedings pending, or to the knowledge of the Transferor
threatened, in or before any court, arbitrator or other body,
against or affecting (i) the Transferor or any of its
properties or (ii) any Affiliate of the Transferor or its
respective properties, which may, in the case of proceedings
against or affecting any such Affiliate, individually or in the
aggregate, have a Material Adverse Effect.
(h) Use of Proceeds. No proceeds of any Transfer
will be used by the Transferor to acquire any security in any
transaction which is subject to Section 13 or 14 of the
Securities Exchange Act of 1934, as amended.
(i) Place of Business. The principal place of
business and chief executive office of the Transferor are
located at the address of the Transferor indicated in
Section 10.3 hereof and the offices where the Transferor
keeps substantially all its Records, are located at the
address(es) described on Exhibit I or such other locations
notified to each Administrative Agent in accordance with
Section 2.8 hereof in jurisdictions where all action
required by Section 2.8 hereof has been taken and
completed. The principal place of business and chief executive
office of each Originating Entity is located at the address of
such Originating Entity indicated in Exhibit I hereof and
the offices where the each Originating Entity keeps
substantially all its Records are located at the address(es)
specified on Exhibit I with respect to such Originating
Entity or such other locations notified to each Administrative
Agent in accordance with Section 2.8 hereof in
jurisdictions where all action required by Section 2.8
hereof has been taken and completed. The jurisdiction of
organization of each of the Seller and the Transferor is the
State of Delaware. The jurisdiction of organization for each
Transferring Affiliate is the state specified opposite such
Transferring Affiliate’s name on Exhibit Q.
(j) Good Title. Upon each Transfer and each
recomputation of the Transferred Interest, the Agent shall
acquire a valid and perfected first priority undivided
percentage ownership interest to the extent of the Transferred
Interest or a first priority perfected security interest in each
Receivable that exists on the date of such Transfer and
recomputation and in the Related Security and Collections with
respect thereto free and clear of any Adverse Claim.
(k) Tradenames, Etc. As of the date hereof:
(i) the Transferor’s chief executive office is located
at the address for notices set forth in Section 10.3
hereof; (ii) the Transferor has no subsidiaries or
divisions; (iii) the Transferor has, within the last five
(5) years, not operated under any tradename, and, within
the last five (5) years, has not changed its name, merged
with or into or consolidated with any other corporation or been
the subject of any proceeding under Title 11, United States
Code (Bankruptcy); and (iv) none of the Originating
Entities has, within the last five (5) years, operated
under any tradename other than Fresenius Medical Care North
America or Spectra Renal Management or, within the last five
(5) years, changed its name, merged with or into or
consolidated with any other Person or been the subject of any
proceeding under Xxxxx 00, Xxxxxx Xxxxxx Code
(Bankruptcy), except in each case as described on Exhibit H.
(l) Nature of Receivables. Each Receivable
(x) represented by the Transferor or the Collection Agent
to be an Eligible Receivable (including in any Investor Report
or other report delivered pursuant to Section 2.11 hereof)
or (y) included in the calculation of the Net Receivables
Balance is an “eligible asset” as defined in
Rule 3a-7
under the Investment Company Act, of 1940, as amended and, in
the case of clause (y) above, is not a Receivable of the
type described in clauses (i) through (iii) of the
definition of “Net Receivables Balance.”
(m) Coverage Requirement; Amount of Receivables. The
Percentage Factor does not exceed the Maximum Percentage Factor.
(n) Credit and Collection Policy. Since
September 1, 2008, there have been no material changes in
the Credit and Collection Policy other than as permitted
hereunder. Since such date, no material adverse change has
occurred in the overall rate of collection of the Receivables.
(o) Collections and Servicing. Since
September 1, 2008, there has been no material adverse
change in the ability of the Collection Agent (to the extent it
is the Seller, the Transferor or any Subsidiary or Affiliate of
any of the foregoing) to service and collect the Receivables.
(p) No Termination Event. No event has occurred and
is continuing and no condition exists which constitutes a
Termination Event or a Potential Termination Event.
(q) Not an Investment Company. The Transferor is
not, and is not controlled by, an “investment company”
within the meaning of the Investment Company Act of 1940, as
amended, or is exempt from all provisions of such Act.
(r) ERISA. Each of the Transferor and its ERISA
Affiliates is in compliance in all material respects with ERISA
and no lien exists in favor of the Pension Benefit Guaranty
Corporation on any of the Receivables.
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(s) Special Account Banks, Intermediate Concentration
Account Banks and Concentration Bank. The names and
addresses of all the Special Account Banks (and, if applicable,
the Designated Account Agent in respect thereof), the
Intermediate Concentration Account Banks and the Concentration
Account Bank, together with the account numbers of the Special
Accounts at such Special Account Banks, the account numbers of
the Intermediate Concentration Accounts at such Intermediate
Concentration Account Banks and the account number of the
Concentration Account of the Transferor at the Concentration
Account Bank, are specified in Exhibit C hereto (or at such
other Special Account Banks, Intermediate Concentration Account
Banks or Concentration Account Bank, with such other Special
Accounts, Intermediate Concentration Accounts or Concentration
Account or with such other Designated Account Agents as have
been notified to each Administrative Agent in accordance with
Section 5.2(e)). This Agreement, together with the
Concentration Account Agreement and the Intermediate
Concentration Account Agreements, is effective to, and does,
transfer to the Agent, for the benefit of the Investors, all
right, title and interest of the Transferor in and to the
Concentration Account and each Intermediate Concentration
Account. The Transferor has not granted to any Person (other
than the Agent under the Concentration Account Agreement and the
Intermediate Concentration Account Agreements) dominion and
control over the Concentration Account or any Intermediate
Concentration Account, or the right to take dominion and control
over the Concentration Account or any Intermediate Concentration
Account at a future time or upon the occurrence of a future
event; neither the Transferor nor any other Parent Group Member
has granted to any Person dominion and control over any Special
Account, or the right to take dominion or control over any
Special Account at a future time or upon the occurrence of a
future event; and the Concentration Account, each Intermediate
Concentration Account and each Special Account is otherwise free
and clear of any Adverse Clam.
(t) Bulk Sales. No transaction contemplated hereby
or by the Receivables Purchase Agreement requires compliance
with any bulk sales act or similar law.
(u) Transfers Under Receivables Purchase Agreement.
With respect to each Receivable, and Related Security, if any,
with respect thereto, originally owed to the Seller or acquired
by the Seller from any Transferring Affiliate, the Transferor
purchased such Receivable and Related Security from the Seller
under the Receivables Purchase Agreement, such purchase was
deemed to have been made on the date such Receivable was
credited or acquired by the Seller and such purchase was made
strictly in accordance with the terms of the Receivables
Purchase Agreement.
(v) Preference; Voidability (Receivables Purchase
Agreement). The Transferor has given reasonably equivalent
value to the Seller in consideration for each transfer to the
Transferor of Receivables and Related Security from the Seller,
and no such transfer has been made for or on account of an
antecedent debt owed by the Seller to the Transferor and no such
transfer is or may be voidable under any Section of the
Bankruptcy Code.
(w) Transfers by Transferring Affiliates. With
respect to each Receivable, and Related Security, if any, with
respect thereto, originally owed to any Transferring Affiliate,
the Seller (i) purchased such Receivable and Related
Security from such Transferring Affiliate under the Transferring
Affiliate Letter or from BMA under the BMA Transfer Agreement,
such purchase being deemed to have been made on the date such
Receivable was created (or, in the case of a Receivable
outstanding on the Original Closing Date, on the Original
Closing Date), (ii) by the last Business Day of the month
following the month in which such purchase was so made, paid to
the applicable Transferring Affiliate in cash or by way of a
credit to such Transferring Affiliate in the appropriate
intercompany account, an amount equal to the face amount of such
Receivable and (iii) settled from time to time each such
credit, by way of payments in cash, or by way of credits in
amounts equal to cash expended, obligations incurred or the
value of services or property provided by or on behalf of the
Seller, in each case for the benefit of such Transferring
Affiliate, to the account of such Transferring Affiliate in
accordance with the Seller’s and such Transferring
Affiliate’s cash management and accounting policies.
(x) Preference; Voidability (Transferring
Affiliates). The Seller has given reasonably equivalent
value to each Transferring Affiliate in consideration for each
transfer to the Seller of Receivables and Related Security from
such Transferring Affiliate, and no such transfer has been made
for or on account of an antecedent debt owed by such
Transferring Affiliate to the Seller and no such transfer is or
may be voidable under any Section of the Bankruptcy Code.
(y) Ownership. FME KGaA 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 FME KGaA Credit Facility or is subject to put/call
agreements, forward agreements or other similar arrangements
among FME KGaA and its subsidiaries. All of the issued and
outstanding stock of each
30
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 FME KGaA Credit Facility or is
subject to put/call agreements, forward agreements or other
similar arrangements among FME KGaA and its subsidiaries;
provided, however, that FME KGaA may own directly or indirectly
stock that is not Voting Stock in subsidiaries of FMCH. All of
the issued and outstanding stock of the Transferor is owned by
NMC, free and clear of any Adverse Claim.
(z) Representations and Warranties of the Seller.
Each of the representations and warranties of the Seller set
forth in Section 3.1 of the Receivables Purchase Agreement
are true and correct in all material respects and the Transferor
hereby remakes all such representations and warranties for the
benefit of the Agent, each of the Investors and each
Administrative Agent.
Any document, instrument, certificate or notice delivered by the
Transferor to any Conduit Investor, Administrative Agent or the
Agent hereunder shall be deemed a representation and warranty by
the Transferor.
Section 3.2. Reaffirmation
of Representations and Warranties by the Transferor. On
each day that a Transfer is made hereunder, the Transferor, by
accepting the proceeds of such Transfer, whether delivered to
the Transferor pursuant to Section 2.2(a) or
Section 2.5 hereof, shall be deemed to have certified that
all representations and warranties described in Section 3.1
hereof are correct on and as of such day as though made on and
as of such day. Each Incremental Transfer shall be subject to
the further conditions precedent that:
(a) prior to the date of such Incremental Transfer, the
Collection Agent shall have delivered to the Agent and each
Administrative Agent, in form and substance satisfactory to the
Agent and each Administrative Agent, a completed Investor Report
dated within ten (10) days prior to the date of such
Incremental Transfer, together with a listing by Primary Payor
of all Receivables, and such additional information as may be
reasonably requested by any Administrative Agent or the Agent;
(b) on date of such Incremental Transfer, either
(i) FMCH’s long-term public senior debt securities are
rated as least B- by Standard & Poor’s and B3 by
Moody’s, or if neither Standard & Poor’s nor
Moody’s shall rate such securities, FMCH’s long-term
senior debt shall have a deemed rating of at least B as
determined by each Administrative Agent using its standard bond
rating methodology, or (ii) FME KGaA’s long-term
public senior debt securities are rated as least B- by
Standard & Poor’s and B3 by Moody’s, or if
neither Standard & Poor’s nor Moody’s shall
rate such securities, FME KGaA’s long-term senior debt
shall have deemed rating of at least B as determined by each
Administrative Agent using its standard bond rating methodology,
and the Transferor shall be deemed to have represented and
warranted that such conditions precedent have been satisfied.
Section 3.3. Representations
and Warranties of the Collection Agent. The Collection
Agent represents and warrants to the Agent, each Administrative
Agent and each of the Investors that:
(a) Corporate Existence and Power. The Collection
Agent is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of
incorporation and has all corporate power and all material
governmental licenses, authorizations, consents and approvals
required to carry on its business in each jurisdiction in which
its business is now conducted. The Collection Agent is duly
qualified to do business in, and is in good standing in, every
other jurisdiction in which the nature of its business requires
it to be so qualified, except where the failure to be so
qualified or in good standing would not have a Material Adverse
Effect.
(b) Corporate and Governmental Authorization;
Contravention. The execution, delivery and performance by
the Collection Agent of this Agreement are within the Collection
Agent’s corporate powers, have been duly authorized by all
necessary corporate action, require no action by or in respect
of, or filing with, any Official Body or official thereof, and
do not contravene, or constitute a default under, any provision
of applicable law, rule or regulation (including, without
limitation, any CHAMPUS/VA Regulation, any Medicaid Regulation
or any Medicare Regulation) or of the Certificate of
Incorporation or Bylaws of the Collection Agent or of any
agreement, judgment, injunction, order, writ, decree or other
instrument binding upon the Collection Agent or result in the
creation or imposition of any Adverse Claim on the assets of the
Collection Agent or any of its Subsidiaries.
(c) Binding Effect. This Agreement constitutes the
legal, valid and binding obligation of the Collection Agent,
enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, moratorium or similar laws affecting the
rights of creditors.
31
(d) Accuracy of Information. All information
heretofore furnished by the Collection Agent to the Agent, any
Investor or any Administrative Agent for the purposes of or in
connection with this Agreement or any transaction contemplated
hereby is, and all such information hereafter furnished by the
Collection Agent to the Agent, any Investor or any
Administrative Agent will be, true and accurate in every
material respect, on the date such information is stated or
certified.
(e) Action, Suits. Except as set forth in
Exhibit H, there are no actions, suits or proceedings
pending, or to the knowledge of the Collection Agent threatened,
against or affecting the Collection Agent or any Affiliate of
the Collection Agent or their respect properties, in or before
any court, arbitrator or other body, which may, individually or
in the aggregate, have a Material Adverse Effect.
(f) Nature of Receivables. Each Receivable included
in the calculation of the Net Receivables Balance is not a
Receivable of the type described in clauses (i) through
(iii) of the definition of “Net Receivables
Balance”.
(g) Amount of Receivables. The Percentage Factor
does not exceed the Maximum Percentage Factor.
(h) Credit and Collection Policy. Since
September 1, 2008, there have been no material changes in
the Credit and Collection Policy other than as permitted
hereunder. Since such date, no material adverse change has
occurred in the overall rate of collection of the Receivables.
(i) Collections and Servicing. Since
September 1, 2008, there has been no material adverse
change in the ability of the Collection Agent to service and
collect the Receivables.
(j) Not an Investment Company. The Collection Agent
is not, and is not controlled by, an “investment
company” within the meaning of the Investment Company Act
of 1940, as amended, or is exempt from all provisions of such
Act.
(k) Special Accounts, Intermediate Concentration
Accounts and Concentration Account. The names and addresses
of all the Special Account Banks (and, if applicable, the
Designated Account Agent in respect thereof), the Intermediate
Concentration Account Banks and the Concentration Account Bank,
together with the account numbers of the Special Accounts at
such Special Account Banks, the Intermediate Concentration
Accounts at such Intermediate Concentration Account Banks and
the account number of the Concentration Account of the
Transferor at the Concentration Account Bank, are specified in
Exhibit C hereto (or at such other Special Account Banks,
Intermediate Concentration Account Banks or Concentration
Account Bank, with such other Special Accounts, Intermediate
Concentration Accounts or Concentration Account or with such
other Designated Account Agents as have been notified to the
Agent in accordance with Section 5.2(e)).
ARTICLE IV
CONDITIONS
PRECEDENT
Section 4.1. Conditions
to Closing. The effectiveness of this Agreement shall
be subject to the conditions precedent that (i) all fees
required to be paid on or prior to the date hereof pursuant to
the Fee Letters or the separate renewal or up-front fee letters
entered into between the Transferor and the respective
Administrative Agents shall have been paid in full,
(ii) ABN AMRO Bank N.V. shall have received payment in full
of the Payout Amount under (and as defined in) the Amendment
Agreement and (iii) each Administrative Agent (or, in the
case of clause (n) below, the Administrative Agent(s) for
the relevant Conduit Investor(s)) shall have received the
following documents, instruments and agreements all of which
shall be in a form and substance acceptable to each
Administrative Agent:
(a) A copy of the resolutions of the Board of Directors of
the Transferor certified by its Secretary approving the
execution, delivery and performance by the Transferor of this
Agreement, the Receivables Purchase Agreement and the other
Transaction Documents to be delivered by the Transferor
hereunder or thereunder.
(b) A copy of the resolutions of the Board of Directors of
the Collection Agent certified by its Secretary approving the
execution, delivery and performance by the Collection Agent of
this Agreement and the other Transaction Documents to be
delivered by the Collection Agent hereunder or thereunder.
(c) The Certificates of Incorporation of the Transferor
certified by the Secretary of the Transferor dated a date
reasonably prior to the Closing Date.
(d) The Certificate of Incorporation of the Collection
Agent certified by the Secretary of the Collection Agent dated a
date reasonably prior to the Closing Date.
32
(e) A Good Standing Certificate for the Transferor issued
by the Secretary of State or a similar official of the
Transferor’s jurisdiction of incorporation and certificates
of qualification as a foreign corporation issued by the
Secretaries of State or other similar officials of each
jurisdiction where such qualification is material to the
transactions contemplated by this Agreement and the other
Transaction Documents, in each case, dated a date reasonably
prior to the Closing Date.
(f) A Good Standing Certificate for the Collection Agent
issued by the Secretary of State or a similar official of the
Collection Agent’s jurisdiction of incorporation and
certificates of qualification as a foreign corporation issued by
the Secretaries of State or other similar officials of each
jurisdiction when such qualification is material to the
transactions contemplated by this Agreement and the Receivables
Purchase Agreement and the other Transaction Documents, in each
case, dated a date reasonably prior to the Closing Date.
(g) A Certificate of the Secretary of the Transferor
substantially in the form of Exhibit L attached hereto.
(h) A Certificate of the Secretary of the Collection Agent
substantially in the form of Exhibit L attached hereto.
(i) If requested by the Agent, copies of proper financing
statements
(Form UCC-1),
dated a date reasonably near to the Closing Date naming the
Transferor as the debtor in favor of the Agent, for the benefit
of the Investors, as the secured party or other similar
instruments or documents as may be necessary or in the
reasonable opinion of the Agent desirable under the UCC of all
appropriate jurisdictions or any comparable law to perfect the
Agent’s undivided percentage interest in all Receivables
and the Related Security and Collections relating thereto.
(j) An opinion of Xxxxxxx X. Xxxx, Vice President/Deputy
General Counsel for FMCH, NMC and each Transferring Affiliate,
acting as counsel to FMCH, the Transferor, the Collection Agent
and the Originating Entities, in the respective form attached in
Exhibit K hereto.
(k) An opinion of Arent Fox LLP special counsel to FME
KGaA, FMCH, the Transferor and the Seller, covering certain
bankruptcy and general corporate matters in the respective forms
attached in Exhibit K hereto.
(l) An executed copy of this Agreement and each of the
other Transaction Documents to be executed by the Transferor,
any Originating Entity or the Collection Agent.
(m) Amendments to the Parent Agreement, the Receivables
Purchase Agreement, the Transferring Affiliate Letter and the
Concentration Account Agreement, in the respective forms
attached hereto as Exhibit P, duly executed by each of the
parties thereto.
(n) To the extent requested by any Conduit Investor,
confirmation from each Rating Agency rating the Commercial Paper
of such Conduit Investor that the execution and delivery of this
Agreement and the transactions contemplated hereby will not
result in the reduction or withdrawal of the then current rating
of the Commercial Paper issued by such Conduit Investor.
(o) Drafts of (i) the agreed upon procedures report
from KPMG in substantially the form attached as Exhibit T
and (ii) the “not material weakness” report from
KPMG in substantially the form attached as Exhibit U, in
each case satisfactory to the Administrative Agents.
(p) Such other documents, instruments, certificates and
opinions as the Agent or any Administrative Agent shall
reasonably request including each of the documents, instruments,
certificates and opinion identified on the List of Closing
Documents attached hereto as Exhibit S.
33
ARTICLE V
COVENANTS
Section 5.1. Affirmative
Covenants of Transferor. At all times from the date
hereof to the later to occur of (i) the Termination Date or
(ii) the date on which the Net Investment has been reduced
to zero, all accrued Discount and Servicing Fees shall have been
paid in full and all other Aggregate Unpaids shall have been
paid in full, in cash, unless each Administrative Agent shall
otherwise consent in writing:
(a) Financial Reporting. The Transferor will, and
will cause the Seller and each of the Transferring Affiliates
to, maintain, for itself and each of its respective
Subsidiaries, a system of accounting established and
administered in accordance with GAAP, and furnish to each
Administrative Agent:
(i) Annual Reporting. As soon as available, but in
any event within ninety-five (95) days after the end of
each fiscal year of the Transferor, financial statements for the
Transferor, including a balance sheet as of the end of such
period, the related statement of income, retained earnings,
shareholders’ equity and cash flows for such year prepared
by the Transferor in accordance with GAAP, all certified by one
of its officers.
(ii) Quarterly Reporting. As soon as available, but
in any event within fifty (50) days after the end of each
of the first three quarterly periods of the Transferor’s
fiscal years, financial statements for the Transferor, including
a balance sheet as at the close of each such period and a
related statement of income and retained earnings for the period
from the beginning of such fiscal year to the end of such
quarter, all certified by one of its officers.
In the case of each of the financial statements required to be
delivered under clause (i) or (ii) above, such
financial statement shall set forth in comparative form the
figures for the corresponding period or periods of the preceding
fiscal year or the portion of the fiscal year ending with such
period, as applicable (but not for any period prior to
September 27, 1996), in each case subject to normal
recurring year-end audit adjustments. Each such financial
statement shall be prepared in accordance with GAAP consistently
applied.
(iii) Compliance Certificate. Together with the
financial statements required hereunder, a compliance
certificate signed by the Transferor’s chief executive
officer or its senior financial officer stating that
(x) the attached financial statements have been prepared in
accordance with GAAP and accurately reflect the financial
condition of the Transferor and (y) to the best of such
Person’s knowledge, no Termination Event or Potential
Termination Event exists, or if any Termination Event or
Potential Termination Event exists, stating the nature and
status thereof and (z) such Person has reviewed each
Investor Report prepared by the Collection Agent since the end
of the last day of the immediately preceding monthly period of
the Transferor’s fiscal year and the information upon which
each such Investor Report was based and, based on such review,
such Person has concluded that (1) the calculation of the
Net Receivables Balance (including, without limitation, the
calculation of each of the items described in clauses (i)
through (iv) of the definition of “Net Receivables
Balance”) by the Collection Agent in each such Investor
Report is accurate and complete in all material respects and
(2) each such Investor Report is otherwise accurate and
complete in all material respects.
(iv) Notice of Termination Events or Potential
Termination Events. As soon as possible and in any event
within two (2) days (or the next Business Day thereafter if
such day is not a Business Day) after the occurrence of each
Termination Event or each Potential Termination Event, a
statement of the chief executive officer or the senior financial
officer of the Transferor setting forth details of such
Termination Event or Potential Termination Event and the action
which the Transferor proposes to take with respect thereto.
(v) Change in Credit and Collection Policy and Debt
Ratings. Within ten (10) days after the date any
material change in or amendment to the Credit and Collection
Policy is made, a copy of the Credit and Collection Policy then
in effect indicating such change or amendment.
(vi) Credit and Collection Policy. Within ninety
(90) days after the close of each of the Seller’s and
the Transferor’s fiscal years, a complete copy of the
Credit and Collection Policy then in effect.
(vii) ERISA. Promptly after the filing or receiving
thereof, copies of all reports and notices with respect to any
Reportable Event (as defined in Article IV of ERISA) which
the Transferor, the Seller or any ERISA Affiliate of the
Transferor or the Seller files under ERISA with the Internal
Revenue Service, the Pension Benefit Guaranty Corporation or the
U.S. Department of Labor or which the Transferor, the
34
Seller or any ERISA Affiliates of the Transferor or the Seller
receives from the Internal Revenue Service, the Pension Benefit
Guaranty Corporation or the U.S. Department of Labor.
(viii) Notices under Transaction Documents.
Forthwith upon its receipt thereof, a copy of each notice,
report, financial statement, certification, request for
amendment, directive, consent, waiver or other modification or
any other writing issued under or in connection with any other
Transaction Document by any party thereto (including, without
limitation, by the Transferor).
(ix) Investigations and Proceedings. Unless
prohibited by either (i) the terms of the subpoena, request
for information or other document referred to below,
(ii) law (including, without limitation, rules and
regulations) or (iii) restrictions imposed by the
U.S. federal or state government or any agency or
instrumentality thereof and subject to the execution by the
applicable Administrative Agent of a confidentiality agreement
in form and substance satisfactory to both the Transferor and
such Administrative Agent, as soon as possible and in any event
(A) within three Business Days after the Transferor (or
within five Business Days after any Originating Entity) receives
any subpoena, request for information, or any other document
relating to any possible violation by the Transferor or any
Originating Entity of, or failure by the Transferor or any
Originating Entity to comply with, any rule, regulation or
statute from HHS or any other governmental agency or
instrumentality, notice of such receipt and, if requested by the
Agent, the information contained in, or copies of, such
subpoena, request or other document, and (B) periodic
updates and other management reports relating to the subpoenas,
requests for information and other documents referred to in
clause (A) above as may be reasonably requested by any
Administrative Agent unless such updates or requests could
reasonably be deemed a contravention or waiver of any available
claim of legal privilege, or would otherwise materially impair
available defenses, of the Transferor or any Originating Entity.
(x) Other Information. Such other information
(including non-financial information) as the Agent or any
Administrative Agent may from time to time reasonably request
with respect to the Seller, the Transferor, any party to the
Parent Agreement, any Transferring Affiliate or any Subsidiary
of any of the foregoing.
(b) Conduct of Business. The Transferor
(i) will carry on and conduct its business in substantially
the same manner and in substantially the same fields of
enterprise as it is presently conducted and do all things
necessary to remain duly incorporated, validly existing and in
good standing as a domestic corporation in its jurisdiction of
incorporation and maintain all requisite authority to conduct
its business in each jurisdiction in which its business is
conducted and (ii) will cause each Originating Entity to do
each of the foregoing in respect of such Originating Entity.
(c) Compliance with Laws. The Transferor will, and
will cause each Originating Entity to, comply with all laws,
rules and regulations (including, without limitation, all
CHAMPUS/VA Regulations, Medicaid Regulations and Medicare
Regulations), and all orders, writs, judgments, injunctions,
decrees or awards to which it or its respective properties may
be subject.
(d) Furnishing of Information and Inspection of
Records. The Transferor will, and will cause each
Originating Entity to, furnish to each Administrative Agent from
time to time such information with respect to the Receivables as
such Administrative Agent may reasonably request, including,
without limitation, listings identifying the Obligor and the
Outstanding Balance for each Receivable. The Transferor will,
and will cause each Originating Entity to, at any time and from
time to time during regular business hours permit any
Administrative Agent, or its agents or representatives,
(i) to examine and make copies of and take abstracts from
Records and (ii) to visit the offices and properties of the
Transferor or such Originating Entity, as applicable, for the
purpose of examining such Records, and to discuss matters
relating to Receivables or the Transferor’s or such
Originating Entity’s performance hereunder and under the
other Transaction Documents to which such Person is a party with
any of the officers, directors, employees or independent public
accountants of the Transferor or such Originating Entity, as
applicable, having knowledge of such matters.
(e) Keeping of Records and Books of Account. The
Transferor will, and will cause each Originating Entity to,
maintain and implement administrative and operating procedures
(including, without limitation, an ability to recreate records
evidencing Receivables in the event of the destruction of the
originals thereof), and keep and maintain, all documents, books,
records and other information reasonably necessary or advisable
for the collection of all Receivables (including, without
limitation, records adequate to permit the daily identification
of each new Receivable and all Collections of and adjustments to
each existing Receivable). The Transferor will, and will cause
each Originating Entity to, give each Administrative Agent
notice of any
35
material change in the administrative and operating procedures
of the Transferor or such Originating Entity, as applicable,
referred to in the previous sentence.
(f) Performance and Compliance with Receivables and
Contracts. The Transferor, at its expense, will, and will
cause each Originating Entity to, timely and fully perform and
comply with all material provisions, covenant and other promises
required to be observed by the Transferor or such Originating
Entity under the Contracts related to the Receivables.
(g) Credit and Collection Policies. The Transferor
will, and will cause each Originating Entity to, comply in all
material respects with the Credit and Collection Policy in
regard to each Receivable and the related Contract.
(h) Special Accounts; Intermediate Concentration
Accounts; Concentration Account. The Transferor shall
(i) cause each Originating Entity to establish and maintain
Special Accounts with Special Account Banks, or to engage a
Designated Account Agent to maintain a Special Account with a
Special Account Bank on its behalf, (ii) instruct, and
cause each Originating Entity to instruct, all Obligors to cause
all collections to be deposited directly into a Special Account,
(iii) report, and cause each Originating Entity to report,
on each banking day to the Concentration Account Bank, the
amount of all Collections on deposit on such banking day in the
Special Accounts at each Special Account Bank or, if an
Intermediate Concentration Account has been established at such
Special Account Bank, the amount of all Collections on deposit
on such banking day in such Intermediate Concentration Account,
(iv) establish and maintain a Concentration Account with
the Concentration Account Bank, (v) instruct, and cause
each Originating Entity to instruct (or to cause the applicable
Designated Account Agent to instruct), each Special Account Bank
to transfer to the Concentration Account or an Intermediate
Concentration Account prior to the close of business on such
banking day all Collections on deposit during such banking day
in the Special Accounts at such Special Account Bank,
(vi) instruct each Intermediate Concentration Account Bank
to transfer to the Concentration Account prior to the close of
business on such banking day all Collections on deposit during
such banking day in the Intermediate Concentration Accounts at
such Intermediate Concentration Account Banks and
(vii) instruct the Concentration Account Bank to give to
each Special Account Bank on each banking day notice to transfer
to the Concentration Account all Collections on deposit during
such banking day in the Special Accounts at such Special Account
Bank (or, if an Intermediate Concentration Account has been
established at such Special Account Bank, in the Intermediate
Concentration Account at such Special Account Bank);
provided, however, that if the Collections on
deposit in any Special Account during such banking day shall be
less than $20,000.00 (the “Minimum Amount”),
the Special Account Bank shall transfer such Collections to the
Concentration Account or the applicable Intermediate
Concentration Account on the next succeeding banking day on
which Collections in such Special Account first exceed the
Minimum Amount. With respect to any Special Account that is
located at or maintained by a Bank Investor hereunder, the
Transferor shall, by not later than the date that occurs six
months after the Original Closing Date, cause the applicable
Originating Entity to close such Special Account and shall
instruct, and shall cause each applicable Originating Entity to
instruct, all Obligors theretofore remitting payments to such
Special Account to remit all future payments on Receivables and
Related Security to a Special Account located at and maintained
by a financial institution that is not a Bank Investor.
“(i) Collections Received. The Transferor shall, and
shall cause each Originating Entity to, segregate and hold in
trust, and deposit, immediately, but in any event not later than
the day that occurs forty-eight (48) hours thereafter (or,
if such day is not a Business Day, the next Business Day) after
its receipt thereof, to either the Intermediate Concentration
Account or the Concentration Account all Collections received
from time to time by the Transferor or such Originating Entity,
as the case may be.”
(j) Sale Treatment. The Transferor will not, and
will not permit any Originating Entity to, account for
(including for accounting and tax purposes), or otherwise treat,
the transactions contemplated by the Receivables Purchase
Agreement, the Transferring Affiliate Letter or the BMA Transfer
Agreement in any manner other than as a sale of Receivables by
the applicable Originating Entity to the Seller or Transferor,
as applicable. In addition, the Transferor shall, and shall
cause each Originating Entity to, disclose (in a footnote or
otherwise) in all of its respective financial statements
(including any such financial statements consolidated with any
other Persons’ financial statements) the existence and
nature of the transaction contemplated hereby, by the
Receivables Purchase Agreement, by the Transferring Affiliate
Letter and by the BMA Transfer Agreement, and the interest of
the Transferor (in the case of the Seller’s financial
statements), and the Agent, on behalf of the Investors, in the
Affected Assets.
(k) Separate Business. The Transferor shall at all
times (a) to the extent the Transferor’s office is
located in the offices of any Parent Group Member, pay fair
market rent for its executive office space located in the
36
offices of such Parent Group Member, (b) have at all times
at least one member of its board of directors which is not and
has never been an employee, officer or director of any Parent
Group Member or of any major creditor of any Parent Group Member
and is a person who is and has experience with asset
securitization, (c) maintain the Transferor’s books,
financial statements, accounting records and other corporate
documents and records separate from those of any Parent Group
Member or any other entity, (d) not commingle the
Transferor’s assets with those of any Parent Group Member
or any other entity, (e) act solely in its corporate name
and through its own authorized officers and agents,
(f) make investments directly or by brokers engaged and
paid by the Transferor its agents (provided that if any such
agent is an Affiliate of the Transferor it shall be compensated
at a fair market rate for its services), (g) separately
manage the Transferor’s liabilities from those of the
Parent Group and pay its own liabilities, including all
administrative expenses, from its own separate assets, except
that the Seller may pay the organizational expenses of the
Transferor, and (h) pay from the Transferor’s assets
all obligations and indebtedness of any kind incurred by the
Transferor. The Transferor shall abide by all corporate
formalities, including the maintenance of current minute books,
and the Transferor shall cause its financial statements to be
prepared in accordance with GAAP in a manner that indicates the
separate existence of the Transferor and its assets and
liabilities. The Transferor shall (i) pay all its
liabilities, (ii) not assume the liabilities of any Parent
Group Member, (iii) not lend funds or extend credit to any
Parent Group Member except pursuant to the Receivables Purchase
Agreement in connection with the purchase of Receivables
thereunder and (iv) not guarantee the liabilities of any
Parent Group Member. The officers and directors of the
Transferor (as appropriate) shall make decisions with respect to
the business and daily operations of the Transferor independent
of and not indicated by any controlling entity. The Transferor
shall not engage in any business not permitted by its
Certificate of Incorporation as in effect on the Closing Date.
The Transferor shall, in addition to the foregoing, take such
other actions as are necessary on its part to ensure that the
facts and assumptions set forth in the opinions issued by Arent
Fox LLP, as counsel for the Transferor, in connection with the
closing or initial Transfer under this Agreement and relating to
“non-consolidation” issues and “true sale”
issues, and in the certificates accompanying such opinions,
remain true and correct in all material respects at all times.
(l) Corporate Documents. The Transferor shall only
amend, alter, change or repeal any provision of the Third,
Fifth, Seventh, Tenth, Eleventh or Twelfth Article of its
Certificate of Incorporation with the prior written consent of
each Administrative Agent.
(m) Payment to the Originating Entities. With
respect to any Receivable purchased by the Transferor from the
Seller, such sale shall be effected under, and in strict
compliance with the terms of, the Receivables Purchase
Agreement, including, without limitation, the terms relating to
the amount and timing of payments to be made to the Seller by
the Transferor in respect of the purchase price for such
Receivable. With respect to any Receivable purchased by the
Seller from any Transferring Affiliate, the Transferor shall
cause such sale to be effected under, and in strict compliance
with the terms of, the Transferring Affiliate Letter and the BMA
Transfer Agreement, as applicable, including, without
limitation, the terms relating to the amount and timing of
payments to be made to each Transferring Affiliate in respect of
the purchase price for such Receivable.
(n) Performance and Enforcement of the Receivables
Purchase Agreement, etc. The Transferor shall timely perform
the obligations required to be performed by the Transferor, and
shall vigorously enforce the rights and remedies accorded to the
Transferor, under the Receivables Purchase Agreement. The
Transferor shall cause the Seller to timely perform the
obligations required to be performed by the Seller, and shall
cause the Seller to vigorously enforce the rights and remedies
accorded to the Seller, under each of the Transferring Affiliate
Letter and the BMA Transfer Agreement. The Transferor shall take
all actions to perfect and enforce its rights and interests (and
the rights and interests of the Agent, each Administrative Agent
and each of the Investors, as assignees of the Transferor) under
the Receivables Purchase Agreement as any Administrative Agent
may from time to time reasonably request, including, without
limitation, making claims to which it may be entitled under any
indemnity, reimbursement or similar provision contained in the
Receivables Purchase Agreement. The Transferor shall cause the
Seller to take all actions to perfect and enforce the
Seller’s rights and interests (and the rights and interests
of the Transferor, the Agent, the Administrative Agent and each
of the Investors, as assignees of the Seller) under the
Transferring Affiliate Letter or the BMA Transfer Agreement as
any Administrative Agent may from time to time reasonably
request, including, without limitation, making claims to which
it may be entitled under any indemnity, reimbursement or similar
provision contained in the Transferring Affiliate Letter or the
BMA Transfer Agreement.
Section 5.2. Negative
Covenants of the Transferor. At all times from the date
hereof to the later to occur of (i) the Termination Date or
(ii) the date on which the Net Investment has been reduced
to zero, all accrued Discount
37
and Servicing Fees shall have been paid in full and all other
Aggregate Unpaids shall have been paid in full, in cash, unless
each Administrative Agent shall otherwise consent in writing:
(a) No Sales, Liens, Etc. Except as otherwise
provided herein and in the Receivables Purchase Agreement, the
Transferor will not, and will not permit any Originating Entity
to, sell, assign (by operation of law or otherwise) or otherwise
dispose of, or create or suffer to exist any Adverse Claim upon
(or the filing of any financing statement) or with respect to
(x) any of the Affected Assets, (y) any inventory or
goods, the sale of which may give rise to a Receivable or any
Receivable or related Contract, or (z) any Special Account,
any Intermediate Concentration Account or the Concentration
Account or any other account to which any Collections of any
Receivable are sent, or assign any right to receive income in
respect thereof.
(b) No Extension or Amendment of Receivables. Except
as otherwise permitted in Section 6.2 hereof, the
Transferor will not, and will not permit any Originating Entity
to, extend, amend or otherwise modify the terms of any
Receivable, or amend, modify or waive any term or condition of
any Contract related thereto.
(c) No Change in Business or Credit and Collection
Policy. The Transferor will not, and will not permit any
Originating Entity to, make any change in the character of its
business or in the Credit and Collection Policy, which change
would, in either case, impair the collectibility of any
Receivable or otherwise have a Material Adverse Effect.
(d) No Mergers, Etc. The Transferor will not, and
will not permit any Originating Entity to, merge with or into or
consolidate with or into, or convey, transfer, lease or
otherwise dispose of (whether in one transaction or in a series
of transactions), all or substantially all of its assets
(whether now owned or hereafter acquired and except as
contemplated in the Transaction Documents) to any Person, except
that (i) any Transferring Affiliate may merge or
consolidate with any other Transferring Affiliate and
(ii) the Seller may merge or consolidate with any other
Person if, but only if, (x) immediately after giving effect
to such merger or consolidation, no Termination Event or
Potential Termination Event would exist and (y) if the
Seller is not the surviving corporation, each Administrative
Agent shall have received a written agreement, in form and
substance satisfactory to such Administrative Agent, executed by
the Person resulting from such merger or consolidation, under
which agreement such Person shall become the Seller and
Collection Agent, and shall assume the duties, obligations and
liabilities of the Seller, under the Receivables Purchase
Agreement, this Agreement (in its capacity as Collection Agent
hereunder), the Special Account Letters and each other
Transaction Document to which the Seller is party (whether in
its individual capacity or as Collection Agent), together with
the documents relating to the Seller of the kind delivered by or
on behalf of the Seller pursuant to Section 3.1.
(e) Change in Payment Instructions to Obligors, Special
Account Banks, Designated Account Agents and Concentration
Account. The Transferor will not, and will not permit any
Originating Entity to:
(i) add or terminate any bank as a Special Account Bank
from those listed in Exhibit C hereto, or make any change
in its instructions to Obligors regarding payments to be made to
any Special Account Bank; provided that the Transferor
may permit the (A) addition of any bank as a Special
Account Bank for purposes of this Agreement at any time
following delivery to each Administrative Agent of written
notice of such addition and a Special Account Letter duly
executed by such bank, and (B) termination of any Special
Account Bank at any time following delivery to each
Administrative Agent of written notice of such termination and
evidence satisfactory to each Administrative Agent that the
affected Obligors shall have been instructed to remit all
subsequent Collections to another Special Account; or
(ii) add, terminate or change the Concentration Account, or
any bank as the Concentration Account Bank, from that listed in
Exhibit C hereto, or make any change in the instructions
contained in any Special Account Letter or any change in the
instructions to the Concentration Account Bank; provided,
however, that the Transferor may terminate the then
existing Concentration Account Bank and appoint a new
Concentration Account Bank if, prior to such termination and
appointment, each Administrative Agent shall receive
(i) ten Business Days’ prior notice of such
termination and appointment and (ii) prior to the effective
date of such termination and appointment, (x) for each
Special Account where the Special Account Bank was previously
remitting Collections directly to the Concentration Account, an
executed copy of a Special Account Letter (executed by the
applicable Originating Entity and the applicable Special Account
Bank) instructing such Special Account Bank to transfer to the
new Concentration Account or an Intermediate Concentration
Account prior to the close of business on each banking day all
Collections on deposit during such banking day in such Special
Account; (y) for each Intermediate Concentration Account,
an executed amendment to the applicable Intermediate
Concentration Account Agreement (executed by the Transferor and
the applicable Intermediate Concentration Account Bank)
instructing such Intermediate Concentration Account Bank to
transfer to the new Concentration Account
38
prior to the close of business on each banking day all
Collections on deposit during such banking day in such
Intermediate Concentration Account, and (z) a copy of a
Concentration Account Agreement executed by the new
Concentration Account Bank and the Transferor; or
(iii) add or terminate any Person as a Designated Account
Agent from those listed in Exhibit C hereto, or make any
change in its instructions to such Designated Account Agent
regarding the handling of the Collections in the applicable
Special Account; provided that the Transferor may permit
the (A) addition of any Person that satisfies the
requirements set forth herein of a “Designated Account
Agent” as a Designated Account Agent for purposes of this
Agreement at any time following delivery to each Administrative
Agent of written notice of such addition and an Account Agent
Agreement duly executed by such Person, and (B) termination
of any Designated Account Agent at any time following delivery
to each Administrative Agent of written notice of such
termination and evidence satisfactory to each Administrative
Agent that either an Originating Entity or a new Designated
Account Agent shall have been added in accordance with the terms
of this Agreement to succeed such terminated Designated Account
Agent in respect of the applicable Special Account or the
affected Obligors shall have been instructed to remit all
subsequent Collections to another Special Account; or
(iv) add, terminate or change any Intermediate
Concentration Account, or any bank as an Intermediate
Concentration Account Bank, or make any change in the
instructions to any Intermediate Concentration Account Bank;
provided, however, that the Transferor may
terminate any then existing Intermediate Concentration Account
Bank or appoint a new Intermediate Concentration Account Bank
if, prior to such termination or appointment, each
Administrative Agent shall receive (i) ten Business
Days’ prior notice of such termination or appointment and
(ii) prior to the effective date of such termination or
appointment, (x) executed copies of Special Account Letters
(in each case, executed by the applicable Originating Entity and
the applicable Special Account Bank with which the Intermediate
Concentration Account that is being terminated or added was or
is to be maintained) instructing the Special Account Bank to
transfer to the new Intermediate Concentration Account at such
Special Account Bank or directly to the Concentration Account,
in either case prior to the close of business on each banking
day, all Collections on deposit during such banking day in the
Special Accounts at such Special Account Bank, and (y) in
the case of the addition of a new Intermediate Concentration
Account, a copy of an Intermediate Concentration Account
Agreement executed by the new Intermediate Concentration Account
Bank and the Transferor; and provided, further,
that the Transferor may change its instructions to any
Intermediate Concentration Account Bank as and to the extent
required pursuant to clause (ii) above in connection with
the establishment of any new Concentration Account.
(f) Deposits to Special Accounts and the Concentration
Account. The Transferor will not, and will not permit any of
the Originating Entities or Designated Account Agents to,
deposit or otherwise credit, or cause or permit to be so
deposited or credited, to any Special Account, any Intermediate
Concentration Account or the Concentration Account cash or cash
proceeds other than Collections of Receivables.
(g) Change of Name, Etc. The Transferor will not,
and will not permit any Originating Entity to, change its name,
identity or structure or the location of its chief executive
office or jurisdiction of organization, unless at least
10 days prior to the effective date of any such change the
Transferor delivers to each Administrative Agent (i) such
documents, instruments or agreements, executed by the Transferor
and/or the
affected Originating Entities, as are necessary to reflect such
change and to continue the perfection of the Agent’s
ownership interests or security interest in the Affected Assets
and (ii) new or revised Special Account Letters executed by
the Special Account Banks which reflect such change and enable
the Agent to continue to exercise its rights contained in
Section 2.8 hereof. The Transferor will not, and will not
permit any Originating Entity to, change its jurisdiction of
organization to a jurisdiction other than a State within the
United States.
(h) Amendment to Receivables Purchase Agreement,
Etc.. The Transferor will not, and will not permit any
Originating Entity to, (i) amend, modify, or supplement the
Receivables Purchase Agreement, the Transferring Affiliate
Letter, the BMA Transfer Agreement or any instrument, document
or agreement executed in connection therewith (collectively the
“Initial Transfer Documents”), (ii) terminate or
cancel any Initial Transfer Document, (iii) issue any
consent or directive under any Initial Transfer Document,
(iv) undertake any enforcement proceeding in respect of any
of the Initial Transfer Documents, or (v) waive, extend the
time for performance or grant any indulgence in respect of any
provision of any Initial Transfer Document, in each case except
with the prior written consent of the Agent and each
Administrative Agent; nor shall the Transferor take, or permit
any Originating Entity to take, any other action under any of
the Initial Transfer Documents that shall have a material
adverse affect on the Agent, any Administrative Agent or any
Investor or which is inconsistent with the terms of this
Agreement.
39
(i) Other Debt. Except as provided for herein, the
Transferor will not create, incur, assume or suffer to exist any
indebtedness whether current or funded, or any other liability
other than (i) indebtedness of the Transferor representing
fees, expenses and indemnities arising hereunder or under the
Receivables Purchase Agreement for the purchase price of the
Receivables under the Receivables Purchase Agreement, and
(ii) other indebtedness incurred in the ordinary course of
its business in an amount not to exceed $50,000 at any time
outstanding.
(j) ERISA Matters. The Transferor will not, and will
not permit any Originating Entity to, (i) engage or permit
any of its respective ERISA Affiliates to engage in any
prohibited transaction (as defined in Section 4975 of the
Code and Section 406 of ERISA) for which an exemption is
not available or has not previously been obtained from the
U.S. Department of Labor; (ii) permit to exist any
accumulated funding deficiency (as defined in
Section 302(a) of ERISA and Section 412(a) of the
Code) or funding deficiency with respect to any Benefit Plan
other than a Multiemployer Plan; (iii) fail to make any
payments to any Multiemployer Plan that the Transferor, such
Originating Entity or any ERISA Affiliate thereof is required to
make under the agreement relating to such Multiemployer Plan or
any law pertaining thereto; (iv) terminate any Benefit Plan
so as to result in any liability; or (v) permit to exist
any occurrence of any reportable event described in
Title IV of ERISA which represents a material risk of a
liability to the Transferor, such Originating Entity or any
ERISA Affiliate thereof under ERISA or the Code, if such
prohibited transactions, accumulated funding deficiencies,
payments, terminations and reportable events occurring within
any fiscal year of the Transferor, in the aggregate, involve a
payment of money or an incurrence of liability by the
Transferor, any Originating Entity or any ERISA Affiliate
thereof, in an amount in excess of $500,000.
Section 5.3. Affirmative
Covenants of the Collection Agent. At all times from
the date hereof to the later to occur of (i) the
Termination Date or (ii) the date on which the Net
Investment has been reduced to zero, all accrued Discount and
Servicing Fees shall have been paid in full and all other
Aggregate Unpaids shall have been paid in full, in cash, unless
each Administrative Agent shall otherwise consent in writing.
(a) Conduct of Business. The Collection Agent will
carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as it
is presently conducted and do all things necessary to remain
duly incorporated, validly existing and in good standing as a
domestic corporation in its jurisdiction of incorporation and
maintain all requisite authority to conduct its business in each
jurisdiction in which its business is conducted.
(b) Compliance with Laws. The Collection Agent will
comply with all laws, rules and regulations (including, without
limitation, all CHAMPUS/VA Regulations, Medicaid Regulations and
Medicare Regulations), and all orders, writs, judgments,
injunctions, decrees or awards to which it or its respective
properties may be subject.
(c) Furnishing of Information and Inspection of
Records. The Collection Agent will furnish to each
Administrative Agent from time to time such information with
respect to the Receivables as such Administrative Agent may
reasonably request, including, without limitation, listings
identifying the Obligor and the Outstanding Balance for each
Receivable. The Collection Agent will, at any time and from time
to time during regular business hours permit any Administrative
Agent, or its agents or representatives, (i) to examine and
make copies of and take abstracts from all Records and
(ii) to visit the offices and properties of the Collection
Agent for the purpose of examining such records, and to discuss
matters relating to Receivables or the Transferor’s, the
Originating Entities’ or the Collection Agent’s
performance hereunder and under the other Transaction Documents
to which such Person is a party with any of the officers,
directors, employees or independent public accountants of the
Collection Agent having knowledge of such matters.
(d) Keeping of Records and Books of Account. The
Collection Agent will maintain and implement administrative and
operating procedures (including, without limitation, an ability
to recreate records evidencing Receivables in the event of the
destruction of the originals thereof), and keep and maintain,
all documents, books, records and other information reasonably
necessary or advisable for the collection of all Receivables
(including, without limitation, records adequate to permit the
daily identification of each new Receivable and all Collections
of and adjustments to each existing Receivable). The Collection
Agent will give each Administrative Agent notice of any material
change in the administrative and operating procedures of the
Collection Agent referred to in the previous sentence.
(e) Notice of Agent’s Interest. The Collection
Agent shall cause its master data processing records, computer
tapes, files and other documents or instruments provided to,
developed by or otherwise maintained by the Collection Agent in
connection with any Transfer or otherwise for purposes of the
transactions
40
contemplated in this Agreement to disclose conspicuously the
Transferor’s ownership of the Receivables and the
Agent’s interest therein.
(f) Credit and Collection Policies. The Collection
Agent will comply in all material respects with the Credit and
Collection Policy in regard to each Receivable and the related
Contract.
(g) Collections. The Collection Agent shall instruct
all Obligors to cause all Collections to be deposited directly
to a Special Account and shall take, or omit to take, all
actions in respect of Obligors, the Special Account Banks,
Intermediate Concentration Account Banks and the Concentration
Account Bank solely in a manner that is consistent with the
terms of this Agreement, including, without limitation,
Sections 2.8, 5.1(h), 5.2(e) and 5.2(f) hereof.
(h) Collections Received. The Collection Agent shall
segregate and hold in trust, and deposit, immediately, but in
any event not later than the day that occurs forty-eight
(48) hours thereafter (or, if such day is not a Business
Day, the next Business Day) after its receipt thereof, either to
the Intermediate Concentration Account or to the Concentration
Account all Collections received from time to time by the
Collection Agent.
Section 5.4. Negative
Covenants of the Collection Agent. At all times from
the date hereof to the later to occur of (i) the
Termination Date or (ii) the date on which the Net
Investment has been reduced to zero, all accrued Discount and
Servicing Fees shall have been paid in full and all other
Aggregate Unpaids shall have been paid in full, in cash, unless
each Administrative Agent shall otherwise consent in writing:
(a) No Extension or Amendment of Receivables. Except
as otherwise permitted in Section 6.2 hereof, the
Collection Agent will not extend, amend or otherwise modify the
terms of any Receivable, or amend, modify or waive any term or
condition of any Contract related thereto.
(b) No Change in Business or Credit and Collection
Policy. The Collection Agent will not make any change in the
character of its business or in the Credit and Collection
Policy, which change would, in either case, impair the
collectibility of any Receivable or otherwise have a Material
Adverse Effect.
(c) No Mergers, Etc. Except as otherwise permitted
under Section 5.2(d), the Collection Agent will not
(i) consolidate or merge with or into any other Person, or
(ii) sell, lease or transfer all or substantially all of
its assets to any other Person.
(d) Deposits to Accounts. The Collection Agent will
not deposit or otherwise credit, or cause or permit to be so
deposited or credited, to any Special Account or Concentration
Account cash or cash proceeds other than Collections of
Receivables.
ARTICLE VI
ADMINISTRATION
AND COLLECTION
Section 6.1. Appointment
of Collection Agent. The servicing, administering and
collection of the Receivables shall be conducted by such Person
(the “Collection Agent”) so designated from
time to time in accordance with this Section 6.1. Until the
Agent gives notice to the Transferor of the designation of a new
Collection Agent, NMC is hereby designated as, and hereby agrees
to perform the duties and obligations of, the Collection Agent
pursuant to the terms hereof. The Collection Agent may not
delegate any of its rights, duties or obligations hereunder, or
designate a substitute Collection Agent, without the prior
written consent of each Administrative Agent; provided
that the Collection Agent may from time to time delegate to any
Originating Entity such of its rights, duties and obligations
hereunder as relate to the servicing, administering and
collection of the Receivables originated by such Originating
Entity; provided further that (i) any such
delegation shall be terminated upon the replacement of the
Collection Agent hereunder and (ii) the Collection Agent
shall continue to remain solely liable for the performance of
the duties as Collection Agent hereunder notwithstanding any
such delegation hereunder. The Agent may, and upon the direction
of the Majority Investors the Agent shall, after the occurrence
of a Collection Agent Default or any other Termination Event
designate as Collection Agent any Person (including itself) to
succeed NMC or any successor Collection Agent, on the conditions
in each case that any such Person so designated shall agree to
perform the duties and obligations of the Collection Agent
pursuant to the terms hereof and such designation of such Person
is permitted by applicable law (including, without limitation,
applicable CHAMPUS/VA Regulations, Medicaid Regulations and
Medicare Regulations) or any order of a court of competent
jurisdiction. The Agent may notify any Obligor as to the
ownership interest therein that shall have been transferred to
the Transferor and, except as otherwise provided hereunder, as
to the Transferred Interest hereunder.
41
Section 6.2. Duties
of Collection Agent.
(a) The Collection Agent shall take or cause to be taken
all such action as may be necessary or advisable to collect each
Receivable from time to time, all in accordance with applicable
laws, rules and regulations (including, without limitation, all
CHAMPUS/VA Regulations, Medicaid Regulations and Medicare
Regulations), with reasonable care and diligence, and in
accordance with the Credit and Collection Policy. Each of the
Transferor, the Agent, the Administrative Agents and the
Investors hereby appoints as its agent the Collection Agent,
from time to time designated pursuant to Section 6.1
hereof, to enforce its respective rights and interests in and
under the Affected Assets. To the extent permitted by applicable
law, the Transferor hereby grants to any Collection Agent
appointed hereunder an irrevocable power of attorney to take any
and all steps in the Transferor’s
and/or any
Originating Entity’s name and on behalf of the Transferor
necessary or desirable, in the reasonable determination of the
Collection Agent, to collect all amounts due under any and all
Receivables, including, without limitation, endorsing the
Transferor’s
and/or any
Originating Entity’s name on checks and other instruments
representing Collections and enforcing such Receivables and the
related Contracts. The Transferor represents and warrants that
the foregoing power of attorney, in the case of any Originating
Entity, has been duly granted to the Transferor under the
Receivables Purchase Agreement and the Transferor is authorized
under the Receivables Purchase Agreement, to the extent
permitted by applicable law, to authorize the Collection Agent
hereunder to exercise such power. The Collection Agent shall set
aside for the account of the Transferor and the Agent (for the
benefit of the Investors) their respective allocable shares of
the Collections of Receivables in accordance with
Sections 2.5 and 2.6 hereof. The Collection Agent shall
segregate and deposit to each Administrative Agent’s
account such Administrative Agent’s allocable share of
Collections of Receivables when required pursuant to
Article II hereof. So long as no Termination Event shall
have occurred and be continuing, the Collection Agent may, in
accordance with the Credit and Collection Policy, extend the
maturity or adjust the Outstanding Balance of any Defaulted
Receivable as the Collection Agent may determine to be
appropriate to maximize Collections thereof; provided,
however, that such extension or adjustment shall not
alter the status of such Receivable as a Defaulted Receivable.
The Transferor shall deliver to the Collection Agent and the
Collection Agent shall hold in trust for the Transferor, and the
Agent, on behalf of the Investors, in accordance with their
respective interests, all Records which evidence or relate to
Receivables or Related Security. Notwithstanding anything to the
contrary contained herein, the Agent shall have the absolute and
unlimited right to direct the Collection Agent (whether the
Collection Agent is NMC or any other Person) to commence or
settle any legal action to enforce collection of any Receivable
or to foreclose upon or repossess any Related Security. The
Collection Agent shall not make the Agent, any Administrative
Agent or any of the Investors a party to any litigation without
the prior written consent of such Person.
(b) The Collection Agent shall, as soon as practicable
following receipt thereof, turn over to the Transferor any
collections of any indebtedness of any Person which is not on
account of a Receivable. If the Collection Agent is not NMC or
an Affiliate thereof, the Collection Agent, by giving three
Business Days’ prior written notice to the Agent, may
revise the percentage used to calculate the Servicing Fee so
long as the revised percentage will not result in a Servicing
Fee that exceeds 110% of the reasonable and appropriate out-of
pocket costs and expenses of such Collection Agent incurred in
connection with the performance of its obligations hereunder as
documented to the reasonable satisfaction of each Administrative
Agent, provided, however, that at any time after
the Percentage Factor equals or exceeds 98%, any compensation to
the Collection Agent in excess of the Servicing Fee initially
provided for herein shall be an obligation of the Transferor and
shall not be payable, in whole or in part, from the Collections
allocated to or for the benefit of any of the Investors
hereunder. The Collection Agent, if other than NMC, shall as
soon as practicable upon demand, deliver to the Transferor all
Records in its possession which evidence or relate to
indebtedness of an Obligor which is not a Receivable.
(c) On or before September 30 of each calendar year, the
Collection Agent shall cause a firm of independent public
accountants (who may also render other services to the
Collection Agent, the Transferor, the Seller or any Affiliates
of any of the foregoing), or such other Person as may be
approved by each Administrative Agent (any of the foregoing
being an “Auditor”), to furnish a report to each
Administrative Agent in accordance with the procedures set forth
on Exhibit T.
(d) Notwithstanding anything to the contrary contained in
this Article VI, the Collection Agent, if not the
Transferor or NMC, shall have no obligation to collect, enforce
or take any other action described in this Article VI with
respect to any indebtedness that is not included in the
Transferred Interest other than to deliver to the Transferor the
collections and documents with respect to any such indebtedness
as described in Section 6.2 (b) hereof.
42
Section 6.3. Right
After Designation of New Collection Agent. At any time
following the designation of a Collection Agent (other than the
Transferor, the Seller or any Affiliate of the Transferor or the
Seller) pursuant to Section 6.1 hereof:
(i) The Agent may direct that payment of all amounts
payable under any Receivable be made directly to the Agent or
its designee.
(ii) The Transferor shall, at the Agent’s request and
at the Transferor’s expense, give notice of the
Agent’s, the Transferor’s
and/or the
Bank Investors’ ownership of Receivables to each Obligor
and direct that payments be made directly to the Agent or its
designee.
(iii) The Transferor shall, at the Agent’s request,
(A) assemble all of the Records, and shall make the same
available to the Agent or its designee at a place selected by
the Agent or its designee, and (B) segregate all cash,
checks and other instruments received by it from time to time
constituting Collections of Receivables in a manner acceptable
to the Agent and shall, promptly upon receipt, remit all such
cash, checks and instruments, duly endorsed or with duly
executed instruments of transfer, to the Agent or its designee.
(iv) The Transferor hereby authorizes the Agent to take, to
the extent permitted by applicable law, any and all steps in the
Transferor’s or any Originating Entity’s name (which
power, in the case of each Originating Entity, the Transferor is
authorized to grant pursuant to authority granted to the
Transferor under the Receivables Purchase Agreement) and on
behalf of the Transferor and such Originating Entity necessary
or desirable, in the determination of the Agent, to collect all
amounts due under any and all Receivables, including, without
limitation, endorsing the Transferor’s or such Originating
Entity’s name on checks and other instruments representing
Collections and enforcing such Receivables and the related
Contracts.
Notwithstanding the foregoing clauses (i), (ii), (iii) and
(iv), the Agent shall not at any time direct, or cause the
Transferor or any Originating Entity to direct, Obligors of
Receivables or Related Security payable under the Medicare or
Medicaid program to make payment of amounts due or to become due
to the Transferor or any Originating Entity in respect of such
Receivables or Related Security directly to either the
Intermediate Concentration Account or the Concentration Account
or to the Agent or its designee, except for any such
payment in respect of such Receivables or Related Security or
any assignment thereof that is established by, or made pursuant
to, the order of a court of competent jurisdiction.
Section 6.4. Collection
Agent Default. The occurrence of any one or more of the
following events shall constitute a Collection Agent Default:
(a) (i) the Collection Agent or, to the extent that
the Transferor, the Seller or any Affiliate of the Transferor or
the Seller is then acting as Collection Agent, the Transferor,
the Seller or such Affiliate, as applicable, shall fail to
observe or perform any term, covenant or agreement to be
observed or performed (A) under Section 5.3(d), 5.3(g)
or 5.3(h) or Section 5.4, or (B) under
Section 5.3 (other than subsection (d), (g) or
(h) thereof) and such failure shall continue for five
(5) days, or (ii) the Collection Agent or, to the
extent that the Transferor, the Seller or any Affiliate of the
Transferor, or the Seller is then acting as Collection Agent,
the Transferor, the Seller or such Affiliate, as applicable,
shall fail to observe or perform any term, covenant or agreement
hereunder (other than as referred to in clause (i) or
(iii) of this Section 6.4(a)) or under any of the
other Transaction Documents to which such Person is a party or
by which such Person is bound, and such failure shall remain
unremedied for ten (10) days, or (iii) the Collection
Agent or, the extent that the Transferor, the Seller or any
Affiliate of the Transferor, or the Seller is then acting as
Collection Agent, the Transferor, the Seller or such Affiliate,
as applicable, shall fail to make any payment or deposit
required to be made by it hereunder when due or the Collection
Agent shall fail to observe or perform any term, covenant or
agreement on the Collection Agent’s part to be performed
under Section 2.8(b) hereof; or
(b) any representation, warranty, certification or
statement made by the Collection Agent or the Transferor, the
Seller or any Affiliate of the Transferor or the Seller (in the
event that the Transferor, the Seller or such Affiliate is then
acting as the Collection Agent) in this Agreement, the
Receivables Purchase Agreement, the Transferring Affiliate
Letter, the BMA Transfer Agreement or in any of the other
Transaction Documents or in any certificate or report delivered
by it pursuant to any of the foregoing shall prove to have been
incorrect in any material respect when made or deemed
made; or
(c) failure of the Collection Agent or any of its
Subsidiaries, FME KGaA, or FMCH to pay when due any amounts due
under any agreement under which any Indebtedness greater that
$50,000,000 is governed; or the default by the Collection Agent
or any of its Subsidiaries, FME KGaA or FMCH in the performance
of any term, provision of condition contained in any agreement
under which any Indebtedness greater than $50,000,000 was
created or is governed, regardless of whether such event is an
“event of default” or “default”
43
under any such agreement; or any Indebtedness of the Collection
Agent or any of its Subsidiaries, FME KGaA or FMCH greater than
$50,000,000 shall be declared to be due and payable or required
to be prepaid (other than by a regularly scheduled payment and
other than in the case of an instrument stated to be payable on
demand) prior to the scheduled date of maturity thereof; or
(d) any Event of Bankruptcy shall occur with respect to the
Collection Agent or any of its Subsidiaries; provided
that in the case of any immaterial Subsidiary of the Collection
Agent, if an Event of Bankruptcy shall have occurred by reason
of any institution of an involuntary proceeding against such
Subsidiary, such Event of Bankruptcy shall not constitute a
Collection Agent Default unless such proceeding shall have
remained undismissed or unstayed for a period of
60 days; or
(e) there shall have occurred any material adverse change
in the operations of the Collection Agent since the end of the
last fiscal year ending prior to the date of its appointment as
Collection Agent hereunder or any other event shall have
occurred which, in the commercially reasonably judgment of the
Agent, materially and adversely affects the Collection
Agent’s ability to either collect the Receivables or to
perform under this Agreement.
Section 6.5. Responsibilities
of the Transferor. Anything herein to the contrary
notwithstanding, the Transferor shall,
and/or shall
cause each Originating Entity to, (i) perform all of each
Originating Entity’s obligations under the Contracts
related to the Receivables to the same extent as if interests in
such Receivables had not been sold hereunder and under the
Transferring Affiliate Letter, the BMA Transfer Agreement
and/or the
Receivables Purchase Agreement, as applicable, and the exercise
by the Agent, any Administrative Agent and the Investors of
their rights hereunder and under the Transferring Affiliate
Letter, the BMA Transfer Agreement and the Receivables Purchase
Agreement shall not relieve the Transferor or the Seller from
such obligations and (ii) pay when due any taxes, including
without limitation, any sales taxes payable in connection with
the Receivables and their creation and satisfaction. Neither the
Agent nor any of the Investors or the Administrative Agents
shall have any obligation or liability with respect to any
Receivable or related Contracts, nor shall it be obligated to
perform any of the obligations of the Seller thereunder.
ARTICLE VII
TERMINATION
EVENTS
Section 7.1. Termination
Events. The occurrence of any one or more of the
following events shall constitute a Termination Event:
(a) the Transferor or the Collection Agent shall fail to
make any payment or deposit to be made by it hereunder or under
the Receivables Purchase Agreement when due hereunder or
thereunder; or
(b) any representation, warranty, certification or
statement made or deemed made by the Transferor in this
Agreement, by FME KGaA or FMCH under the Parent Agreement, or by
the Transferor, FME KGaA, FMCH or any other Parent Group Member
in any other Transaction Document to which it is a party or in
any other document certificate or other writing delivered
pursuant hereto or thereto, shall prove to have been incorrect
in any material respect when made or deemed made; or
(c) the Transferor or the Collection Agent shall default in
the performance of any payment or undertaking (other than those
covered by clause (a) above) to be performed or observed
under:
(i) Section 5.1(a)(iv); provided that, in the
case of any failure to provide any such notice relating to a
Potential Termination Event that shall have ceased to exist
prior to the date such notice was required to have been given
under Section 5.1(a)(iv), the failure to give such notice shall
not constitute a Termination Event unless a senior officer of
the Seller or the Transferor (including, in each case, the
Treasurer, any Assistant Treasurer, General Counsel or any
assistant or associate general counsel of such Person) shall
have known of the occurrence of such Potential Termination Event
during such period; or
(ii) any of Sections 5.1(a)(v), 5.1 (a)(x), 5.1
(a)(ix), 5.1(b)(i), 5.1(f), 5.1(g), 5.1(h), 5.1(i), 5.1(k),
5.1(l), 5.2(a), 5.2(c), 5.2(d), 5.2(e), 5.2(f), 5.2(g), 5.2(h),
5.2(i) or 6.3; or
(iii) Section 5.1(b)(ii), and such default shall
continue for 2 Business Days; or
(iv) any other provision hereof and such default in the
case of this clause (iv) shall continue for ten
(10) days;
(d) (i) failure of the Transferor to pay when due any
amounts due under any agreement relating to Indebtedness to
which it is a party; or the default by the Transferor in the
performance of any term, provision or
44
condition contained in any agreement relating to Indebtedness to
which it is a party regardless of whether such event is an
“event of default” or “default” under any
such agreement; or any Indebtedness owing by the Transferor
shall be declared to be due and payable or required to be
prepaid (other than by a regularly scheduled payment) prior to
the date of maturity thereof; or (ii) failure of the
Seller, FMCH, FME KGaA or any Transferring Affiliate to pay when
due any amounts due under any agreement to which any such Person
is a party and under which any Indebtedness greater than
$50,000,000 is governed; or the default by the Seller, FMCH, FME
KGaA or any Transferring Affiliate in the performance of any
term, provision or condition contained in any agreement to which
any such Person is a party and under which any Indebtedness
owing by the Seller, FMCH, FME KGaA or any Transferring
Affiliate greater than $50,000,000 was created or is governed,
regardless of whether such event is an “event of
default” or “default” under any such agreement;
or any Indebtedness owing by the Seller, FMCH, FME KGaA or any
Transferring Affiliate greater than $50,000,000 shall be
declared to be due and payable or required to be prepaid (other
than by a regularly scheduled payment and other than in the case
of an instrument stated to be payable on demand) prior to the
date of maturity thereof; or
(e) any Event of Bankruptcy shall occur with respect to the
Transferor, any Originating Entity, FME KGaA, FMCH or NMC;
provided that, in the case of any Event of Bankruptcy
relating to any Transferring Affiliate, such Event of Bankruptcy
shall not constitute a Termination Event hereunder if at such
time the Percentage Factor does not exceed the Maximum
Percentage Factor after reducing the Net Receivables Balance by
an amount equal to the aggregate Outstanding Balance of all
Receivables otherwise included in the calculation of Net
Receivables Balance which either (i) have been originated
by such Transferring Affiliate or (ii) are owing from any
Obligor that shall have been directed to remit payments thereon
to a Special Account that is a Special Account to which Obligors
in respect of the Transferring Affiliate that is the subject of
such Event of Bankruptcy shall have been directed to remit
payments; or
(f) the Agent, on behalf of the Investors, shall, for any
reason, fail or cease to have a valid and perfected first
priority ownership or security interest in the Affected Assets
free and clear of any Adverse Claims; or the Transferor shall,
for any reason, fail or cease to have all right, title and
interest in and to all Receivables, Related Security and
Collections, free and clear of any Adverse Claim, subject only
to the interests therein of the Agent, on behalf of the
Investors; or
(g) a Collection Agent Default shall have occurred; or
(h) the Transferring Affiliate Letter, the BMA Transfer
Agreement, the Receivables Purchase Agreement or any other
Transaction Document shall have terminated; or any material
provision thereof shall cease for any reason to be valid and
binding on any party thereto or any party shall so state in
writing; or any party to any Transaction Document (other than
the Agent, any Administrative Agent or any Investor) shall fail
to perform any material term, provision or condition contained
in any Transaction Document on its part to be performed or a
default shall otherwise occur thereunder; or
(i) any of FMCH, NMC, the Transferor or the Seller shall
enter into any transaction or merger whereby it is not the
surviving entity; or
(j) there shall have occurred any material adverse change
in the operations of any of FMCH, NMC, the Transferor or the
Seller since December 31, 2002 or any other Material
Adverse Effect shall have occurred; or
(k) any Liquidity Provider or Credit Support Provider shall
have given notice that an event of default has occurred and is
continuing under any of its respective agreements with a Conduit
Investor; or
(l) the Commercial Paper issued by a Conduit Investor or
its Related Issuer shall not be rated at least
“A-2”
by Standard & Poor’s and at least
“P-2”
by Moody’s, unless any rating of such Commercial Paper
shall be lower than such level solely as a result of the
correspondingly lower rating of the Credit Support Provider for
such Conduit Investor; or
(m) (i) the Percentage Factor exceeds the Maximum
Percentage Factor unless the Transferor reduces the Net
Investment or increases the balance of the Affected Assets on
the next Business Day so as to reduce the Percentage Factor to
less than or equal to the Maximum Percentage Factor;
(ii) the Percentage Factor equals or exceeds 100.0% at any
time unless the Transferor reduces the Net Investment or
increases the balance of the Affected Assets on the next
Business Day so as to reduce the Percentage Factor to less than
or equal to 100%; or (iii) the portion of the Net
Investment held by the Investors in any Related Group plus, in
the case where any portion of such Net Investment is held by a
Conduit Investor, the Interest Component of all outstanding
Related Commercial Paper with respect to such Conduit Investor,
shall exceed the applicable Related Group Limit at any
time; or
45
(n) the Dilution Ratio for any month exceeds 10%; or
(o) the Loss-to-Liquidation Ratio for any month exceeds
8%; or
(p) the Default Ratio for any month exceeds 9%; or
(q) a default shall occur under the Parent Agreement; or
the Parent Agreement shall for any reason terminate; or any
material provision thereof shall cease to be valid and binding
on any party thereto or any party thereto shall so state in
writing; or
(r) (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 FME KGaA Credit Facility and put/call
agreements, forward agreements or other similar arrangements
among FME KGaA 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 FME
KGaA may own directly or indirectly stock that is not Voting
Stock in subsidiaries of FMCH; or (iii) FME KGaA shall
cease to own, directly or indirectly, free and clear of any
Adverse Claim (other than a pledge made pursuant to the FME KGaA
Credit Facility and put/call agreements, forward agreements or
other similar arrangements among FME KGaA 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
(s) both (i) FMCH’s long-term public senior debt
securities shall be rated lower than B+ by Standard &
Poor’s or B1 by Moody’s, or if neither
Standard & Poor’s nor Moody’s shall rate
such securities, FMCH’s long-term senior debt shall have a
deemed rating of lower than B+ as determined by the Agent using
its standard bond rating methodology, and (ii) FME
KGaA’s long-term public senior debt securities shall be
rated lower than B+ by Standard & Poor’s or B1 by
Moody’s, or if neither Standard & Poor’s nor
Moody’s shall rate such securities, FME KGaA’s
long-term senior debt shall have a deemed rating of lower than
B+ as determined by the Agent using its standard bond rating
methodology; or
(t) the Administrative Agents shall not have received, by
no later than November 21, 2003 (i) a final agreed
upon procedures report from KPMG substantially in the form
attached as Exhibit T with results satisfactory to each
Administrative Agent and (ii) a final “no material
weakness” report from KPMG substantially in the form
attached as Exhibit U with results satisfactory to each
Administrative Agent.
Section 7.2. Termination. (a) Upon
the occurrence of any Termination Event, the Agent may, and at
the direction of any Administrative Agent or the Majority
Investors shall, by notice to the Transferor and the Collection
Agent declare the Termination Date to have occurred;
provided, however, that in the case of any event
described in Section 7.1(e), 7.1(f), 7.1(m)(ii),
7.1(m)(iii) or 7.1(r) above, the Termination Date shall be
deemed to have occurred automatically upon the occurrence of
such event. Upon any such declaration or automatic occurrence,
the Agent shall have, in addition to all other rights and
remedies under this Agreement or otherwise, all other rights and
remedies provided under the UCC of the applicable jurisdiction
and other applicable laws, all of which rights shall be
cumulative.
(b) At all times after the declaration or automatic
occurrence of the Termination Date pursuant to
Section 7.2(a), the Base Rate plus 2.00% shall be the
Tranche Rate applicable to the Net Investment for all
existing and future Tranches.
ARTICLE VIII
INDEMNIFICATION;
EXPENSES; RELATED MATTERS
Section 8.1. Indemnities
by the Transferor. Without limiting any other rights
which the Agent, the Administrative Agents or the Investors may
have hereunder or under applicable law, the Transferor hereby
agrees to indemnify the Investors, the Agent, the Administrative
Agents, the Collateral Agents, the Liquidity Providers and the
Credit Support Providers and their respective successors and
permitted assigns and their respective officers, directors and
employees (collectively, “Indemnified Parties”)
from and against any and all damages, losses, claims,
liabilities, costs and expenses, including, without limitation,
reasonable attorneys’ fees (which such attorneys may be
employees of a Liquidity Provider, a Credit Support Provider,
the Agent, an Administrative Agent or a Collateral Agent, as
applicable) and disbursements (all of the foregoing being
collectively referred to as “Indemnified
Amounts”) awarded against or incurred by any of them in
any action or proceeding between the Transferor or any Parent
Group Member (including any Parent Group Member, in its capacity
as the Collection Agent) and any of the Indemnified Parties or
between any of the
46
Indemnified Parties and any third party or otherwise arising out
of or as a result of this Agreement, the other Transaction
Documents, the ownership or maintenance, either directly or
indirectly, by the Agent or any Investor of the Transferred
Interest or any of the other transactions contemplated hereby or
thereby, excluding, however, (i) Indemnified Amounts to the
extent resulting from gross negligence or willful misconduct on
the part of an Indemnified Party or (ii) recourse (except
as otherwise specifically provided in this Agreement) for
uncollectible Receivables. Without limiting the generality of
the foregoing, the Transferor shall indemnify each Indemnified
Party for Indemnified Amounts relating to or resulting from:
(i) any representation or warranty made by any Parent Group
Member (including any Parent Group Member, in its capacity as
the Collection Agent) or any officers of any Parent Group Member
(including any Parent Group Member, in its capacity as the
Collection Agent) under or in connection with this Agreement,
the Receivable Purchase Agreement, the Parent Agreement, the
Transferring Affiliate Letter, the BMA Transfer Agreement, any
of the other Transaction Documents, any Investor Report or any
other information or report delivered by any Parent Group Member
pursuant to or in connection with any Transaction Document,
which shall have been false or incorrect in any material respect
when made or deemed made;
(ii) the failure by any Parent Group Member (including any
Parent Group Member, in its capacity as the Collection Agent) to
comply with any applicable law, rule or regulation (including,
without limitation, any CHAMPUS/VA Regulation, any Medicaid
Regulation or any Medicare Regulation), including with respect
to any Receivable or the related Contract, or the nonconformity
of any Receivable or the related Contract with any such
applicable law, rule or regulation;
(iii) the failure (x) to vest and maintain vested in
the Agent, on behalf of the Investors, an undivided first
priority, perfected percentage ownership interest (to the extent
of the Transferred Interest) in the Affected Assets free and
clear of any Adverse Claim or (y) to create or maintain a
valid and perfected first priority security interest in favor of
the Agent, for the benefit of the Investors, in the Affected
Assets as contemplated pursuant to Section 10.11, free and
clear of any Adverse Claim;
(iv) the failure to file, or any delay in filing, financing
statements, continuation statements, or other similar
instruments or documents under the UCC of any applicable
jurisdiction or other applicable laws with respect to any of the
Affected Assets;
(v) any dispute, claim, offset or defense (other than
discharge in bankruptcy) of the Obligor to the payment of any
Receivable (including, without limitation, a defense based on
such Receivable or the related Contract not being the legal,
valid and binding obligation of such Obligor enforceable against
it in accordance with its terms), or any other claim resulting
from the sale of merchandise or services related to such
Receivable or the furnishing or failure to furnish such
merchandise or services;
(vi) any failure of the Collection Agent to perform its
duties or obligations in accordance with the provisions
hereof; or
(vii) any products liability claim or personal injury or
property damage suit or other similar or related claim or action
of whatever sort arising out of or in connection with
merchandise or services which are the subject of any Receivable;
(viii) the transfer of an ownership interest in any
Receivable other than an Eligible Receivable;
(ix) the failure by any Parent Group Member (individually
or as Collection Agent) to comply with any term, provision or
covenant contained in this Agreement or any of the other
Transaction Documents to which it is a party or to perform any
of its respective duties under the Contracts;
(x) the Percentage Factor exceeding the Maximum Percentage
Factor at any time;
(xi) the failure of any Originating Entity to pay when due
any taxes, including without limitation, sales, excise or
personal property taxes payable in connection with any of the
Receivables;
(xii) any repayment by any Indemnified Party of any amount
previously distributed in reduction on Net Investment which such
Indemnified Party believes in good faith is required to be made;
(xiii) the commingling by the Transferor, any Originating
Entity or the Collection Agent of Collections of Receivables at
any time with other funds;
(xiv) any investigation, litigation or proceeding
instituted by or against a Person other than such Indemnified
Party related to this Agreement, any of the other Transaction
Documents, the use of proceeds of Transfers by the Transferor or
any Originating Entity, the ownership of Transferred Interests,
or any Receivable, Related Security or Contract;
47
(xv) the failure of any Special Account Bank, Designated
Account Agent, Intermediate Concentration Account Bank or the
Concentration Account Bank to remit any amounts held by it
pursuant to the instructions set forth in the applicable Special
Account Letter, Intermediate Concentration Account Agreement or
Concentration Account Agreement or any instruction of the
Collection Agent, the Transferor, any Originating Entity or the
Agent (to the extent such Person is entitled to give such
instructions in accordance with the terms hereof and of any
applicable Special Account Letter, Intermediate Concentration
Account Agreement or Concentration Account Agreement) whether by
reason of the exercise of set-off rights or otherwise;
(xvi) any inability to obtain any judgment in or utilize
the court or other adjudication system of, any state in which an
Obligor may be located as a result of the failure of the
Transferor or the Seller to qualify to do business or file any
notice of business activity report or any similar report;
(xvii) any failure of the Transferor to give reasonably
equivalent value to the Seller in consideration of the purchase
by the Transferor from the Seller of any Receivable, any failure
of the Seller to give reasonably equivalent value to any
Transferring Affiliate in consideration of the purchase by the
Seller from such Transferring Affiliate of any Receivable, or
any attempt by any Person to void, rescind or set-aside any such
transfer under statutory provisions or common law or equitable
action, including, without limitation, any provision of the
Bankruptcy Code;
(xviii) any action taken by the Transferor, any Originating
Entity or the Collection Agent (if a Parent Group Member or
designee thereof) in the enforcement or collection of any
Receivable; provided, however, that if any Conduit
Investor enters into agreements for the purchase of interests in
receivables from one or more Other Transferors, such Conduit
Investor shall allocate such Indemnified Amounts which are in
connection with a Credit Support Agreement or the credit support
furnished by the Credit Support Provider to the Transferor and
each Other Transferor; and provided, further, that
if such Indemnified Amounts are attributable to any Parent Group
Member and not attributable to any Other Transferor, the
Transferor shall be solely liable for such Indemnified Amounts
or if such Indemnified Amounts are attributable to Other
Transferors and not attributable to any Parent Group Member,
such Other Transferors shall be solely liable for such
Indemnified Amounts;
(xix) any reduction or extinguishment of, or any failure by
any Obligor to pay (in whole or in part), any Receivable or any
Related Security with respect thereto as a result of or on
account of any violation of or prohibition under any law, rule
or regulation now or hereafter in effect from time to time,
including without limitation and CHAMPUS/VA Regulation, any
Medicaid Regulation or any Medicare Regulation, or as a result
of or on account of the entering of any judicial or regulatory
order or agreement adversely affecting the Transferor or any
Parent Group Member; or
(xx) any failure by the Transferor or any Parent Group
Member to maintain all governmental and other authorization and
approvals necessary to render the services, or sell the
merchandise, resulting in Receivables.
Section 8.2. Indemnity
for Taxes, Reserves and Expenses. (a) If after the
date hereof, the adoption of any Law or bank regulatory
guideline or any amendment or change in the interpretation of
any existing or future Law or bank regulatory guideline by any
Official Body charged with the administration, interpretation or
application thereof, or the compliance with any directive of any
Official Body (in the case of any bank regulatory guideline,
whether or not having the force of Law):
(i) shall subject any Indemnified Party to any tax, duty or
other charge (other than Excluded Taxes) with respect to this
Agreement, the other Transaction Documents, the ownership,
maintenance or financing of the Transferred Interest, the
Receivables or payments of amounts due hereunder, or shall
change the basis of taxation of payments to any Indemnified
Party of amounts payable in respect of this Agreement, the other
Transaction Documents, the ownership, maintenance or financing
of the Transferred Interest, the Receivables or payments of
amounts due hereunder or its obligation to advance funds
hereunder, under a Liquidity Provider Agreement or the credit
support furnished by a Credit Support Provider or otherwise in
respect of this Agreement, the other Transaction Documents, the
ownership, maintenance or financing of the Transferred Interest
or the Receivables (except for changes in the rate of general
corporate, franchise, net income or other income tax imposed on
such Indemnified Party by the jurisdiction in which such
Indemnified Party’s principal executive office is located);
(ii) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including, without
limitation, any such requirement imposed by the Board of
Governors of the Federal Reserve System) against assets of,
deposits with or for the account of, or credit extended by, any
Indemnified Party or shall impose on any Indemnified Party or on
the United States market for certificates of deposit or the
London interbank market any other condition affecting this
Agreement, the other Transaction Documents, the
48
ownership, maintenance or financing of the Transferred Interest,
the Receivables or payments of amounts due hereunder or its
obligation to advance funds hereunder under a Liquidity Provider
Agreement or the credit support provided by a Credit Support
Provider or otherwise in respect of this Agreement, the other
Transaction Documents, the ownership, maintenance or financing
of the Transferred Interest or the Receivables; or
(iii) imposes upon any Indemnified Party any other expense
(including, without limitation, reasonable attorneys’ fees
and expenses, and expenses of litigation or preparation therefor
in contesting any of the foregoing) with respect to this
Agreement, the other Transaction Documents, the ownership,
maintenance or financing of the Transferred Interest, the
Receivables or payments of amounts due hereunder or its
obligation to advance funds hereunder under a Liquidity Provider
Agreement or the credit support furnished by a Credit Support
Provider or otherwise in respect to this Agreement, the other
Transaction Documents, the ownership, maintenance or financing
of the Transferred Interests or the Receivables, and the result
of any of the foregoing is to increase the cost to such
Indemnified Party with respect to this Agreement, the other
Transaction Documents, the ownership, maintenance or financing
of the Transferred Interest, the Receivables, the obligations
hereunder, the funding of any purchases hereunder, a Liquidity
Provider Agreement or a Credit Support Agreement, by an amount
deemed by such Indemnified Party to be material,
then, within ten (10) days after demand by such Indemnified
Party through any Administrative Agent, the Transferor shall pay
to such Administrative Agent for the benefit of such Indemnified
Party, such additional amount or amounts as will compensate such
Indemnified Party for such tax, increased cost or reduction.
(b) If any Indemnified Party shall have determined that
after the date hereof, the adoption of any applicable Law or
bank regulatory guideline regarding capital adequacy or
accounting principles, or any change therein, or any change in
the interpretation or administration thereof by any Official
Body, or any request or directive regarding capital adequacy (in
each case of any bank regulatory guideline or accounting
principles, whether or not having the force of law) of any such
Official Body, has or would have the effect of reducing the rate
of return on capital of such Indemnified Party (or its parent)
as a consequence of such Indemnified Party’s obligations
hereunder or with respect hereto or otherwise as a consequence
of the transactions contemplated hereby to a level below that
which such Indemnified Party (or its parent) could have achieved
but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by
an amount deemed by such Indemnified Party to be material, then
from time to time, within ten (10) days after demand by
such Indemnified Party through any Administrative Agent, the
Transferor shall pay to such Administrative Agent, for the
benefit of such Indemnified Party, such additional amount or
amounts as will compensate such Indemnified Party (or its
parent) for such reduction. For avoidance of doubt, any
interpretation of Accounting Research Bulletin No. 51
by the Financial Accounting Standards Board shall constitute an
adoption, change, request or directive subject to this
Section 8.2(b).
(c) Each Administrative Agent will promptly notify the
Transferor of any event of which it has knowledge, occurring
after the date hereof, which will entitle an Indemnified Party
to compensation pursuant to this Section 8.2. A notice by
an Administrative Agent or the applicable Indemnified Party
claiming compensation under this Section and setting forth the
additional amount or amounts to be paid to it hereunder shall be
conclusive in the absence of manifest error. In determining such
amount, such Administrative Agent or any applicable Indemnified
Party may use any reasonable averaging and attributing methods.
(d) Anything in this Section 8.2 to the contrary
notwithstanding, if a Conduit Investor enters into agreements
for the acquisition of interests in receivables from one or more
Other Transferors, such Conduit Investor shall allocate the
liability for any amounts under this Section 8.2 which are
in connection with a Credit Support Agreement or the credit
support provided by the Credit Support Provider
(“Section 8.2 Costs”) to the Transferor
and each Other Transferor; provided, however, that
if such Section 8.2 Costs are attributable to any Parent
Group Member and not attributable to any Other Transferor, the
Transferor shall be solely liable for such Section 8.2
Costs or if such Section 8.2 Costs are attributable to
Other Transferors and not attributable to any Parent Group
Member, such Other Transferors shall be solely liable for such
Section 8.2 Costs.
(e) If any Indemnified Party in a Related Group makes a
claim for payment pursuant to this Section 8.2, then the
Transferor may, at its option, remove such Related Group and
terminate the Commitments of the Investors in such Related Group
by paying to the Administrative Agent for such Related Group an
amount (the “Payoff Amount”) equal to the sum of
(i) the portion of the Net Investment funded by the
Investors in such Related Group, (ii) all Discount accrued
and to accrue thereon through the last day of the applicable
Yield Period(s) to which such Net Investment has been allocated
and (iii) all other Aggregate Unpaids owing to the members
of such Related Group under the Transaction Documents accrued
through the date of such payment (including, without limitation,
amounts payable pursuant to this Section 8.2 accrued
through the date of payment). Any such removal and termination
shall be made upon not less than five (5) Business Days
notice delivered by the Transferor to the applicable
Administrative Agent. The Payoff Amount for any Related Group
shall be calculated by the
49
Administrative Agent and notified to the Transferor, which
calculation shall be conclusive and binding absent manifest
error. Upon such removal and termination, (x) the members
of such Related Group shall cease to be parties to this
Agreement and the Commitments of all Bank Investors in such
Related Group shall be reduced to zero, (y) the Facility
Limit will be reduced by an amount equal to the Commitments
(determined immediately prior to such termination) of the Bank
Investors, in such Related Group and (z) the Maximum Net
Investment shall be reduced to 98% of the Facility Limit
(determined after giving effect to the reduction thereof as
described above).
Section 8.3. Taxes. (a) All
payments made hereunder by the Transferor or the Collection
Agent (each, a “Payor”) to any Investor, any
Administrative Agent or the Agent (each, a
“Recipient”) shall be made free and clear of and
without deduction for any present or future income, excise,
stamp or franchise taxes and any other taxes, fees, duties,
withholdings or other charges of any nature whatsoever imposed
by any taxing authority on any recipient (or any assignee of
such parties) (such non-excluded items being called
“Taxes”), but excluding franchise taxes and taxes
imposed on or measured by the recipient’s net income or
gross receipts (“Excluded Taxes”). In the event that
any withholding or deduction from any payment made by the Payor
hereunder is required in respect of any Taxes, then such Payor
shall:
(i) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(ii) promptly forward to each Administrative Agent an
official receipt or other documentation satisfactory to the
Administrative Agent evidencing such payment to such
authority; and
(iii) pay to the Recipient such additional amount or
amounts as is necessary to ensure that the net amount actually
received by the Recipient will equal the full amount such
Recipient would have received had no such withholding or
deduction been required.
Moreover, if any Taxes are directly asserted against any
Recipient with respect to any payment received by such Recipient
hereunder, the Recipient may pay such Taxes and the Payor will
promptly pay such additional amounts (including any penalties,
interest or expenses) as shall be necessary in order that the
net amount received by the Recipient after the payment of such
Taxes (including any Taxes on such additional amount) shall
equal the amount such Recipient would have received had such
Taxes not been asserted. Notwithstanding the foregoing, the
Payor shall not be obligated to pay any such additional amounts
pursuant to clause (iii) above or pursuant to the
immediately preceding sentence to a Bank Investor that is not
organized under the laws of the United States of America or a
state thereof if such Bank Investor shall have failed to comply
with the requirements of paragraph (b) of this
Section 8.3 as of the time such Taxes are due and payable.
If the Payor fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Recipient the required
receipts or other required documentary evidence, the Payor shall
indemnify the Recipient for any incremental Taxes, interest, or
penalties that may become payable by any Recipient as a result
of any such failure.
(b) Each Investor that is not incorporated under the laws
of the United States of America or a state thereof shall:
(X) (i) on or before the date of any payment by a
Payor to such Investor, deliver to such Payor, the Agent and the
Administrative Agent for its Related Group (A) two
(2) duly completed copies of United States Internal Revenue
Service Form 1001 or 4224, or successor applicable form, as
the case may be, certifying that it is entitled to receive
payments hereunder without deduction or withholding of any
United States federal income taxes and (B) an Internal
Revenue Service
Form W-8
or W-9, or
successor applicable form, as the case may be, certifying that
it is entitled to an exemption from United States backup
withholding tax;
(ii) deliver to each Payor, the Agent and the
Administrative Agent for its Related Group two (2) further
copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete
and after the occurrence of any event requiring a change in the
most recent form previously delivered by it to such
Payor; and
(iii) obtain such extensions of time for filing and
complete such forms or certifications as may reasonably be
requested by either Payor, the Agent or the Administrative Agent
for its Related Group; or
(Y) Each Investor or transferee that is not a
“bank” under Section 881(c)(3)(A) of the Internal
Revenue Code thereof shall:
(i) on or before the date it becomes a party hereto (or, in
the case of a participant, on or before the date such
participant becomes a participant hereunder), deliver to each
Payor, the Agent and the Administrative Agent for its Related
Group (i) a statement under penalties of perjury that such
Investor or transferee (x) is not a “bank” under
Section 881(c)(3)(A) of the Internal Revenue Code, is not
subject to regulatory or other legal requirements as a bank in
any jurisdiction, and has not been treated as a bank for
50
purposes of any tax, securities law or other filing or
submission made to any governmental authority, any application
made to a rating agency or qualification for any exemption from
tax, securities law or other legal requirements, (y) is not
a 10-percent shareholder within the meaning of
Section 811(c)(3)(B) of the Internal Revenue Code and
(z) is not a controlled foreign corporation receiving
interest from a related person within the meaning of
Section 881(c)(3)(C) of the Internal Revenue Code and
(ii) a properly completed and duly executed Internal
Revenue Service
Form W-8
or applicable successor form;
(ii) deliver to each Payor, the Agent and its
Administrative Agent two further properly completed and duly
executed copies of such
Form W-8
expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form previously delivered
by it to such Payor or upon the request of such Payor; and
(iii) obtain such extensions of time for filing and
completing such forms or certifications as may be reasonably
requested by either Payor, the Agent or its Administrative Agent;
unless in any such case any change in treaty, law or regulation
has occurred after the date such Person becomes an Investor
hereunder which renders all such forms inapplicable or which
would prevent such Investor from duly completing and delivering
any such form with respect to it and such Investor so advises
each Payor, the Agent and its Administrative Agent. Each Person
that shall become an Investor or a participant of an Investor
pursuant to subsection 10.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms,
certifications and statements required pursuant to this
subsection, provided that in the case of a participant of
an Investor the obligations of such participant of an Investor
pursuant to this subsection (b) shall be determined as if
the participant of an Investor were an Investor except that such
participant of an Investor shall furnish all such required
forms, certifications and statements to the Investor from which
the related participation shall have been purchased.
Section 8.4. Other
Costs, Expenses and Related Matters. (a) The
Transferor agrees, upon receipt of a written invoice, to pay or
cause to be paid, and to save the Investors, the Administrative
Agents and the Agent harmless against liability for the payment
of, all reasonable out-of-pocket expenses (including, without
limitation, attorneys’, accountants’ and other third
parties’ fees and expenses, any filing fees and expenses
incurred by officers or employees of any of the Investors, the
Administrative Agents
and/or the
Agent) or intangible, documentary or recording taxes incurred by
or on behalf of any Investor, any Administrative Agent or the
Agent (i) in connection with the negotiation, execution,
delivery and preparation of this Agreement, the other
Transaction Documents and any documents or instruments delivered
pursuant hereto and thereto and the transactions contemplated
hereby or thereby (including, without limitation, the perfection
or protection of the Transferred Interest) and (ii) from
time to time (a) relating to any amendments, waivers or
consents under this Agreement and the other Transaction
Documents, (b) arising in connection with any
Investor’s, any Administrative Agent’s, the
Agent’s or any Collateral Agent’s enforcement or
preservation of rights (including, without limitation, the
perfection and protection of the Transferred Interest under this
Agreement), or (c) arising in connection with any audit,
dispute, disagreement, litigation or preparation for litigation
involving this Agreement or any of the other Transaction
Documents (all of such amounts, collectively,
“Transaction Costs”).
(b) With respect to any Tranche to which all or any portion
of the Net Investment held by any of the Investors in a Related
Group has been allocated, the Transferor shall pay to the
Administrative Agent for such Related Group, for the account of
each applicable Investor, on demand any Early Collection Fee due
on account of the reduction of such Tranche on a day prior to
the last day of its Tranche Period (or, in the case of a CP
Tranche Period, on or prior to the maturity date for the
Commercial Paper allocated to fund or maintain such Net
Investment).
Section 8.5. Reconveyance
Under Certain Circumstances. The Transferor agrees to
accept the reconveyance from the Agent, on behalf of the
applicable Investors, of the Transferred Interest if the Agent
or any Administrative Agent notifies Transferor of a material
breach of any representation or warranty made or deemed made
pursuant to Article III of this Agreement and Transferor
shall fail to cure such breach within 15 days (or, in the
case of the representations and warranties in
Sections 3.1(d) and 3.1(j), 3 days) of such notice.
The reconveyance price shall be paid by the Transferor to the
Agent, for the account of the applicable Investors, as
applicable, in immediately available funds on such 15th day
(or 3rd day, if applicable) in an amount equal to the
Aggregate Unpaids; provided that if such 15th day
(or 3rd day) is not a Business Day, such reconveyance and
the related payment shall be made on the next following Business
Day.
51
ARTICLE IX
THE AGENT;
BANK COMMITMENT; THE ADMINISTRATIVE AGENTS
Section 9.1. Authorization
and Action. (a) Each Investor hereby appoints and
authorizes the Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement and the other
Transaction Documents as are delegated to the Agent by the terms
hereof and thereof, together with such powers as are reasonably
incidental thereto. In furtherance, and without limiting the
generality, of the foregoing, each Investor hereby appoints the
Agent as its agent to execute and deliver all further
instruments and documents, and take all further action that the
Agent may deem necessary or appropriate or that any Investor may
reasonably request in order to perfect, protect or more fully
evidence the interests transferred or to be transferred from
time to time by the Transferor hereunder, or to enable any of
them to exercise or enforce any of their respective rights
hereunder, including, without limitation, the execution by the
Agent as secured party/assignee of such financing or
continuation statements, or amendments thereto or assignments
thereof, relative to all or any of the Receivables now existing
or hereafter arising, and such other instruments or notices, as
may be necessary or appropriate for the purposes stated
hereinabove. The Majority Investors may direct the Agent to take
any such incidental action hereunder. With respect to other
actions which are incidental to the actions specifically
delegated to the Agent hereunder, the Agent shall not be
required to take any such incidental action hereunder, but shall
be required to act or to refrain from acting (and shall be fully
protected in acting or refraining from acting) upon the
direction of the Majority Investors; provided,
however, the Agent shall not be required to take any
action hereunder if the taking of such action, in the reasonable
determination of the Agent, shall be in violation of any
applicable law, rule or regulation or contrary to any provision
of this Agreement or shall expose the Agent to liability
hereunder or otherwise. Upon the occurrence and during the
continuance of any Termination Event or Potential Termination
Event, the Agent shall take no action hereunder (other than
ministerial actions or such actions as are specifically provided
for herein) without the prior consent of the Majority Investors
(which consent shall not be unreasonably withheld or delayed).
The Agent shall not, without the prior written consent of all
Bank Investors, agree to (i) amend, modify or waive any
provision of this Agreement in any way which would
(A) reduce or impair Collections or the payment of Discount
or fees payable hereunder to the Investors or delay the
scheduled dates for payment of such amounts, (B) increase
the Servicing Fee (other than as permitted pursuant to
Section 6.2(b)), (C) modify any provisions of this
Agreement or the Receivables Purchase Agreement or the Parent
Agreement relating to the timing of payments required to be made
by the Transferor, any Originating Entity, FME KGaA or FMCH or
the application of the proceeds of such payments,
(D) permit the appointment of any Person (other than the
Agent) as successor Collection Agent, (E) release any
property from the lien provided by this Agreement (other than as
expressly contemplated herein) or (F) extend or permit the
extension of the Commitment Termination Date without the consent
of each Bank Investor. The Agent shall not, without the prior
written consent of each Administrative Agent, agree to amend,
modify or waive any provision of this Agreement, the
Transferring Affiliate Letter, the BMA Transfer Agreement, the
Receivables Purchase Agreement or the Parent Agreement. The
Agent shall not agree to any amendment of this Agreement which
increases the dollar amount of any Investor’s Commitment
without the prior consent of such Investor. In addition, the
Agent shall not agree to any amendment of this Agreement not
specifically described in the two preceding sentences without
the consent of the Majority Investors (which consent shall not
be unreasonably withheld or delayed). In the event the Agent
requests any Investor’s consent pursuant to the foregoing
provisions and the Agent does not receive a consent (either
positive or negative) from such Investor within 10 Business Days
of such Investor’s receipt of such request, then such
Investor (and its percentage interest hereunder) shall be
disregarded in determining whether the Agent shall have obtained
sufficient consent hereunder.
(b) The Agent shall exercise such rights and powers vested
in it by this Agreement and the other Transaction Documents, and
use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in
the conduct of such person’s own affairs.
SECTION 9.2. Agent’s Reliance, Etc. Neither the
Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by
it or them as Agent under or in connection with this Agreement
or any of the other Transaction Documents, except for its or
their own gross negligence or willful misconduct. Without
limiting the foregoing, the Agent: (i) may consult with
legal counsel (including counsel for any Parent Group Member),
independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (ii) makes no warranty or
representation to any Investor and shall not be responsible to
any Investor for any statements, warranties or representations
made in or in connection with this Agreement; (iii) shall
not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or
conditions of this Agreement or any of the other Transaction
Documents on the part of any Parent Group Member or the
Collection Agent or to inspect the property (including the books
and records) of any Parent Group Member or
52
the Collection Agent; (iv) shall not be responsible to any
Investor for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this
Agreement, any of the other Transaction Documents or any other
instrument or document furnished pursuant hereto or thereto; and
(v) shall incur no liability under or in respect of this
Agreement or any of the other Transaction Documents by acting
upon any notice (including notice by telephone), consent,
certificate or other instrument or writing (which may be by
telex) believed by it to be genuine and signed or sent by the
proper party or parties.
Section 9.3. Credit
Decision. Each Investor acknowledges that it has,
independently and without reliance upon the Agent, any
Administrative Agent, any Affiliate of an Administrative Agent
or any other Investor and based upon such documents and
information as it has deemed appropriate, made its own
evaluation and decision to enter into this Agreement and the
other Transaction Documents to which it is a party and, if it so
determines, to accept the transfer to the Agent on its behalf of
any undivided ownership interest in the Affected Assets
hereunder. Each Investor also acknowledges that it will,
independently and without reliance upon the Agent, any of the
Agent’s Affiliates or any other Investor and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own decisions in taking or not taking
action under this Agreement and the other Transaction Documents
to which it is a party.
Section 9.4. Indemnification
of the Agent. The Bank Investors agree to indemnify the
Agent (to the extent not reimbursed by the Transferor), ratably
in accordance with their respective Commitments, from and
against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Agent in any
way relating to or arising out of this Agreement or any action
taken or omitted by the Agent, any of the other Transaction
Documents hereunder or thereunder, provided that the Bank
Investors shall not be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting
from the Agent’s gross negligence or willful misconduct.
Without limitation of the foregoing, the Bank Investors agree to
reimburse the Agent, ratably in accordance with their respective
Commitments, promptly upon demand for any out-of-pocket expenses
(including counsel fees) incurred by the Agent in connection
with the administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise)
of, or legal advice in respect of rights or responsibilities
under, this Agreement and the other Transaction Documents, to
the extent that such expenses are incurred in the interests of
or otherwise in respect of the Bank Investors hereunder
and/or
thereunder and to the extent that the Agent is not reimbursed
for such expenses by the Transferor.
Section 9.5. Successor
Agent. The Agent may resign at any time by giving
written notice thereof to each Investor and the Transferor and
may be removed at any time with cause by the Majority Investors.
Upon any such resignation or removal, the Majority Investors
shall appoint a successor Agent. Each Investor agrees that it
shall not unreasonably withhold or delay its approval of the
appointment of a successor Agent. If no such successor Agent
shall have been so appointed, and shall have accepted such
appointment, within 30 days after the retiring Agent’s
giving of notice of resignation or the Majority Investors’
removal of the retiring Agent, then the retiring Agent may, on
behalf of the Investors, appoint a successor Agent which
successor Agent shall be either (i) a commercial bank
organized under the laws of the United States or of any state
thereof and have a combined capital and surplus of at least
$50,000,000 or (ii) an Affiliate of such a bank. Upon the
acceptance of any appointment as Agent hereunder by a successor
Agent, such successor Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties
of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under this Agreement.
After any retiring Agent’s resignation or removal hereunder
as Agent, the provisions of this Article IX shall continue
to inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under this Agreement.
Section 9.6. Payments
by the Agent. All amounts received by the Agent on
behalf of the Investors shall be paid by the Agent to the
Investors (at their respective accounts specified in their
respective Assignment and Assumption Agreements) on the Business
Day received by the Agent, unless such amounts are received
after 12:00 noon on such Business Day, in which case the
Agent shall use its reasonable efforts to pay such amounts to
the Investors on such Business Day, but, in any event, shall pay
such amounts to the Investors not later than the following
Business Day. All amounts received by the Agent hereunder on
behalf of the Investors shall be allocated among the Related
Groups in accordance with Sections 2.5
and/or 2.6,
as applicable. For purposes of the foregoing, the Agent shall be
deemed to be a member of the Related Group that includes
Paradigm.
Section 9.7. Bank
Commitment; Assignment to Bank Investors.
(a) Bank Commitment. At any time on or prior to the
Commitment Termination Date, in the event that a Conduit
Investor does not effect an Incremental Transfer as requested
under Section 2.2(a), then at any time, the Transferor
shall have the right to require such Conduit Investor to assign
its interest in the Net Investment in whole
53
to the Bank Investors in its Related Group pursuant to this
Section 9.7. In addition, at any time on or prior to the
Commitment Termination Date, (i) upon the occurrence of a
Termination Event that results in the Termination Date or
(ii) if a Conduit Investor elects to give notice to the
Transferor of a Reinvestment Termination Date, the Transferor
hereby requests and directs that such Conduit Investor assign
its interest in the Net Investment in whole to the Bank
Investors in its Related Group pursuant to this Section 9.7
and the Transferor hereby agrees to pay the amounts described in
Section 9.7(d) below. Provided that the Net Asset Test is
satisfied, upon any such election by a Conduit Investor or any
such request by the Transferor to such Conduit Investor, such
Conduit Investor shall make such assignment and the Bank
Investors in its Related Group shall accept such assignment and
shall assume all of such Conduit Investor’s obligations
hereunder. In connection with any assignment from a Conduit
Investor to the Bank Investors in its Related Group pursuant to
this Section 9.7, each Bank Investor shall, on the date of
such assignment, pay to such Conduit Investor an amount equal to
its Assignment Amount. Upon any assignment by a Conduit Investor
to the Bank Investors in its Related Group as contemplated
hereunder, such Conduit Investor shall cease to make any
additional Incremental Transfers hereunder.
(b) Assignment. No Bank Investor may assign all or a
portion of its interests in the Net Investment, the Receivables,
and Collections, Related Security and Proceeds with respect
thereto and its rights and obligations hereunder to any Person
unless approved in writing by the Administrative Agent for its
Related Group, on behalf of the related Conduit Investor.
Without limiting the generality of the foregoing, it is
understood for the avoidance of doubt that an Administrative
Agent may condition any approval on its receipt of written
confirmation from each applicable Rating Agency that such
assignment will not result in the reduction or withdrawal of the
then current rating of the Commercial Paper issued by the
related Conduit Investor. In the case of an assignment by a
Conduit Investor to the Bank Investors or by a Bank Investor to
another Person, the assignor shall deliver to the assignee(s) an
Assignment and Assumption Agreement in substantially the form of
Exhibit G attached hereto, duly executed, assigning to the
assignee a pro rata interest in the Net Investment, the
Receivables, and Collections, Related Security and Proceeds with
respect thereto and the assignor’s rights and obligations
hereunder and the assignor shall promptly execute and deliver
all further instruments and documents, and take all further
action, that the assignee may reasonably request, in order to
protect, or more fully evidence the assignee’s right, title
and interest in and to such interest and to enable the Agent, on
behalf of such assignee, to exercise or enforce any rights
hereunder and under the other Transaction Documents to which
such assignor is or, immediately prior to such assignment, was a
party. Upon any such assignment, (i) the assignee shall
have all of the rights and obligations of the assignor hereunder
and under the other Transaction Documents to which such assignor
is or, immediately prior to such assignment, was a party with
respect to such interest for all purposes, it being understood
that the Bank Investors, as assignees, shall (x) be
obligated to fund Incremental Transfers under
Section 2.2(a) in accordance with the terms thereof,
notwithstanding that related Conduit Investor was not so
obligated and (y) not have the right to elect the
commencement of the amortization of the Net Investment pursuant
to the definition of “Reinvestment Termination Date”,
notwithstanding that the related Conduit Investor had such
right) and (ii) the assignor shall relinquish its rights
with respect to such interest for all purposes of this Agreement
and under the other Transaction Documents to which such assignor
is or, immediately prior to such assignment, was a party. No
such assignment shall be effective unless a fully executed copy
of the related Assignment and Assumption Agreement shall be
delivered to the Agent, the Administrative Agent for the
applicable Related Group and the Transferor. All costs and
expenses of the Agent, the applicable Administrative Agent and
the assignor and assignee incurred in connection with any
assignment hereunder shall be borne by the Transferor and not by
the assignor or any such assignee. No Bank Investor shall assign
any portion of its Commitment hereunder without also
simultaneously assigning an equal portion of its interest in the
applicable Liquidity Provider Agreement.
(c) Effects of Assignment. By executing and
delivering an Assignment and Assumption Agreement, the assignor
and assignee thereunder confirm to and agree with each other and
the other parties hereto as follows: (i) other than as
provided in such Assignment and Assumption Agreement, the
assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement,
the other Transaction Documents or any other instrument or
document furnished pursuant hereto or thereto or the execution,
legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement, the other Transaction Documents or any
such other instrument or document; (ii) the assignor makes
no representation or warranty and assumes no responsibility with
respect to the financial condition of the Transferor, any Parent
Group Member or the Collection Agent or the performance or
observance by the Transferor, any Parent Group Member or the
Collection Agent of any of their respective obligations under
this Agreement, the Receivables Purchase Agreement, the
Transferring Affiliate Letter, the BMA Transfer Agreement, the
Parent Agreement, the other Transaction Documents or any other
instrument or document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of
this Agreement, the Receivables Purchase Agreement, the
Transferring Affiliate Letter, the BMA Transfer Agreement, the
Parent Agreement, and such other instruments, documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment
54
and Assumption Agreement and to purchase such interest;
(iv) such assignee will, independently and without reliance
upon the Agent, any Administrative Agent, or any of their
respective Affiliates, or the assignor and based on such
agreements, documents and information as it shall deem
appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement
and the other Transaction Documents; (v) such assignee
appoints and authorizes the Agent to take such action as agent
on its behalf and to exercise such powers under this Agreement,
the other Transaction Documents and any other instrument or
document furnished pursuant hereto or thereto as are delegated
to the Agent by the terms hereof or thereof, together with such
powers as are reasonably incidental thereto and to enforce its
respective rights and interests in and under this Agreement, the
other Transaction Documents, the Receivables, the Contracts and
the Related Security; (vi) such assignee appoints and
authorizes the applicable Administrative Agent to take such
action as agent on its behalf and to exercise such powers under
this Agreement, the other Transaction Documents and any other
instrument or document furnished pursuant hereto or thereto as
are delegated to the Administrative Agent by the terms hereof or
thereof, together with such powers as are reasonably incidental
thereto and to enforce its respective rights and interests in
and under this Agreement, the other Transaction Documents, the
Receivables, the Contracts and the Related Security,
(vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations which by the
terms of this Agreement and the other Transaction Documents are
required to be performed by it as the assignee of the assignor;
and (viii) such assignee agrees that it will not institute
against any Conduit Investor any proceeding of the type referred
to in Section 10.9 prior to the date which is one year and
one day after the payment in full of all Commercial Paper issued
by such Conduit Investor.
(d) Transferor’s Obligation to Pay Certain Amounts;
Additional Assignment Amount. The Transferor shall pay to
the Administrative Agent for a Conduit Investor or, in the case
of GBFC, to such Conduit Investor, for the account of such
Conduit Investor, in connection with any assignment by such
Conduit Investor to the Bank Investors in its Related Group
pursuant to this Section 9.7, an aggregate amount equal to
all Discount to accrue through the end of each outstanding
Tranche Period plus all other Aggregate Unpaids (other than
the Net Investment) owing to such Conduit Investor. To the
extent that such Discount relates to interest or discount on
Related Commercial Paper, if the Transferor fails to make
payment of such amounts at or prior to the time of assignment by
such Conduit Investor to the Bank Investors in its Related
Group, such amount shall be paid by such Bank Investors (in
accordance with their respective Pro Rata Shares) to such
Conduit Investor as additional consideration for the interests
assigned to such Bank Investors and the amount of the “Net
Investment” hereunder held by such Bank Investors shall be
increased by an amount equal to the additional amount so paid by
such Bank Investors.
(e) Administration of Agreement After Assignment.
After any assignment by a Conduit Investor to the Bank Investors
in its Related Group pursuant to this Section 9.7 (and the
payment of all amounts owing to such Conduit Investor in
connection therewith), all rights of the related Collateral
Agent set forth herein shall be deemed to be afforded to the
Administrative Agent for such Related Group on behalf of such
Bank Investors instead of such Collateral Agent.
(f) Payments. After any assignment by a Conduit
Investor to the Bank Investors in its Related Group pursuant to
this Section 9.7, all payments to be made hereunder by the
Transferor or the Collection Agent to such Conduit Investor
shall be made to the applicable Administrative Agent’s
account as such account shall have been notified to the
Transferor and the Collection Agent.
(g) Downgrade of Bank Investor. If (at any time
prior to any assignment by a Conduit Investor to the Bank
Investors in its Related Group as contemplated pursuant to this
Section 9.7) the short term debt rating of any Bank
Investor in such Related Group shall be
“A-2”
or
“P-2”
from Standard & Poor’s or Moody’s,
respectively, with negative credit implications, such Bank
Investor, upon request of the applicable Administrative Agent,
shall, within 30 days of such request, assign its rights
and obligations hereunder to another financial institution
(which institution’s short term debt shall be rated at
least
“A-2”
and
“P-2”
from Standard & Poor’s and Moody’s,
respectively, and which shall not be so rated with negative
credit implications). If the short term debt rating of a Bank
Investor in a Related Group shall be
“A-3”
or
“P-3”,
or lower, from Standard & Poor’s or Moody’s,
respectively (or such rating shall have been withdrawn by
Standard & Poor’s or Moody’s), such Bank
Investor, upon request of the applicable Administrative Agent,
shall, within five (5) Business Days of such request,
assign its rights and obligations hereunder to another financial
institution (which institution’s short term debt shall be
rated at least
“A-2”
and
“P-2”
from Standard & Poor’s and Moody’s,
respectively, and which shall not be so rated with negative
credit implications). In either such case, if any such Bank
Investor in a Related Group shall not have assigned its rights
and obligations under this Agreement within the applicable time
period described above, the related Conduit Investor shall have
the right to require such Bank Investor to accept the assignment
of such Bank Investor’s Pro Rata Share of the Net
Investment; such assignment shall occur in accordance with the
applicable provisions of this Section 9.7. Such Bank
Investor shall be obligated to pay to such Conduit Investor, in
connection with such assignment, in addition to the Pro Rata
Share of the Net Investment, an amount equal to the Interest
Component of
55
the outstanding Commercial Paper issued to fund the portion of
the Net Investment being assigned to such Bank Investor, as
reasonably determined by the applicable Administrative Agent.
Notwithstanding anything contained herein to the contrary, upon
any such assignment to a downgraded Bank Investor as
contemplated pursuant to the immediately preceding sentence, the
aggregate available amount of the applicable Related Group
Limit, solely as it relates to new Incremental Transfers to such
Conduit Investor, shall be reduced by the amount of unused
Commitment of such downgraded Bank Investor; it being understood
and agreed, that nothing in this sentence or the two preceding
sentences shall affect or diminish in any way any such
downgraded Bank Investor’s Commitment to the Transferor or
such downgraded Bank Investor’s other obligations and
liabilities hereunder and under the other Transaction Documents.
Section 9.8. Appointment
of Administrative Agents. (a) Each Investor in a
Related Group hereby appoints and authorizes the Administrative
Agent for its Related Group to take such action as agent on its
behalf and to exercise such powers under this Agreement and the
other Transaction Documents as are delegated to such
Administrative Agent by the terms hereof and thereof, together
with such powers as are reasonably incidental thereto. In
furtherance, and without limiting the generality, of the
foregoing, each Investor in a Related Group hereby appoints the
Administrative Agent for its Related Group as its agent to
execute and deliver all further instruments and documents, and
take all further action that such Administrative Agent may deem
necessary or appropriate or that any Investor may reasonably
request to enable any of them to exercise or enforce any of
their respective rights hereunder. Bank Investors representing
at least 66 and 2/3% of the aggregate Commitments of all Bank
Investors in a Related Group (the “Group Majority
Investors” for such Related Group) may direct the
Administrative Agent for such Related Group to take any such
incidental action hereunder. With respect to other actions which
are incidental to the actions specifically delegated to an
Administrative Agent hereunder, such Administrative Agent shall
not be required to take any such incidental action hereunder,
but shall be required to act or to refrain from acting (and
shall be fully protected in acting or refraining from acting)
upon the direction of the Group Majority Investors;
provided, however, no Administrative Agent shall
be required to take any action hereunder if the taking of such
action, in the reasonable determination of such Administrative
Agent, shall be in violation of any applicable law, rule or
regulation or contrary to any provision of this Agreement or
shall expose such Administrative Agent to liability hereunder or
otherwise. Upon the occurrence and during the continuance of any
Termination Event or Potential Termination Event, the
Administrative Agent for a Related Group shall take no action
hereunder (other than ministerial actions or such actions as are
specifically provided for herein) without the prior consent of
the Group Majority Investors (which consent shall not be
unreasonably withheld or delayed). The Administrative Agent for
a Related Group shall not, without the prior written consent of
all Bank Investor, in such Related Group, agree to
(i) amend, modify or waive any provision of this Agreement
in any way which would (A) reduce or impair Collections or
the payment of Discount or fees payable hereunder to the Bank
Investors, in such Related Group or delay the scheduled dates
for payment of such amounts, (B) increase the Servicing Fee
(other than as permitted pursuant to Section 6.2(b)),
(C) modify any provisions of this Agreement or the
Receivables Purchase Agreement or the Parent Agreement relating
to the timing of payments required to be made by the Transferor,
any Originating Entity, FME KGaA or FMCH or the application of
the proceeds of such payments, (D) permit the appointment
of any Person (other than the Agent) as successor Collection
Agent, (E) release any property from the lien provided by
this Agreement (other than as expressly contemplated herein) or
(F) extend or permit the extension of the Commitment
Termination Date without the consent of each Bank Investor, in
such Related Group. The Administrative Agent for a Related Group
shall not agree to any amendment of this Agreement which
increases the dollar amount of the Commitment of a Bank Investor
in such Related Group without the prior consent of such Bank
Investor. In addition, no Administrative Agent shall agree to
any amendment of this Agreement not specifically described in
the two preceding sentences without the consent of the related
Group Majority Investors (which consent shall not be
unreasonably withheld or delayed). In the event an
Administrative Agent requests any Investor’s consent
pursuant to the foregoing provisions and such Administrative
Agent does not receive a consent (either positive or negative)
from such Investor within 10 Business Days of such
Investor’s receipt of such request, then such Investor (and
its percentage interest hereunder) shall be disregarded in
determining whether such Administrative Agent shall have
obtained sufficient consent hereunder.
(b) Each Administrative Agent shall exercise such rights
and powers vested in it by this Agreement and the other
Transaction Documents, and use the same degree of care and skill
in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person’s own
affairs.
Section 9.9. Administrative
Agent’s Reliance, Etc. Neither any Administrative
Agent nor any directors, officers, agents or employees of an
Administrative Agent shall be liable for any action taken or
omitted to be taken by it or them as Administrative Agent under
or in connection with this Agreement or any of the other
Transaction Documents, except for its or their own gross
negligence or willful misconduct. Without limiting the
foregoing, each Administrative Agent: (i) may consult with
legal counsel (including counsel for any Parent Group Member),
56
independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (ii) makes no warranty or
representation to any Investor and shall not be responsible to
any Investor for any statements, warranties or representations
made in or in connection with this Agreement; (iii) shall
not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or
conditions of this Agreement or any of the other Transaction
Documents on the part of any Parent Group Member or the
Collection Agent or to inspect the property (including the books
and records) of any Parent Group Member or the Collection Agent;
(iv) shall not be responsible to any Investor for the due
execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, any of the other
Transaction Documents or any other instrument or document
furnished pursuant hereto or thereto; and (v) shall incur
no liability under or in respect of this Agreement or any of the
other Transaction Documents by acting upon any notice (including
notice by telephone), consent, certificate or other instrument
or writing (which may be by telex) believed by it to be genuine
and signed or sent by the proper party or parties.
Section 9.10. Indemnification
of the Administrative Agents. The Bank Investors, in
each Related Group agree to indemnify the Administrative Agent
for such Related Group (to the extent not reimbursed by the
Transferor), ratably in accordance with their Pro Rata Shares,
from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses
or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against such Administrative
Agent in any way relating to or arising out of this Agreement or
any action taken or omitted by such Administrative Agent, any of
the other Transaction Documents hereunder or thereunder,
provided that the Bank Investors, in a Related Group shall not
be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the applicable
Administrative Agent’s gross negligence or willful
misconduct. Without limitation of the foregoing, the Bank
Investors, in each Related Group agree to reimburse the
Administrative Agent for such Related Group, ratably in
accordance with their Pro Rata Shares, promptly upon demand for
any out-of-pocket expenses (including counsel fees) incurred by
such Administrative Agent in connection with the administration,
modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this
Agreement and the other Transaction Documents, to the extent
that such expenses are incurred in the interests of or otherwise
in respect of such Bank Investors, hereunder
and/or
thereunder and to the extent that such Administrative Agent is
not reimbursed for such expenses by the Transferor.
Section 9.11. Successor
Administrative Agents. Any Administrative Agent may
resign at any time by giving written notice thereof to the
Agent, each Investor in its Related Group and the Transferor and
may be removed at any time with cause by the applicable Group
Majority Investors. Upon any such resignation or removal, the
Group Majority Investors for such Related Group shall appoint a
successor Administrative Agent. Each Investor agrees that it
shall not unreasonably withhold or delay its approval of the
appointment of a successor Administrative Agent. If no such
successor Administrative Agent shall have been so appointed for
such Related Group, and shall have accepted such appointment,
within 30 days after the retiring Administrative
Agent’s giving of notice of resignation or the Group
Majority Investors’ removal of the retiring Administrative
Agent, then the retiring Administrative Agent may, on behalf of
the Investors in such Related Group, appoint a successor
Administrative Agent for such Related Group which successor
Administrative Agent shall be either (i) a commercial bank
having a combined capital and surplus of at least $50,000,000 or
(ii) an Affiliate of such a bank. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under this Agreement. After any
retiring Administrative Agent’s resignation or removal
hereunder as Administrative Agent, the provisions of this
Article IX shall continue to inure to its benefit as to any
actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
Section 9.12. Payments
by the Administrative Agents. Unless specifically
allocated to an Investor pursuant to the terms of this
Agreement, all amounts received by an Administrative Agent on
behalf of the Investors in its Related Group shall be paid by
such Administrative Agent to the Investors in its Related Group
(at their respective accounts specified in their respective
Assignment and Assumption Agreements) in accordance with their
respective related pro rata interests in the Net Investment on
the Business Day received by such Administrative Agent, unless
such amounts are received after 12:00 noon on such Business Day,
in which case such Administrative Agent shall use its reasonable
efforts to pay such amounts to the Investors in its Related
Group on such Business Day, but, in any event, shall pay such
amounts to such Investors in accordance with their respective
related pro rata interests in the Net Investment not later than
the following Business Day.
57
ARTICLE X
MISCELLANEOUS
Section 10.1. Term
of Agreement. This Agreement shall terminate on the
date following the Termination Date upon which the Net
Investment has been reduced to zero, all accrued Discount and
Servicing Fees have been paid in full and all other Aggregate
Unpaids have been paid in full, in each case, in cash;
provided, however, that (i) the rights and
remedies of the Agent, the Investors and the Administrative
Agents with respect to any representation and warranty made or
deemed to be made by the Transferor pursuant to this Agreement,
(ii) the indemnification and payment provisions of
Article VIII, and (iii) the agreement set forth in
Section 10.9 hereof, shall be continuing and shall survive
any termination of this Agreement.
Section 10.2. Waivers;
Amendments. No failure or delay on the part of the
Agent, any Investor or any Administrative Agent in exercising
any power, right or remedy under this Agreement shall operate as
a waiver thereof, nor shall any single or partial exercise of
any such power, right or remedy preclude any other further
exercise thereof or the exercise of any other power, right or
remedy. The rights and remedies herein provided shall be
cumulative and nonexclusive of any rights or remedies provided
by law. Any provision of this Agreement may be amended or waived
if, but only if, in the case of any amendment, such amendment is
in writing and is signed by the Transferor, the Agent, each
Administrative Agent and the Majority Investors and in the case
of any waiver, such waiver is granted in writing by each
Administrative Agent. Without limiting the generality of the
foregoing, it is understood for the avoidance of doubt that an
Administrative Agent may condition its consent to any amendment
or waiver on its receipt of written confirmation from S&P
and Moody’s that such amendment or waiver will not result
in the reduction or withdrawal of the then current rating of the
Commercial Paper issued by its related Conduit Investor.
Section 10.3. Notices. Except
as provided below, all communications and notices provided for
hereunder shall be in writing (including telecopy or electronic
facsimile transmission or similar writing) and shall be given to
the other party at its address or telecopy number set forth
below or at such other address or telecopy number as such party
may hereafter specify for the purposes of notice to such party.
Each such notice or other communication shall be effective
(i) if given by telecopy when such telecopy is transmitted
to the telecopy number specified in this Section 10.3 and
confirmation is received, (ii) if given by mail 3 Business
Days following such posting, postage prepaid,
U.S. certified or registered, (iii) if given by
overnight courier, one (1) Business Day after deposit
thereof with a national overnight courier service, or
(iv) if given by any other means, when received at the
address specified in this Section 10.3. However, anything
in this Section to the contrary notwithstanding, the Transferor
hereby authorizes each Investor, each Administrative Agent and
the Agent to effect Transfers, Tranche Period and
Tranche Rate selections based on telephonic notices made by
any Person which such Investor, such Administrative Agent or the
Agent, as applicable, in good faith believes to be acting on
behalf of the Transferor. The Transferor agrees to deliver
promptly to each such Investor or Administrative Agent or the
Agent, as applicable, a written confirmation of each telephonic
notice directed to such Person signed by an authorized officer
of Transferor. However, the absence of such confirmation shall
not affect the validity of such notice. If the written
confirmation differs in any material respect from the action
taken by the Agent or the applicable Investor or Administrative
Agent, the records of such Investor or Administrative Agent or
the Agent, as applicable shall govern absent manifest error.
If to the Transferor:
(NMC Funding Corporation)
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone:
(000) 000-0000
Telecopy:
(000) 000-0000
Attn: Xxxx Xxxxxxx
Payment Information:
Chase Manhattan Bank, N.A.
ABA
000-000-000
Account
000-0-00000
If to the Collection Agent:
National Medical Care, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone:
(000) 000-0000
Telecopy:
(000) 000-0000
Attn: Xxxx Xxxxxxx
58
If to the Agent:
WestLB AG, New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Securitization Group
Telephone:
(000) 000-0000
Telecopy:
(000) 000-0000
If to Paradigm:
c/o AMACAR
Group, L.L.C.
0000 Xxxxxxxx Xxxxxxxxx Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone:
000-000-0000
Telecopy:
000-000-0000
If to the Administrative Agent for Paradigm:
x/x XxxxXX
XX, Xxx Xxxx Xxxxxx
0000 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Securitization Group
Telephone:
(000) 000-0000
Telecopy:
(000) 000-0000
If to GBFC:
Giro Balanced-Funding Corporation
c/o Global
Securitization Services
00 Xxxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Tel: 631/000-0000
Telecopy: 212/302-8767
If to BayernLB:
Bayerische Landesbank, New York Branch
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Customer Securitization
Tel: 212/000-0000
Telecopy: 212/230-9020
If to Liberty Street:
c/o Global
Securitization Services, LLC
00 Xxxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telephone:
(000) 000-0000
Telecopy:
(000) 000-0000
If to the Administrative Agent for Liberty Street:
The Bank of Nova Scotia
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxx
Tel: 212/000-0000
Fax: 212/000-0000
59
with a copy to:
The Bank of Nova Scotia
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Tel: 212/000-0000
Fax: 212/000-0000
If to the Bank Investors, at their respective addresses set
forth on Schedule I or in the Assignment and Assumption
Agreement pursuant to which it became a party hereto.
Section 10.4. Governing
Law; Submission to Jurisdiction; Integration.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE
TRANSFEROR HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN THE CITY OF
NEW YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY. Each of the Transferor and the Collection Agent hereby
irrevocably waives, to the fullest extent it may effectively do
so, any objection which it may now or hereafter have to the
laying of the venue of any such proceeding brought in such a
court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum. Nothing in this
Section 10.4 shall affect the right of any Investor to
bring any action or proceeding against the Transferor or the
Collection Agent or any of their respective properties in the
courts of other jurisdictions.
(b) EACH OF THE PARTIES HERETO HEREBY WAIVES ANY RIGHT TO
HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE AMONG ANY OF THEM
ARISING OUT OF, CONNECTED WITH, RELATING TO OR INCIDENTAL TO THE
RELATIONSHIP BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT OR
THE OTHER TRANSACTION DOCUMENTS.
(c) This Agreement contains the final and complete
integration of all prior expressions by the parties hereto with
respect to the subject matter hereof and shall constitute the
entire Agreement among the parties hereto with respect to the
subject matter hereof superseding all prior oral or written
understandings.
(d) The Transferor and NMC each hereby appoint Arent Fox
LLP, located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as
the authorized agent upon whom process may be served in any
action arising out of or based upon this Agreement, the other
Transaction Documents to which such Person is a party or the
transactions contemplated hereby or thereby that may be
instituted in the United States District Court for the Southern
District of New York and of any New York State Court sitting in
the City of New York by any Administrative Agent, the Agent, any
Investor, any Collateral Agent or any assignee of any of them.
Section 10.5. Severability;
Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be
deemed to be an original and all of which when taken together
shall constitute one and the same Agreement. Any provisions of
this Agreement which are prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
Section 10.6. Successors
and Assigns. (a) This Agreement shall be binding
on the parties hereto and their respective successors and
assigns; provided, however, that neither the
Transferor nor the Collection Agent may assign any of its rights
or delegate any of its duties hereunder or under any of the
other Transaction Documents to which it is a party without the
prior written consent of each Administrative Agent. No provision
of this Agreement shall in any manner restrict the ability of
any Conduit Investor, any Bank Investor to assign, participate,
grant security interests in, or otherwise transfer any portion
of the Transferred Interest.
(b) Each of the Transferor and the Collection Agent hereby
agrees and consents to the assignment by any Conduit Investor
from time to time of all or any part of its rights under,
interest in and title to this Agreement and the Transferred
Interest to any Liquidity Provider for such Conduit Investor. In
addition, each of the Transferor and the Collection Agent hereby
consents to and acknowledges the assignment by any Conduit
Investor of all of its rights under, interest in and title to
this Agreement and the Transferred Interest to the related
Collateral Agent.
60
Section 10.7. Waiver
of Confidentiality. The Transferor hereby consents to
the disclosure of any non-public information with respect to it
received by any Conduit Investor, the Agent, any Bank Investor
or any Administrative Agent to any of the Conduit Investors, the
Agent, any nationally recognized rating agency rating the
Commercial Paper of such Conduit Investor, any Administrative
Agent, any Collateral Agent, any Bank Investor or potential Bank
Investor, any Liquidity Provider or any Credit Support Provider
in relation to this Agreement.
Section 10.8. Confidentiality
Agreement. (a) Each of the parties hereto hereby
agrees that, from the commencement of discussions with respect
to the transactions contemplated by the Transaction Documents
(the “Transaction”), each of the parties hereto
(and each of their respective, and their respective affiliates,
employees, officers, directors, advisors, representatives and
agents) are permitted to disclose to any and all Persons,
without limitation of any kind, the structure and tax aspects
(as such terms are used in Internal Revenue Code
Sections 6011, 6111 and 6112 and the regulations
promulgated thereunder) of the Transaction, and all materials of
any kind (including opinions or other tax analyses) that are
provided to any party related to such structure and tax aspects.
In this regard, the parties hereto acknowledge and agree that
the disclosure of the structure or tax aspects of the
Transaction is not limited in any way by an express or implied
understanding or agreement, oral or written (whether or not such
understanding or agreement is legally binding). Furthermore,
each of the parties hereto acknowledges and agrees that it does
not know or have reason to know that its use or disclosure of
information relating to the structure or tax aspects of the
Transaction is limited in any other manner (such as where the
Transaction is claimed to be proprietary or exclusive) for the
benefit of any other Person.
(b) Subject to Section 10.8(a), each of the Transferor
and the Collection Agent hereby agrees that it will not
disclose, and the Transferor will cause each Parent Group Member
to refrain from disclosing, the contents of this Agreement or
any other proprietary or confidential information of any Conduit
Investor, the Agent, any Administrative Agent, any Collateral
Agent, any Liquidity Provider or any Bank Investor to any other
Person except (i) as required by federal or state
securities laws, (ii) its auditors and attorneys, employees
or financial advisors (other than any commercial bank) and any
nationally recognized rating agency provided such
auditors, attorneys, employees financial advisors or rating
agencies are informed of the highly confidential nature of such
information or (iii) following notice thereof to each
Administrative Agent, as otherwise required by other applicable
law or order of a court of competent jurisdiction.
(c) Each Administrative Agent, each Investor and the Agent
acknowledges that it or its agents or representatives may, from
time to time, obtain knowledge of information, practices, books,
correspondence and records (“Confidential
Information”) identified to it in writing as being of a
confidential nature or in which the Transferor or an Originating
Entity has a proprietary interest. Subject to
Section 10.8(a), each Administrative Agent, each Investor
and the Agent agrees that all such Confidential Information so
obtained by it is to be regarded as confidential information and
that such Confidential Information may be subject to laws, rules
and regulations regarding patient confidentiality, and agrees
that (x) it shall retain in confidence, and shall ensure
that its agents and representatives retain in confidence, and
will not disclose, any of such Confidential Information without
the prior written consent of the Transferor and (y) it will
not, and will ensure that its agents and representatives will
not, make any use whatsoever (other than for purposes of this
Agreement) of any of such Confidential Information without the
prior written consent of the Transferor; provided,
however, that such Confidential Information may be
disclosed to the extent that such Confidential Information
(i) may be or becomes generally available to the public
(other than as a breach of this Section 10.8(c),
(ii) is required or appropriate in response to any summons
or subpoena in connection with any litigation or (iii) is
required by law to be disclosed; and provided,
further, however, that such Confidential
Information may be disclosed to (A) the Agent, any
Administrative Agent, any Investor, any Credit Support Provider
and any Liquidity Provider, subject to the terms of this
Section 10.8(c), (B) any such Person’s legal
counsel, auditors and other business advisors, (C) any such
Person’s government regulators and (D) the rating
agencies rating any Commercial Paper issued by a Conduit
Investor, provided that the Person making such disclosure
shall advise each recipient thereof referred to in clauses (A),
(B), (C) and (D) above that such Confidential
Information is to be regarded and maintained as confidential
information and that each Administrative Agent has agreed to
keep confidential such Confidential Information as provided in
clauses (x) and (y) above. Notwithstanding anything
herein to the contrary, the parties hereto agree that the
Transferor and the Collection Agent shall not be required to
furnish any patient specific medical information to the extent
the disclosure of such information would violate applicable law,
unless and until the recipient of such information executes and
delivers a business associate agreement in substantially the
form attached as Exhibit J.
Section 10.9. No
Bankruptcy Petition Against Conduit Investors. Each of
the Transferor and the Collection Agent hereby covenants and
agrees that, prior to the date which is one year and one day
after the payment in full of all outstanding Commercial Paper or
other indebtedness of any Conduit Investor, it will not, and the
Transferor will cause each Parent Group Member to not, institute
against, or encourage, assist or join any other Person in
instituting against, such Conduit Investor any bankruptcy,
reorganization, arrangement insolvency or liquidation
proceedings
61
or other similar proceeding under the laws of the United States
or any state of the United States or any other proceedings
related to an Event of Bankruptcy. Notwithstanding any provision
contained in this Agreement to the contrary, no Conduit Investor
shall, nor shall any Conduit Investor be obligated to, pay any
amount pursuant to this Agreement unless (i) the Conduit
Investor has received funds which may be used to make such
payment in accordance with such Conduit Investor’s
commercial paper program documents, which funds are not required
to repay its Commercial Paper when due; and (ii) after
giving effect to such payment, either (x) there is
sufficient liquidity available (determined in accordance with
such program documents) to pay the Face Amount of all its
Commercial Paper, (y) the Conduit Investor is not rendered
insolvent or (z) its Commercial Paper has been repaid in
full. Any amount which the Conduit Investor does not pay
pursuant to the operation of the preceding sentence shall not
constitute a claim (as defined in Section 101 of the United
States Bankruptcy Code) against or a corporate obligation of the
Conduit Investor for any insufficiency. The provisions of this
Section shall survive the termination of this Agreement.
Section 10.10. No
Recourse Against Stockholders, Officers or
Directors. No recourse under any obligation, covenant
or agreement of any Conduit Investor contained in this Agreement
shall be had against Global Securitization Services, LLC (nor
any affiliate thereof), AMACAR Group L.L.C. (nor any affiliate
thereof), or any stockholder, officer or director of such
Conduit Investor, as such, by the enforcement of any assessment
or by any legal or equitable proceeding, by virtue of any
statute or otherwise; it being expressly agreed and understood
that this Agreement is solely a corporate obligation of such
Conduit Investor, and that no personal liability whatsoever
shall attach to or be incurred by Global Securitization
Services, LLC (or any affiliate thereof), AMACAR Group L.L.C.
(or any affiliate thereof), or the stockholders, officers, or
directors of such Conduit Investor, as such, or any of them,
under or by reason of any of the obligations, covenants or
agreements of such Conduit Investor contained in this Agreement,
or implied therefrom, and that any and all personal liability
for breaches by a Conduit Investor of any of such obligations,
covenants or agreements, either at common law or at equity, or
by statute or constitution, of Global Securitization Services ,
LLC (or any affiliate thereof), AMACAR Group L.L.C. (or any
affiliate thereof) and every such stockholder, officer or
director of such Conduit Investor is hereby expressly waived as
a condition of and consideration for the execution of this
Agreement.
Section 10.11. Characterization
of the Transactions Contemplated by the Agreement. It
is the intention of the parties that the transactions
contemplated hereby constitute the sale of the Transferred
Interest, conveying good title thereto free and clear of any
Adverse Claims to the Agent, on behalf of the Investors, and
that the Transferred Interest not be part of the
Transferor’s estate in the event of an insolvency. If,
notwithstanding the foregoing, the transactions contemplated
hereby should be deemed a financing, the parties intend that the
Transferor shall be deemed to have granted to the Agent, on
behalf of the Investors, and the Transferor hereby grants to the
Agent, on behalf of the Investors, a first priority perfected
and continuing security interest in all of the Transferor’s
right, title and interest in, to and under the Receivables,
together with Related Security, Collections and Proceeds with
respect thereto, and together with all of the Transferor’s
rights under the Receivables Purchase Agreement, the
Transferring Affiliate Letter, the BMA Transfer Agreement and
all other Transaction Documents with respect to the Receivables
and with respect to any obligations thereunder of any
Originating Entity with respect to the Receivables, and that
this Agreement shall constitute a security agreement under
applicable law. The Transferor hereby assigns to the Agent, on
behalf of the Investors, all of its rights and remedies under
the Receivables Purchase Agreement, the Transferring Affiliate
Letter and the BMA Transfer Agreement (and all instruments,
documents and agreements executed in connection therewith) with
respect to the Receivables and with respect to any obligations
thereunder of any Originating Entity with respect to the
Receivables.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
62
PARADIGM FUNDING LLC,
as a Conduit Investor
By:
Name:
Title:
GIRO BALANCED FUNDING CORPORATION,
as a Conduit Investor
By:
Name:
Title:
LIBERTY STREET FUNDING LLC,
as a Conduit Investor
By:
Name:
Title:
NMC FUNDING CORPORATION,
as Transferor
By:
Name:
Title:
NATIONAL MEDICAL CARE, INC.,
as Collection Agent
By:
Name:
Title:
00
XXXXXX XX, XXX XXXX BRANCH, as Agent, an Administrative
Agent and as a Bank Investor
By:
Name:
Title:
By:
Name:
Title:
BAYERISCHE LANDESBANK, NEW YORK BRANCH, as an
Administrative Agent
By:
Name:
Title:
By:
Name:
Title:
BAYERISCHE LANDESBANK, CAYMAN ISLANDS BRANCH, as a Bank
Investor
By:
Name:
Title:
By:
Name:
Title:
00
XXX XXXX XX XXXX XXXXXX,
as an Administrative Agent and as a Bank Investor
By:
Name:
Title:
LANDESBANK HESSEN-THUERINGEN GIROZENTRALE, as a Bank
Investor
By:
Name:
Title:
By:
Name:
Title:
65
SCHEDULE I
to
FOURTH
AMENDED AND RESTATED
NOTICE
ADDRESSES FOR BANK INVESTORS
WESTLB AG, NEW YORK BRANCH
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Securitization Group
Telephone:
(000) 000-0000
Telecopy:
(000) 000-0000
BAYERISCHE LANDESBANK, CAYMAN ISLANDS BRANCH
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxxxx
Tel: 212/000-0000
Telecopy: 212/230-9020
LANDESBANK HESSEN — THUERINGEN GIROZENTRALE
Neue Xxxxxxx Xxxxxxx
00-00
X-00000 Xxxxxxxxx xx Xxxx
Xxxxxxx
Attention: Xxxxxx Xxxxxxx
Tel:
00000-00-0000-0000
Fax:
00000-00-0000-0000
THE BANK OF NOVA SCOTIA
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxx
Tel: 212/000-0000
Fax: 212/000-0000
with a copy to:
The Bank of Nova Scotia
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Tel: 212/000-0000
Fax: 212/000-0000
66
SCHEDULE II
to
FOURTH
AMENDED AND RESTATED
COMMITMENTS
OF BANK INVESTORS
|
|
|
|
|
Bank Xxxxxxxx
|
|
Xxxxxxxxxx
|
|
|
XxxxXX XX, Xxx Xxxx Branch
|
|
$
|
185,000,000
|
|
Bayerische Landesbank, Cayman Islands Branch
|
|
$
|
167,000,000
|
|
The Bank of Nova Scotia
|
|
$
|
143,000,000
|
|
Landesbank Hessen — Thueringen Girozentrale
|
|
$
|
55,000,000
|
|
67
EXHIBIT A
to
FOURTH
AMENDED AND RESTATED
FORMS OF
CONTRACTS
A-1
EXHIBIT B
to
FOURTH
AMENDED AND RESTATED
CREDIT
AND COLLECTION POLICIES AND PRACTICES
B-1
EXHIBIT C
to
FOURTH
AMENDED AND RESTATED
List
of Special Account Banks, Designated Account Agents and
Concentration Bank
SRM
(LABS)
Fleet Bank
Spectra East, Inc.
Xxxxxxx # 0000
275-04756
Fleet Bank
Spectra Labs, Inc.
Xxxxxxx # 0000
275-04772
DPD (Products)
Fleet Bank
Fresenius USA Manufacturing, Inc.
Xxxxxxx # 0000
275-04688
Fleet Bank
Fresenius USA Home Dialysis, Inc.
Xxxxxxx # 00000
275-04691
Bank of America
Fresenius USA Marketing Inc
Lockbox #3757
9429377223
DSD (Services)
Wachovia Bank
Bio Medical Applications Management Co.
Lockbox # 701131
2000454049194
NBU
Mid Atlantic, Ohio Valley, Eastern PA and Erie Regions
Bank of America
Bio Medical Applications Management Co.
Lockbox #3696
52297423
NBU
North and South New England Regions
Bank One
BMA of Michigan
Lockbox # 771207
361169544
CBU
Michigan Region
LaSalle Bank NA
Everest Healthcare Holdings
Lockbox # 4372
5800325622
NBU
Everest Facilities
C-1
Wachovia Bank
Bio Medical Applications Georgia
Lockbox # 101518
2000 1240 944 53
EBU
NC, SC, GA, AL, TN
M&T Bank
Bio Medical Applications Co., Inc.
Lockbox # 64741
621-60430
EBU
VA, W VA, KY, IN, MD, DC
Bank One
Bio Medical Applications Management Co.
Lockbox # 62760
0110212398
SBU
LA, OK, AR, TN, XX
XxXxxxx Bank NA
Everest Healthcare Holdings
Lockbox # 4013
5800325606
CBU
Transitioning all CBU facilities except Michigan to this account
Bank of America
Bio Medical Applications Management Co.
Lockbox # 23924
001100731678
SBU
Florida
Bank One
Bio Medical Applications Puerto Rico
638781856
Lockbox # 1251
SBU
Puerto Rico
Bank One
Bio Medical Applications Texas
0001559686066
Lockbox # 971367
SBU
Texas
Bank of America
Bio Medical Applications of Arizona
201-775939
Lockbox #52432
WBU
All WBU except Hawaii payments remitted from Hawaii
First Hawaiian Bank
Bio Medical Applications of California
01-138065
Mail Code 61123
XX Xxx 0000
Xxxxxxxx, XX
00000-0000
C-2
Wachovia Bank
Fresenius Medical Care Holdings, Inc. — North BU
Lockbox # 4361
2000028301103
Wachovia Bank
Fresenius Medical Care Holdings, Inc. — Central BU
Lockbox # 6462
200002830116
Wachovia Bank
Fresenius Medical Care Holdings, Inc. — South BU
Lockbox # 951416
2000028301129
Wachovia Bank
Fresenius Medical Care Holdings, Inc. — East BU
Lockbox # 933510
2000028301132
Wachovia Bank
Fresenius Medical Care Holdings, Inc. — West BU
Lockbox # 79047
2000028301145
Wachovia Bank
Fresenius Medical Care Holdings, Inc. — Southwest BU
Lockbox # 951480
2000032592160
Bank of America
Apheresis Care Group
3786854470
Bank of America
RCG Indiana LLC
Lockbox # 404410
3786857176
Bank of America
Dialysis Centers of America d/b/a RCG — Central
Illinois
3785285561
National City
Michigan Home Dialysis Center Inc.
Lockbox # 4295
501997748
National City
RCG Indiana LLC
Lockbox # 4705
501829670
Bank of America
RCG East, Inc,
Lockbox # 404221
3786857422
Xxxxxx Bank
Dialysis Centers of America Illinois, Inc.
Lockbox # 71766
3624921
C-3
AmSouth
Renal Care Group of the Southeast, Inc.
Lockbox # 410437
5002129401
AmSouth
Naples Dialysis Center, LLC
Lockbox # 410270
36775789
AmSouth
Renal Care Group of the Southeast d/b/a NNA of the MidSouth
Lockbox # 410525
45244545
Wachovia
Brevard County Dialysis
2000021562813
Wachovia
West Palm Beach Dialysis
Lockbox # 101694
2000133128640
Wachovia
Clermont Dialysis Center
Lockbox # 101581
2000136714860
Intrust Bank
Renal Care Group of the Midwest, Inc.
Lockbox # 49478
209031
Bank of America
RCG Louisville
Lockbox # 403083
112997382
Bank of America
RCG University
Lockbox # 404386
112602305
Xxxxx Fargo
Renal Care Group Alaska, Inc.
Lockbox # 52737
1220725244
Xxxxx Fargo
Renal Care Group Northwest, Inc.
Lockbox # 5273701
8367002885
Bank of America
Renal Partners, Inc.
112997127
AmSouth
Northeast Alabama Kidney Clinic
Lockbox # 410647
5002128494
C-4
Bank of America
Northeast Alabama Kidney Clinic
Lockbox # 404230
3786857189
Bank of America
RCG of the South
Lockbox # 403632
3786854441
Wachovia
Xxxxxxx County Dialysis
Lockbox # 101506
2000126627970
Wachovia
Norcross Dialysis Center
Lockbox # 101632
2000128857780
Wachovia
Xxxxx Dialysis Center
Lockbox # 101627
2000128858666
Wachovia
Xxxx County Dialysis
Lockbox # 101644
2000133124576
Wachovia
Xxxxxx Dialysis Center
Lockbox # 101568
2000122742228
Wachovia
Xxxxxxx County Dialysis
Lockbox # 101677
2000133131611
Wachovia
Cartersville Dialysis
Lockbox # 101412
2000133128420
Wachovia
Stone Mountain Dialysis
Lockbox # 101683
2000136716295
Wachovia
Xxxxxxxxx Dialysis Center
Lockbox # 101572
2000136719810
Wachovia
Smyrna Dialysis Center
Lockbox # 932982
2000021562774
Bank of America
RCG Texas, Inc.
Lockbox # 844698
3785286065
C-5
Bank of America
Renal Care Group Southwest Holdings, Inc.
3782867678
AmSouth
RCG Mississippi Inc. d/b/a Kidney Care
Lockbox # 30545
5002071553
AmSouth
RCG Mississippi Inc. d/b/a RCG Ferriday/RCG Helena
00000000
Bank of America
RCG Supply Co.
112987805
AmSouth
RCG Mississippi Inc. d/b/a NNA of Mississippi
Lockbox # 28906
45244898
AmSouth
RCG Memphis, LLC
Lockbox # 410640
17375207
AmSouth
RCG Memphis East, LLC
Lockbox # 410637
17376882
AmSouth
RCG Xxxxxx, LLC
Lockbox # 410629
5002132116
AmSouth
RCG Memphis South, LLC
Lockbox # 410027
18723632
AmSouth
RCG Whitehaven, LLC
Lockbox # 410276
36775819
AmSouth
RCG Xxxxxx, LLC
Lockbox # 410389
43723535
AmSouth
NNA of Florida, LLC d/b/a RCG of Florida, LLC
Lockbox # 410463
45244928
AmSouth
RCG Mississippi Inc. d/b/a NNA of Louisiana
MSC # 410492
45244936
C-6
AmSouth
Renal Care Group Central Memphis, LLC
Lockbox # 410634
17372496
AmSouth
Renal Care Group of the Midwest, Inc.
Lockbox # 410573
00000000
Bank of America
RCG Texas, Inc.
1297206568
Bank of America
Dialysis Management Corp.
1297900954
Bank of America
Stat Dialysis Corp.
4771910041
Bank of America
RCG Arkansas
5043820174
Bank of America
NNA Operating Account
3780630137
Bank of America
National Nephrology Associates, Inc.
0000000000
Bank of America
RCG Saint Luke’s LLC
2861217137
Bank of America
Kentucky Renal Care Group LLC
Lockbox # 409314
3782868279
Bank of America
Satellite Kidney Disease Centers, Inc.
Lockbox # 848386
3472996914
Bank of America
RCG of the Ozarks, LLC
Lockbox # 849736
0000000000
Bank of America
RCG East Texas LLP
Lockbox # 849098
0000000000
Bank of America
NNA Xxxxxxxx, LLC
Lockbox # 404238
3782868295
C-7
Bank of America
NNA East Orange, LLC
Lockbox # 404402
3782868318
Bank of America
NNA of Paducah, LLC
3782868101
Bank of America
RCG Xxxxxx XX
Lockbox # 849115
3786356651
Bank of America
Dialysis Centers of America
Lockbox # 15262
4622423184
First National Bank
Physicians Dialysis Co. Inc.
704009315
Greenfield Banking Company
RCG Greenfield
73400289
Xxxxxx Bank
Arlington Heights
Lockbox # 36243
3860202
Ironstone
Naples Dialysis Center, LLC
9061536504
National City Bank
RCG Westlake
Lockbox # 73108
657753998
National City Bank
RCG Westlake
Lockbox # 73108
657753998
National City Bank
Three Rivers Dialysis Services LLC
Lockbox # 4285
698457890
National City Bank
Maumee Dialysis Services, LLC
Lockbox # 4335
758004455
National City Bank
RCG Bloomington, LLC
Lockbox # 4340
758004594
National City Bank
Columbus Area Renal Alliance
657516925
X-0
Xxxxxxxx Xxxx Xxxx
Xxxxxxxxx Xxxxxxxx
758158152
National City Bank
RCG Toledo
982854661
Wachovia
Renal Care Group East, Inc.
Lockbox #
8500-5600
2000100736858
Xxxxx Fargo
RCG South New Mexico
Lockbox # 52742
122069171
Xxxxx Fargo
RCG Southwest LP
Lockbox # 52529
1220701955
Xxxxx Fargo
BMA of Nevada
Lockbox # 53508
1688597796
KeyBank
Physicians Dialysis Co. Inc.
0000000000
KeyBank
Physicians Dialysis Co. Inc.
Lockbox # 901781
5003520159
KeyBank
Physicians Dialysis Co. Inc.
Lockbox # 901780
5003520185
KeyBank
Physicians Dialysis Co. Inc.
Lockbox # 901782
5003520197
KeyBank
Physicians Dialysis Co. Inc.
Lockbox # 74580
15781000128
AmSouth
NMC Funding Corporation
0064932742
C-9
Bank of America
NMC Funding Corporation
004612454451
National City
NMC Funding Corporation
0985543826
Wachovia
NMC Funding Corporation
2000035308652
Xxxxx Fargo
NMC Funding Corporation
6069704192
XX Xxxxxx
NMC Funding Corporation
323076823
X-00
XXXXXXX X-0
to
FOURTH
AMENDED AND RESTATED
TRANSFER
AND ADMINISTRATION AGREEMENT
FORM OF
SPECIAL ACCOUNT LETTER
D-1
EXHIBIT D-2
to
FOURTH
AMENDED AND RESTATED
TRANSFER
AND ADMINISTRATION AGREEMENT
FORM OF
CONCENTRATION ACCOUNT AGREEMENT
D-2
EXHIBIT D-3
to
FOURTH
AMENDED AND RESTATED
TRANSFER
AND ADMINISTRATION AGREEMENT
FORM OF
INTERMEDIATE CONCENTRATION ACCOUNT AGREEMENT
D-3
EXHIBIT E
to
FOURTH AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
FORM OF INVESTOR REPORT
E-1
EXHIBIT F
to
FOURTH
AMENDED AND RESTATED
TRANSFER
AND ADMINISTRATION AGREEMENT
FORM OF
TRANSFER CERTIFICATE
F-1
EXHIBIT G
to
FOURTH
AMENDED AND RESTATED
TRANSFER
AND ADMINISTRATION AGREEMENT
FORM OF
ASSIGNMENT AND ASSUMPTION AGREEMENT
G-1
EXHIBIT H
to
FOURTH
AMENDED AND RESTATED
TRANSFER
AND ADMINISTRATION AGREEMENT
LIST OF
ACTIONS AND SUITS
SECTIONS 3.1(g),
3.1(k) and 3.3(e)
H-1
EXHIBIT I
to
FOURTH
AMENDED AND RESTATED
TRANSFER
AND ADMINISTRATION AGREEMENT
LOCATION
OF RECORDS
I-1
EXHIBIT J
to
FOURTH
AMENDED AND RESTATED
TRANSFER
AND ADMINISTRATION AGREEMENT
[FORM OF
BUSINESS ASSOCIATE AGREEMENT]
J-1
EXHIBIT K
to
FOURTH
AMENDED AND RESTATED
TRANSFER
AND ADMINISTRATION AGREEMENT
FORMS OF
OPINIONS OF COUNSEL
K-1
EXHIBIT L
to
FOURTH
AMENDED AND RESTATED
TRANSFER
AND ADMINISTRATION AGREEMENT
FORMS OF
SECRETARY’S CERTIFICATE
L-1
EXHIBIT M
to
FOURTH
AMENDED AND RESTATED
TRANSFER
AND ADMINISTRATION AGREEMENT
FORM OF
CERTIFICATE
M-1
EXHIBIT N
to
FOURTH
AMENDED AND RESTATED
TRANSFER
AND ADMINISTRATION AGREEMENT
LIST OF
APPROVED FISCAL INTERMEDIARIES
N-1
EXHIBIT O
to
FOURTH
AMENDED AND RESTATED
TRANSFER
AND ADMINISTRATION AGREEMENT
FORM OF
TRANSFERRING AFFILIATE LETTER
O-1
EXHIBIT P
to
FOURTH
AMENDED AND RESTATED
TRANSFER
AND ADMINISTRATION AGREEMENT
FORM OF
PARENT AGREEMENT
P-1
EXHIBIT Q
to
FOURTH
AMENDED AND RESTATED
TRANSFER
AND ADMINISTRATION AGREEMENT
LIST
OF TRANSFERRING AFFILIATES
|
|
|
Chief Executive Office for each
|
|
000 Xxxxxx Xxxxxx
|
Transferring Affiliate:
|
|
Xxxxxxx, Xxxxxxxxxxxxx 00000-0000
|
|
|
|
Original Transferring Affiliates
|
|
|
(Before October 19, 2006)
|
|
State of Incorporation
|
|
Bio-Medical Applications Home Dialysis Services, Inc.
|
|
Delaware
|
Bio-Medical Applications Management Company, Inc
|
|
Delaware
|
Bio-Medical Applications of Alabama, Inc.
|
|
Delaware
|
Bio-Medical Applications of Anacostia, Inc.
|
|
Delaware
|
Bio-Medical Applications of Aquadilla, Inc.
|
|
Delaware
|
Bio-Medical Applications of Arecibo, Inc.
|
|
Delaware
|
Bio-Medical Applications of Arkansas, Inc.
|
|
Delaware
|
Bio-Medical Applications of Bayamon, Inc.
|
|
Delaware
|
Bio-Medical Applications of Blue Springs, Inc
|
|
Delaware
|
Bio-Medical Applications of Caguas, Inc.
|
|
Delaware
|
Bio-Medical Applications of California, Inc.
|
|
Delaware
|
Bio-Medical Applications of Camarillo, Inc.
|
|
Delaware
|
Bio-Medical Applications of Capitol Hill, Inc.
|
|
Delaware
|
Bio-Medical Applications of Carolina, Inc.
|
|
Delaware
|
Bio-Medical Applications of Xxxxxx, Inc.
|
|
Delaware
|
Bio-Medical Applications of Clinton, Inc.
|
|
Delaware
|
Bio-Medical Applications of Columbia Heights, Inc.
|
|
Delaware
|
Bio-Medical Applications of Connecticut, Inc.
|
|
Delaware
|
Bio-Medical Applications of Delaware, Inc.
|
|
Delaware
|
Bio-Medical Applications of Dover, Inc.
|
|
Delaware
|
Bio-Medical Applications of Eureka, Inc.
|
|
Delaware
|
Bio-Medical Applications of Fayetteville, Inc.
|
|
Delaware
|
Bio-Medical Applications of Florida, Inc.
|
|
Delaware
|
Bio-Medical Applications of Fremont, Inc.
|
|
Delaware
|
Bio-Medical Applications of Fresno, Inc.
|
|
Delaware
|
Bio-Medical Applications of Georgia, Inc.
|
|
Delaware
|
Bio-Medical Applications of Glendora, Inc.
|
|
Delaware
|
Bio-Medical Applications of Guayama, Inc.
|
|
Delaware
|
Bio-Medical Applications of Hoboken, Inc.
|
|
Delaware
|
Bio-Medical Applications of Humacao, Inc.
|
|
Delaware
|
Bio-Medical Applications of Illinois, Inc.
|
|
Delaware
|
Bio-Medical Applications of Indiana, Inc.
|
|
Delaware
|
Bio-Medical Applications of Kansas, Inc.
|
|
Delaware
|
Bio-Medical Applications of Kentucky, Inc.
|
|
Delaware
|
Bio-Medical Applications of Las Americas, Inc.
|
|
Delaware
|
Bio-Medical Applications of Long Beach, Inc.
|
|
Delaware
|
Bio-Medical Applications of Los Gatos, Inc.
|
|
Delaware
|
Bio-Medical Applications of Louisiana, LLC
|
|
Delaware
|
Bio-Medical Applications of Maine, Inc.
|
|
Delaware
|
Bio-Medical Applications of Manchester, Inc.
|
|
Delaware
|
Q-1
|
|
|
Original Transferring Affiliates
|
|
|
(Before October 19, 2006)
|
|
State of Incorporation
|
|
Bio-Medical Applications of Maryland, Inc.
|
|
Delaware
|
Bio-Medical Applications of Massachusetts, Inc.
|
|
Delaware
|
Bio-Medical Applications of Mayaguez, Inc.
|
|
Delaware
|
Bio-Medical Applications of Michigan, Inc.
|
|
Delaware
|
Bio-Medical Applications of Minnesota, Inc.
|
|
Delaware
|
Bio-Medical Applications of Mission Hills, Inc.
|
|
Delaware
|
Bio-Medical Applications of Mississippi, Inc.
|
|
Delaware
|
Bio-Medical Applications of Missouri, Inc.
|
|
Delaware
|
Bio-Medical Applications of MLK, Inc.
|
|
Delaware
|
Bio-Medical Applications of Nevada, Inc
|
|
Nevada
|
Bio-Medical Applications of New Hampshire, Inc.
|
|
Delaware
|
Bio-Medical Applications of New Jersey, Inc.
|
|
Delaware
|
Bio-Medical Applications of New Mexico, Inc.
|
|
Delaware
|
Bio-Medical Applications of North Carolina, Inc.
|
|
Delaware
|
Bio-Medical Applications of Northeast, D.C., Inc.
|
|
Delaware
|
Bio-Medical Applications of Oakland, Inc.
|
|
Delaware
|
Bio-Medical Applications of Ohio, Inc.
|
|
Delaware
|
Bio-Medical Applications of Oklahoma, Inc.
|
|
Delaware
|
Bio-Medical Applications of Pennsylvania, Inc.
|
|
Delaware
|
Bio-Medical Applications of Xxxxx, Inc.
|
|
Delaware
|
Bio-Medical Applications of Puerto Rico, Inc.
|
|
Delaware
|
Bio-Medical Applications of Rhode Island, Inc.
|
|
Delaware
|
Bio-Medical Applications of Rio Piedras, Inc.
|
|
Delaware
|
Bio-Medical Applications of San Antonio, Inc.
|
|
Delaware
|
Bio-Medical Applications of San German, Inc.
|
|
Delaware
|
Bio-Medical Applications of San Xxxx, Inc.
|
|
Delaware
|
Bio-Medical Applications of South Carolina, Inc.
|
|
Delaware
|
Bio-Medical Applications of Southeast Washington, Inc.
|
|
Delaware
|
Bio-Medical Applications of Tennessee, Inc.
|
|
Delaware
|
Bio-Medical Applications of Texas, Inc.
|
|
Delaware
|
Bio-Medical Applications of The District of Columbia, Inc.
|
|
Delaware
|
Bio-Medical Applications of Ukiah, Inc.
|
|
Delaware
|
Bio-Medical Applications of Virginia, Inc.
|
|
Delaware
|
Bio-Medical Applications of West Virginia, Inc.
|
|
Delaware
|
Bio-Medical Applications of Wisconsin, Inc.
|
|
Delaware
|
Bio-Medical Applications of Woonsocket, Inc.
|
|
Delaware
|
Dialysis America Alabama, LLC
|
|
Delaware
|
Dialysis America Georgia, LLC
|
|
Delaware
|
Dialysis Associates of Northern New Jersey, L.L.C.
|
|
New Jersey
|
Everest Healthcare Holdings, Inc.
|
|
Delaware
|
Everest Healthcare Indiana, Inc.
|
|
Indiana
|
Everest Healthcare Rhode Island, Inc.
|
|
Delaware
|
Everest Healthcare Texas Holding Corp
|
|
Delaware
|
Everest Healthcare Texas, LP
|
|
Delaware
|
Everest Management, Inc.
|
|
Delaware
|
Fresenius Medical Care Dialysis Services Colorado LLC
|
|
Delaware
|
Fresenius Medical Care Dialysis Services-Oregon, LLC
|
|
Oregon
|
FMS New York, Inc.
|
|
Delaware
|
Fresenius Management Services, Inc.
|
|
Delaware
|
Q-2
|
|
|
Original Transferring Affiliates
|
|
|
(Before October 19, 2006)
|
|
State of Incorporation
|
|
Fresenius USA Home Dialysis, Inc.
|
|
Delaware
|
Fresenius USA Marketing, Inc.
|
|
Delaware
|
Fresenius USA, Inc.
|
|
Massachusetts
|
Gulf Region Mobile Dialysis, Inc.
|
|
Delaware
|
Home Dialysis of America, Inc.
|
|
Arizona
|
Home Dialysis of Muhlenberg County, Inc.
|
|
Kentucky
|
Home Intensive Care, Inc.
|
|
Delaware
|
Mercy Dialysis Center, Inc.
|
|
Wisconsin
|
National Medical Care, Inc.
|
|
Delaware
|
Neomedica, Inc
|
|
Delaware
|
North Xxxxxxx Dialysis Center, Inc.
|
|
Delaware
|
Northern New Jersey Dialysis, L.L.C.
|
|
Delaware
|
Qualicenters, Inc.
|
|
Colorado
|
San Diego Dialysis Services, Inc.
|
|
Delaware
|
Spectra East, Inc.
|
|
Delaware
|
Spectra Laboratories, Inc.
|
|
Nevada
|
Xxxxxxx Dialysis Center, L.L.C.
|
|
Delaware
|
Conejo Valley Dialysis, Inc.
|
|
California
|
Dialysis Services of Cincinnati, Inc.
|
|
Ohio
|
Dialysis Services, Inc.
|
|
Texas
|
Dialysis Specialists of Topeka, Inc.
|
|
Kansas
|
Dialysis Specialists of Tulsa, Inc.
|
|
Oklahoma
|
Everest Healthcare Ohio, Inc.
|
|
Ohio
|
Fresenius USA Sales, Inc.
|
|
Massachusetts
|
Haemo-Stat, Inc.
|
|
California
|
Santa Xxxxxxx Community Dialysis Center, Inc.
|
|
California
|
Con-Med Supply Company, Inc.
|
|
Illinois
|
WSKC Dialysis Services, Inc.
|
|
Illinois
|
Du Page Dialysis, Ltd.
|
|
Illinois
|
|
|
|
Additional Transferring Affiliates
|
|
|
(Added October 19, 2006)
|
|
State of Incorporation
|
|
Angleton Dialysis, Inc.
|
|
Texas
|
Arizona Renal Investments, LLC
|
|
Delaware
|
Brazoria Kidney Center, Inc.
|
|
Texas
|
Brevard County Dialysis, LLC
|
|
Florida
|
Cartersville Dialysis Center, LLC
|
|
Xxxxxxx
|
Xxxxxxx County Dialysis, LLC
|
|
Xxxxxxx
|
Xxxxxxxx Dialysis Center, LLC
|
|
Xxxxxxx
|
Xxxx County Dialysis, LLC
|
|
Xxxxxxx
|
Xxxxxxxx Area Renal Alliance, LLC
|
|
Delaware
|
Covington Dialysis Center, LLC
|
|
Georgia
|
Diabetes Care Group, Inc.
|
|
Delaware
|
Dialysis Associates, LLC
|
|
Tennessee
|
Dialysis Centers of America — Illinois, Inc.
|
|
Illinois
|
Dialysis Licensing Corp.
|
|
Delaware
|
Dialysis Management Corporation
|
|
Texas
|
Dialysis Services of Atlanta, Inc.
|
|
Xxxxxxx
|
Xxxxxxx County Dialysis, LLC
|
|
Georgia
|
Q-3
|
|
|
Additional Transferring Affiliates
|
|
|
(Added October 19, 2006)
|
|
State of Incorporation
|
|
Doylestown Acute Renal Services, L.L.C.
|
|
Pennsylvania
|
Xxxxxxx Dialysis Clinic, Inc.
|
|
Texas
|
Fort Xxxxx Regional Dialysis Center, Inc.
|
|
Missouri
|
Four State Regional Dialysis Center, Inc.
|
|
Missouri
|
Xxxxx Dialysis Center, LLC
|
|
Xxxxxxx
|
Xxxxxx Dialysis Clinic, LLC
|
|
Xxxxxxx
|
Xxxxxxxxx County Dialysis, Inc.
|
|
Arkansas
|
KDCO, Inc.
|
|
Missouri
|
Kentucky Renal Care Group, LLC
|
|
Delaware
|
Xxxxxx Dialysis, Inc.
|
|
Arkansas
|
Little Rock Dialysis, Inc.
|
|
Arkansas
|
Maumee Dialysis Services, LLC
|
|
Delaware
|
Miami Regional Dialysis Center, Inc.
|
|
Missouri
|
Michigan Home Dialysis Center, Inc.
|
|
Michigan
|
Naples Dialysis Center, LLC
|
|
Florida
|
National Nephrology Associates Management Company of Texas,
Inc.
|
|
Texas
|
National Nephrology Associates of Texas, L.P.
|
|
Texas
|
NNA Management Company of Kentucky, Inc.
|
|
Kentucky
|
NNA Management Company of Louisiana, Inc.
|
|
Louisiana
|
NNA of Alabama, Inc.
|
|
Alabama
|
NNA of East Orange, L.L.C.
|
|
New Jersey
|
NNA of Florida, LLC
|
|
Florida
|
NNA of Georgia, Inc.
|
|
Delaware
|
NNA of Xxxxxxxx, L.L.C.
|
|
New Jersey
|
NNA of Louisiana, LLC
|
|
Louisiana
|
NNA of Memphis, LLC
|
|
Tennessee
|
NNA of Nevada, Inc.
|
|
Nevada
|
NNA of Newark, L.L.C.
|
|
New Jersey
|
NNA of Oklahoma, Inc.
|
|
Nevada
|
NNA of Oklahoma, L.L.C.
|
|
Oklahoma
|
NNA of Rhode Island, Inc.
|
|
Rhode Island
|
NNA of Toledo, Inc.
|
|
Ohio
|
NNA Properties of Tennessee, Inc.
|
|
Tennessee
|
NNA Transportation Services Corporation
|
|
Tennessee
|
NNA-Saint Barnabas, L.L.C.
|
|
New Jersey
|
NNA-Saint Barnabas-Livingston, L.L.C.
|
|
New Jersey
|
Norcross Dialysis Center, LLC
|
|
Georgia
|
Northeast Alabama Kidney Clinic, Inc.
|
|
Alabama
|
Northwest Dialysis, Inc.
|
|
Arkansas
|
Physicians Dialysis Company, Inc.
|
|
Pennsylvania
|
RCG Arlington Heights, LLC
|
|
Delaware
|
RCG Bloomington, LLC
|
|
Delaware
|
RCG Credit Corporation
|
|
Tennessee
|
RCG East Texas, LLP
|
|
Delaware
|
RCG Finance, Inc.
|
|
Delaware
|
RCG Indiana, L.L.C.
|
|
Delaware
|
RCG Irving, LLP
|
|
Delaware
|
RCG Xxxxxx, LLC
|
|
Delaware
|
RCG Xxxxxx, LLC
|
|
Delaware
|
Q-4
|
|
|
Additional Transferring Affiliates
|
|
|
(Added October 19, 2006)
|
|
State of Incorporation
|
|
RCG Memphis East, LLC
|
|
Delaware
|
RCG Memphis, LLC
|
|
Delaware
|
RCG Mississippi, Inc.
|
|
Delaware
|
RCG PA Merger Corp.
|
|
Texas
|
RCG University Division, Inc.
|
|
Tennessee
|
RCG West Health Supply, L.C.
|
|
Arizona
|
RCG Whitehaven, LLC
|
|
Delaware
|
RCG/Saint Luke’s, LLC
|
|
Delaware
|
RCGIH, Inc.
|
|
Delaware
|
Renal Care Group Alaska, Inc.
|
|
Alaska
|
Renal Care Group Central Memphis, LLC
|
|
Delaware
|
Renal Care Group East, Inc.
|
|
Pennsylvania
|
Renal Care Group Michigan, Inc.
|
|
Delaware
|
Renal Care Group Northwest, Inc.
|
|
Delaware
|
Renal Care Group of the Midwest, Inc.
|
|
Kansas
|
Renal Care Group of the Ozarks, LLC
|
|
Delaware
|
Renal Care Group of the South, Inc.
|
|
Delaware
|
Renal Care Group of the Southeast, Inc.
|
|
Florida
|
Renal Care Group Ohio, Inc.
|
|
Delaware
|
Renal Care Group South New Mexico, LLC
|
|
Delaware
|
Renal Care Group Southwest Holdings, Inc.
|
|
Delaware
|
Renal Care Group Southwest, L.P.
|
|
Delaware
|
Renal Care Group Texas, Inc.
|
|
Texas
|
Renal Care Group Texas, LP
|
|
Delaware
|
Renal Care Group Westlake, LLC
|
|
Delaware
|
Renal Care Group, Inc.
|
|
Delaware
|
RenalNet Arizona, Inc.
|
|
Arizona
|
RenalNet, Inc.
|
|
Delaware
|
RenalPartners of Indiana, LLC
|
|
Indiana
|
RenalPartners, Inc.
|
|
Delaware
|
Renex Corp.
|
|
Florida
|
Renex Dialysis Clinic of Amesbury, Inc.
|
|
Massachusetts
|
Renex Dialysis Clinic of Bloomfield, Inc.
|
|
New Jersey
|
Renex Dialysis Clinic of Bridgeton, Inc.
|
|
Missouri
|
Renex Dialysis Clinic of Creve Coeur, Inc.
|
|
Missouri
|
Renex Dialysis Clinic of Doylestown, Inc.
|
|
Pennsylvania
|
Renex Dialysis Clinic of Maplewood, Inc.
|
|
Missouri
|
Renex Dialysis Clinic of North Andover, Inc.
|
|
Massachusetts
|
Renex Dialysis Clinic of Orange, Inc.
|
|
New Jersey
|
Renex Dialysis Clinic of Penn Hills, Inc.
|
|
Pennsylvania
|
Renex Dialysis Clinic of Philadelphia, Inc.
|
|
Pennsylvania
|
Renex Dialysis Clinic of Pittsburgh, Inc.
|
|
Pennsylvania
|
Renex Dialysis Clinic of Shaler, Inc.
|
|
Pennsylvania
|
Renex Dialysis Clinic of South Georgia, Inc.
|
|
Georgia
|
Renex Dialysis Clinic of St. Louis, Inc.
|
|
Missouri
|
Renex Dialysis Clinic of Tampa, Inc.
|
|
Florida
|
Renex Dialysis Clinic of Union, Inc.
|
|
Missouri
|
Renex Dialysis Clinic of University City, Inc.
|
|
Missouri
|
Renex Dialysis Clinic of Woodbury, Inc.
|
|
New Jersey
|
Q-5
|
|
|
Additional Transferring Affiliates
|
|
|
(Added October 19, 2006)
|
|
State of Incorporation
|
|
Renex Dialysis Facilities, Inc.
|
|
Mississippi
|
Renex Dialysis Homecare of Greater St. Louis, Inc.
|
|
Missouri
|
Renex Management Services, Inc.
|
|
Florida
|
Smyrna Dialysis Center, LLC
|
|
Georgia
|
SSKG, Inc.
|
|
Illinois
|
STAT Dialysis Corporation
|
|
Delaware
|
Stone Mountain Dialysis Center, LLC
|
|
Georgia
|
Stuttgart Dialysis, LLC
|
|
Arkansas
|
Three Rivers Dialysis Services, LLC
|
|
Delaware
|
West Palm Dialysis, LLC
|
|
Xxxxxxx
|
Xxxxxxx Dialysis, Inc.
|
|
Texas
|
Q-6
EXHIBIT R
to
FOURTH
AMENDED AND RESTATED
TRANSFER
AND ADMINISTRATION AGREEMENT
FORM OF
ACCOUNT AGENT AGREEMENT
R-1
EXHIBIT S
to
FOURTH
AMENDED AND RESTATED
TRANSFER
AND ADMINISTRATION AGREEMENT
LIST OF
CLOSING DOCUMENTS
S-1