Exhibit 10.2
CONFIDENTIAL
TREATMENT REQUESTED.
[*]
indicates confidential portions omitted pursuant to a request
for confidential treatment and filed separately with the
Securities and Exchange Commission
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
Administrative Agent, WESTLB AG,
NEW YORK 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
Xxxxxxxxx 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
Xxxxxxxxx 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 Xxxxx’x 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
Xxxxx’x 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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=
|
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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
|
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=
|
|
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
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=
|
|
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,
Xxxxx’x, 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) mark 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 Title 11, United States 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
Xxxxx’x, or if neither Standard & Poor’s nor
Xxxxx’x 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 Xxxxx’x, or if
neither Standard & Poor’s nor Xxxxx’x 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 Xxxxx’x, 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 Xxxxx’x, or if neither
Standard & Poor’s nor Xxxxx’x 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
Xxxxx’x, or if neither Standard & Poor’s nor
Xxxxx’x 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 Xxxxx’x,
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 Xxxxx’x,
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 Xxxxx’x,
respectively (or such rating shall have been withdrawn by
Standard & Poor’s or Xxxxx’x), 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 Xxxxx’x,
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 Xxxxx’x 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
Waltham, MA 02451
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
Waltham, MA 02451
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
New York, New York 10036
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
Charlotte, North Carolina 28211
Attention: Xxxxxxx Xxxxxxx
Telephone:
000-000-0000
Telecopy:
000-000-0000
If to the Administrative Agent for Paradigm:
c/o WestLB
AG, New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
New York, New York 10036
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
Melville, NY 11747
Attention: Xxxxxx Xxxxx
Tel: 631/000-0000
Telecopy: 212/302-8767
If to BayernLB:
Bayerische Landesbank, New York Branch
000 Xxxxxxxxx Xxxxxx
New York, New York 10022
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
Melville, NY 11747
Attention: Xxxxxx Xxxxx
Telephone:
(000) 000-0000
Telecopy:
(000) 000-0000
If to the Administrative Agent for Liberty Street:
The Bank of Nova Scotia
One Liberty Plaza
New York, NY 00000
Attention: Xxxxxxx Xxxx
Tel: 212/000-0000
Fax: 212/000-0000
59
with a copy to:
The Bank of Nova Scotia
One Liberty Plaza
New York, NY 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 xxxxxx
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 XXXX INTENTIONALLY LEFT BLANK]
62
PARADIGM FUNDING LLC,
as a Conduit Investor
Name: Xxxxx X. Xxxxx
Title: Vice President
GIRO BALANCED FUNDING CORPORATION,
as a Conduit Investor
Name: Xxxxxx X. Xxxxx
Title: Vice President
LIBERTY STREET FUNDING LLC,
as a Conduit Investor
Name: Xxxx X. Xxxxx
Title: Vice President
NMC FUNDING CORPORATION,
as Transferor
Name: Xxxx Xxxxxxx
Title: Vice President and Treasurer
NATIONAL MEDICAL CARE, INC.,
as Collection Agent
Name: Xxxx Xxxxxxx
Title: Vice President and Treasurer
63
WESTLB AG, NEW YORK BRANCH, as Agent, an Administrative
Agent and as a Bank Investor
Name: Xxxxxxx Xxxxx
Title: Executive Director
Name: Xxxxxxxxx Xxxxxx
Title: Director
BAYERISCHE LANDESBANK, NEW YORK BRANCH, as an
Administrative Agent
By:
/s/ Xxxxxxxxx
Xxxxxxx
Name: Xxxxxxxxx Xxxxxxx
Title: Senior Vice President
Name: Xxxx-Xxx Xxxxxx
Title: Vice President
BAYERISCHE LANDESBANK, CAYMAN ISLANDS BRANCH, as a Bank
Investor
Name: Xxxx-Xxx Xxxxxx
Title: Vice President
Name: Xxxx Xxxxxxxxx
Title: Second Vice President
64
THE BANK OF NOVA SCOTIA,
as an Administrative Agent and as a Bank Investor
Name: Xxxxxxx Xxxx
Title: Director
LANDESBANK HESSEN-THUERINGEN GIROZENTRALE, as a Bank
Investor
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
65
SCHEDULE I
to
FOURTH
AMENDED AND RESTATED
NOTICE
ADDRESSES FOR BANK INVESTORS
WESTLB AG, NEW YORK BRANCH
0000 Xxxxxx xx xxx Xxxxxxxx
New York, New York 10036
Attention: Asset Securitization Group
Telephone:
(000) 000-0000
Telecopy:
(000) 000-0000
BAYERISCHE LANDESBANK, CAYMAN ISLANDS BRANCH
000 Xxxxxxxxx Xxxxxx
New York, New York 10022
Attention: Xxxxxxxxx Xxxxxxx
Tel: 212/000-0000
Telecopy: 212/230-9020
LANDESBANK HESSEN — THUERINGEN GIROZENTRALE
Neue Mainzer Strasse
52-58
D-60297 Frankfurt am Main
Germany
Attention: Xxxxxx Xxxxxxx
Tel:
00000-00-0000-0000
Fax:
00000-00-0000-0000
THE BANK OF NOVA SCOTIA
One Liberty Plaza
New York, NY 00000
Attention: Xxxxxxx Xxxx
Tel: 212/000-0000
Fax: 212/000-0000
with a copy to:
The Bank of Nova Scotia
One Liberty Plaza
New York, NY 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 Investor
|
|
Commitment
|
|
|
WestLB AG, New York 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
[* 25 pages]
EXHIBIT B
to
FOURTH AMENDED AND RESTATED
CREDIT AND COLLECTION POLICIES AND PRACTICES
[* 97 pages]
List of Special Account Banks, Designated Account Agents and Concentration Bank
[* 14 pages]
EXHIBIT
D-1
to
FOURTH AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
FORM OF SPECIAL ACCOUNT LETTER
EXHIBIT
D-1
FORM OF SPECIAL ACCOUNT BANK LETTER
[DATE]
[Name and Address of
Special Account Bank]
[Name of Originating Entity]
Ladies and Gentlemen:
Reference is made to our depositary
account[s] number[s]
maintained in the name of the undersigned (the “Originating Entity”) with
you (the “Account[s]”).
Unless otherwise directed by the Originating Entity, you are hereby instructed to transfer
funds on deposit in the Account[s] solely to the following account by
[ACH transfer or, if so directed by the Originating Entity, by wire transfer] [intrabank
transfer]:
[Name, number and designation of (i) the Concentration Account and
Concentration Account Bank or (ii) the Intermediate Concentration Account, as applicable].
Each such transfer shall be made at the end of each banking day on which the amount on deposit
in the Account[s] exceeds $20,000, with the amount of the transfer being equal to the total amount
of such funds in excess of $5,000; provided that that Originating Entity may, at its option,
deliver a standing instruction to you to effect such transfer at the end of each banking day
regardless of the amount on deposit in the Account[s], with the amount of the transfer being equal
to the total amount of funds in the
Account[s].
Please agree to the terms of, and acknowledge receipt of, this letter by signing in the space
provided below on two copies hereof sent herewith and send the signed copies to NMC the Originating
Entity at its address at 000 Xxxxxx Xxxxxx, Xxxxxxx, XX 00000, Attention: Xxxx Xxxxxxx.
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Very truly yours,
[NAME OF ORIGINATING
ENTITY]
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By: |
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Title |
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Xxxxxx and acknowledged: |
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[NAME OF SPECIAL ACCOUNT BANK] |
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By: |
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Title: |
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2
EXHIBIT D-2
to
FOURTH AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
FORM OF CONCENTRATION ACCOUNT AGREEMENT
EXHIBIT D-2
FORM OF CONCENTRATION ACCOUNT AGREEMENT
(the “Agreement”)
October 16, 2008
JPMorgan Chase Bank
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Re: Account #000-0-00000
Ladies and Gentlemen:
You are hereby notified, in connection with certain transactions involving its accounts
receivable, that NMC FUNDING CORPORATION (the “Transferor”) has transferred certain rights in
Account # 000-0-00000 (the “Account”), as more particularly described below, to WestLB AG, New
York Branch (“WestLB”), as Agent (the “Agent”) under the Fourth Amended and Restated Transfer and
Administration Agreement dated October 16, 2008 by and among the Transferor, as transferor,
National Medical Care, Inc., as Collection Agent, the entities from time to time parties thereto
as “Conduit Investors,” “Bank Investors,” “Administrative Agents” and WestLB as Agent, as the same
may be amended, restated, supplemented or otherwise modified from time to time. The Agreement
amends, restates and
supersedes the letter agreement dated October 23, 2003 among the Transferor, the Agent and
you.
(a) |
|
Transfer to the Agent. The Transferor has transferred exclusive ownership and
dominion over the Account, including with respect to all monies, checks, instruments,
collections, remittances and other payment items received in the Account (the “Payment
Items”), to the Agent and, effective as of the Effective Time (as defined below), will
transfer exclusive control of the Account to the Agent. |
|
(b) |
|
Prior to Notice of Effectiveness. You are hereby instructed: (i) until the Effective
Time to make such transfers from the Account at such times and in such manner as the
Transferor shall from time to time instruct to the extent such instructions are not
inconsistent with the instructions set forth herein, and (ii) to permit the Transferor and
the Agent to obtain upon request any information relating to the Account, including, without
limitation, any information regarding the balance or activity of the Account. |
|
(c) |
|
Following Notice of Effectiveness. The Transferor and the Agent hereby instruct you,
beginning on the opening of business on the business day next succeeding the business day on
which a notice purporting to be signed by the Agent in substantially the form attached hereto
as “Annex I” with a copy of this Agreement attached thereto (a “Notice of Effectiveness”) is
received by facsimile or otherwise by Xxxxxxx X. Xxxx or Xxxxxx X. Xxxxx |
|
|
at the address or facsimile number set forth below (or at such other address or facsimile
number as you may from time to time notify the Agent and the Transferor in writing) (or if
such Notice of Effectiveness is so received after 12:00 noon, New York City time, on any such
business day, on the opening of business on the second business day next succeeding the
business day on which such receipt occurs) (either such time, the “Effective Time”), (i) to
transfer all funds deposited and collected in the Account pursuant to instructions given to you
by the Agent from time to time, (ii) that notwithstanding anything herein or elsewhere to the
contrary, the Agent, and not Transferor, shall be irrevocably entitled to exercise any and all
applicable rights in respect of or in connection with the Payment Items, including, without
limitation, the right to specify when payments in respect of the Payment Items are to be made
out of or in connection with the Account and (iii) you shall not take instruction from the
Transferor with respect to any amounts in the Account. You are hereby advised by the Agent and
the Transferor that the Transferor has under a separate agreement granted to the Agent certain
ownership and security interests in all Payment Items and their proceeds and all monies and
earning, if any, therefrom the Account, and by your signature below you acknowledge being so
advised. A “business day” is any day other than a Saturday, Sunday or other day on which you
are or are authorized or required by law to be closed. Anything to the contrary herein
notwithstanding, (i) all transactions relating to the Account or any Payment Items therein duly
commenced by you or your affiliates in accordance with customary procedures prior to the
Effective Time and so consummated or processed thereafter shall be deemed not to constitute a
violation of this Agreement,; and (ii) you, and/or any affiliate may (at your discretion and
without any obligation to do so) (x) cease honoring the Transferor’s instructions and/or
commence honoring solely the Agent’s instructions concerning the Account or the Payment Items
at any time or from time to time after you become aware that the Agent has sent a Notice of
Effectiveness to you but prior to the Effective Time therefor (including without limitation
halting, reversing or redirecting any transaction referred to in clause (i) above), or (y) deem
a Notice of Effectiveness to be received by you for purposes of the foregoing prior to the
specified individual’s actual receipt if otherwise actually received by you (or if such Notice
of Effectiveness contains minor mistakes or other irregularities but otherwise substantially
complies with the form attached hereto as “Annex I” or does not attach an appropriate copy of
this Agreement) with no liability whatsoever to the Transferor
or any other party for doing so and provided further that this Agreement evidences the
Agent’s control over the Account and notwithstanding anything to the contrary in any other
agreement governing the Account, on and after the Effective Time you shall comply with
instructions originated by the Agent that are permitted under the Account Documentation
directing the disposition of funds without further consent of the Transferor or any other
person. |
(d) |
|
General Terms. The monies, checks, instruments and other items of payment mailed to,
and funds deposited to, the Account will not be subject to deduction, setoff, banker’s lien,
or any other right in favor of any person other than the Agent and the Transferor (except
that you may set off (i) all amounts due to you in respect of your customary fees and
expenses for the routine maintenance and operation of the Account, (ii) the face amount of
any Payment Items which have been credited to the Account but are subsequently returned
unpaid or charged back or, as to Payment Items consisting of payment orders or other
electronic funds transfers, reversed, cancelled or otherwise corrected or adjusted, and (iii)
to cover overdrafts in the Account). |
2
This Agreement supplements, rather than replaces, your deposit account agreement, terms and
conditions and other standard documentation in effect from time to time with respect to the Account
or services provided in connection with the Account (the “Account Documentation”), which Account
Documentation will continue to apply to the Account and such services, and the respective rights,
powers, duties, obligations, liabilities and responsibilities of the parties thereto and hereto, to
the extent not expressly conflicting with the provisions of this Agreement (however, in the event
of any such conflict, the provisions of this Agreement shall control). Without limiting the
generality of the foregoing, it is understood and agreed that the only instructions the Transferor
or the Agent are entitled to give with respect to the Account are those which are permitted under
the Account Documentation and the Agent may request you to
provide other services (such as automatic daily transfers) with respect to the Account on or
after the Effective Time; however, if such services are not authorized or otherwise covered under
the Account Documentation, your decision to provide any such services shall be made in your sole
discretion (including without limitation being subject to the Transferor and/or the Agent executing
such Account Documentation or other documentation as you may require in connection therewith).
Prior to issuing any instructions which it is entitled to issue under this Agreement (for the
avoidance of doubt, other than a Notice of Effectiveness), the Agent shall provide you with a
Certificate of Incumbency substantially in the form of Xxxxx XX hereto.
Anything to the contrary in this Agreement notwithstanding, (i) you shall have only the
duties and responsibilities with respect to matters set forth herein as are expressly set forth in
writing herein and shall not be deemed to be a fiduciary for any party hereto, (ii) you shall be
fully protected in acting or refraining from acting in good faith on any written notice (including
a Notice of Effectiveness), instruction, or request purportedly furnished to you by the Agent in
accordance with the terms hereof, in which case the parties hereto agree that you have no duty to
make any further inquiry whatsoever (without limiting the generality of the foregoing, it is
hereby acknowledged and agreed that you have no knowledge of (and are not required to know) the
terms and provisions of the separate agreement referred to in clause (c) above or any other
related documentation to which you are not a party or whether any actions by the Agent (including
without limitation the sending of a Notice of Effectiveness), the Transferor or any other person
or entity are permitted or a breach thereunder or consistent or inconsistent therewith), (iii) you
shall not be liable to any party hereto or any other person for any action or failure to act under
or in connection with this Agreement except for your own willful misconduct or gross negligence
(and, to the maximum extent permitted by law, shall under no circumstances be liable for indirect,
special, punitive or consequential damages); further, you shall not be liable for losses or delays
caused by force majeure, interruption or malfunction of computer, transmission or communications
facilities, labor difficulties, court order or decree, the
commencement of bankruptcy or other similar proceedings or other matters beyond your
reasonable control; (iv) the Transferor hereby indemnifies you for, and holds you harmless
against, any loss, cost, liability or expense (including reasonable inside or outside counsel fees
and disbursements) incurred or suffered by you arising out of or in connection with this Agreement
or the Account, except as may result from your willful misconduct or gross negligence, or any
interpleader proceeding related thereto or incurred or suffered by you at the Transferor’s
direction or instruction; and (v) upon and after the Effective Time, the Agent agrees to reimburse
you for the item(s) referred to in clause (ii) of subparagraph (d) above (to the extent that the
Agent has already received the benefits of such item(s)), in the event that there are
3
insufficient funds in the Account therefor and you have not received reimbursement from the
Transferor within 10 days after your written request therefor.
You may terminate this Agreement upon the sending of at least thirty (30) business days
advance written notice to the other parties hereto. The Agent may terminate this Agreement upon
the sending of at least five (5) business days advance written notice to the other parties hereto.
The Transferor may not terminate this Agreement except upon the sending of at least ten (10)
business days advance written notice to you accompanied by the Agent’s written consent to such
termination. Neither this Agreement nor any provision hereof may be changed, amended, modified or
waived orally but only by an instrument in writing signed by you, the Agent and the Transferor.
You shall not assign or transfer your rights or obligations hereunder (other than to the
Agent) without the prior written consent of the Agent and the Transferor provided,
however that you may transfer any such rights or obligations to an affiliate upon 30 days
advance written notice to the Agent and the Transferor. Subject to the preceding sentence, this
Agreement shall be binding upon each of the parties hereto and their respective successors and
assigns, and shall
inure to the benefit of, and be enforceable by, the Agent, each of the parties hereto and
their respective successors and assigns.
You hereby represent that the person signing this Agreement on your behalf is duly authorized
by you to sign.
You agree to give the Agent, at its address specified below, copies of each periodic statement
relating to activity in the Account which you provide to the Transferor, together with such
additional information relating to the Account as the Agent may from time to time reasonably
request. You further agree to give the Agent and the Transferor prompt notice if the Account become
subject to any writ, garnishment, judgement, warrant or attachment, execution or similar process.
Any notice, demand or other communication required or permitted to be given hereunder shall be
in writing and may be personally served or sent by facsimile or by courier service or by United
States mail and except as provided above with respect to a Notice of Effectiveness shall be deemed
to have been delivered when delivered in person or by courier service or by facsimile or three (3)
business days after deposit in the United States mail (registered or certified, with postage
prepaid and properly addressed). For the purposes hereof, (i) the addresses of the parties hereto
shall be as set forth below each party’s name below, or, as to each party, at such other address as
may be designated by such party in a written notice to the other party and the Agent and (ii) the
address of the Agent shall be WestLB AG, New York Branch, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, attention: Asset Securitization Group, fax: 000-000-0000 or at such other address
as may be designated by the Agent in a written notice to each of the parties hereto.
This Agreement may be signed in any number or counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon
the same instrument, (ii) shall become effective when counterparts hereof have been signed by the
parties hereto and (iii) shall be governed by and construed in accordance with the laws of the
4
State of New York. All parties hereby waive all rights to a trial by jury in any action or
proceeding relating to the Account or this Agreement.
5
Please agree to the terms of, and acknowledge receipt of this notice by signing in the space
provided below.
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Very truly yours, |
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NMC FUNDING CORPORATION, |
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000 Xxxxxx Xxxxxx |
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Waltham, Massachusetts 02451 |
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Facsimile No: (000) 000-0000 |
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ACKNOWLEDGED AND AGREED: |
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JPMORGAN CHASE BANK |
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Date: |
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Attention: [ ] |
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JPMorgan Chase Bank |
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0 Xxxxx Xxxxxxxxx Xxxxx, 22nd Floor |
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New York, NY 10081 |
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Facsimile No: [ ] |
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WESTLB AG, NEW YORK BRANCH, as Agent |
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6
ANNEX 1
TO CONCENTRATION ACCOUNT LETTER
(FORM OF NOTICE OF EFFECTIVENESS)
DATED: , 200_
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TO: |
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0 Xxxxx Xxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, N.Y. 10081 |
ATTN: [ ] or [ ]
Re: Concentration Account Bank No. 000-0-00000
Ladies and Gentlemen:
We hereby give you a “Notice of Effectiveness” with respect to the above referenced Account,
as and to the extent described in our letter agreement with you dated October 16, 2008, a copy of
which is attached hereto. You are hereby instructed to comply with the instructions of the
undersigned as set forth in that letter.
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Very truly yours, |
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WESTLB AG, NEW YORK BRANCH, as Agent |
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7
ANNEX II
TO CONCENTRATION ACCOUNT LETTER
(FORM OF INCUMBENCY CERTIFICATE)
CERTIFICATE OF AN OFFICER OF
WESTLB AG, NEW YORK BRANCH, AS AGENT
The undersigned [ ] being an [Assistant Secretary] [Vice
President] of WestLB AG, New York Branch (the “Company”) hereby executes and delivers this
certificate to JPMorgan Chase Bank (“JPMCB”) on behalf of the Company pursuant to the Concentration
Account Letter dated as of October 16, 2008 among the Company, NMC Funding Corporation, Bank of
America N.A., and JPMCB (as amended, restated, supplemented or otherwise modified from time to
time, the “Concentration Account Letter”). Capitalized terms used herein and not otherwise
defined herein shall have the respective meanings assigned thereto in the Concentration Account
Letter.
The undersigned hereby certifies, as of the date hereof, that the following named persons are
duly appointed officers of the Company, holding the office or offices set forth opposite their
respective names, and each is authorized to execute and deliver, on behalf of the Company,
instructions pursuant to the terms of the Concentration Account Letter, and the signatures
appearing opposite the names of such individuals are authentic and genuine and are, in fact,
the signatures of such individuals:
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IN
WITNESS WHEREOF, I have hereunto set my hand this ___ day of , 2008.
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By: |
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[Assistant Secretary] [Vice President] |
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9
EXHIBIT D-3
to
FOURTH AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
FORM OF INTERMEDIATE CONCENTRATION ACCOUNT AGREEMENT
EXHIBIT D-3
FORM OF INTERMEDIATE CONCENTRATION ACCOUNT AGREEMENT
(the “Agreement”)
[DATE]
[Name and Address of Intermediate Concentration Account Bank]
Re: Account # [ ]
Ladies and Gentlemen:
You are hereby notified, in connection with certain transactions involving its accounts
receivable, that NMC FUNDING CORPORATION (the “Transferor”) has transferred
certain rights in Account #[ ] (the “Account”), as more particularly described below, to
WestLB AG, New York Branch (“WestLB”), as Agent (the “Agent”) under the Fourth Amended and
Restated Ttransfer and Administration Agreement dated October 16, 2008 by and among the
Transferor, as transferor, National Medical Care, Inc., as Collection Agent, the entities from
time to time parties thereto as “Conduit Investors,” “Bank Investors,” “Administrative Agents” and
WestLB as Agent (as the same has been or may hereafter be amended, restated, supplemented or
otherwise modified from time to time, the “TAA”).
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Transfer to the Agent. The Transferor has transferred exclusive ownership and
dominion over the Account, including with respect to all monies, checks, instruments,
collections, remittances and other payment items received in the Account (the “Payment
Items”), to the Agent and, effective as of the Effective Time (as defined below), will
transfer exclusive control of the Account to the Agent. |
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Prior to Notice of Effectiveness. You are hereby instructed until the Effective Time
to
transfer at the end of each banking day all funds on deposit in the Account to the account
listed in Annex I by ACH transfer or, if so directed by the Originating Entity, by wire
transfer.
You are hereby further instructed to permit the Transferor and the Agent to obtain upon request
any information relating to the Account, including, without limitation, any information
regarding the balance or activity of the Account. |
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Following Notice of Effectiveness. The Transferor and the Agent hereby instruct you,
beginning on the opening of business on the business day next succeeding the business day
on which a notice purporting to be signed by the Agent in substantially the form attached
hereto as “Annex II” with a copy of this Agreement attached thereto (a “Notice of
Effectiveness”) is received by facsimile or otherwise by you at the address or facsimile
number set forth below (or at such other address or facsimile number as you may from time
to time notify the Agent and the Transferor in writing) (or if such Notice of Effectiveness is |
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so received after 12:00 noon, New York City time, on any such business day, on the opening of
business on the second business day next succeeding the business day on which such receipt
occurs) (either such time, the “Effective Time”), (i) to transfer all funds deposited and
collected in the Account pursuant to instructions given to you by the Agent from time to time,
(ii) that notwithstanding anything herein or elsewhere to the contrary, the Agent, and not
Transferor, shall be irrevocably entitled to exercise any and all applicable rights in respect
of or in connection with the Payment Items, including, without limitation, the right to specify
when payments in respect of the Payment Items are to be made out of or in connection with the
Account and (iii) you shall not take instruction from the Transferor with respect to any amounts
in the Account. You are hereby advised by the Agent and the Transferor that the Transferor has
under a separate agreement granted to the Agent certain ownership and security interests in all
Payment Items and their proceeds and all monies and earning, if any,
therefrom the Account, and by your signature below you acknowledge being so advised. A “business
day” is any day other than a Saturday, Sunday or other day on which you are or are authorized or
required by law to be closed. Anything to the contrary herein notwithstanding, (i) all
transactions relating to the Account or any Payment Items therein duly commenced by you or your
affiliates in accordance with customary procedures prior to the Effective Time and so
consummated or processed thereafter shall be deemed not to constitute a violation of this
Agreement,; and (ii) you, and/or any affiliate may (at your discretion and without any
obligation to do so) (x) cease honoring the Transferor’s instructions and/or commence honoring
solely the Agent’s instructions concerning the Account or the Payment Items at any time or from
time to time after you become aware that the Agent has sent a Notice of Effectiveness to you but
prior to the Effective Time therefor (including without limitation halting, reversing or
redirecting any transaction referred to in clause (i) above), or (y) deem a Notice of
Effectiveness to be received by you for purposes of the foregoing prior to the specified
individual’s actual receipt if otherwise actually received by you (or if such Notice of
Effectiveness contains minor mistakes or other irregularities but otherwise substantially
complies with the form attached hereto as “Annex II” or does not attach an appropriate copy of
this Agreement) with no liability whatsoever to the Transferor or any other party for doing so
and provided further that this Agreement evidences the Agent’s control over the Account
and notwithstanding anything to the contrary in any other agreement governing the Account, on
and after the Effective Time you shall comply with instructions originated by the Agent that are
permitted under the Account Documentation directing the disposition of funds without further
consent of the Transferor or any other person. |
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General Terms. The monies, checks, instruments and other items of payment mailed to,
and funds deposited to, the Account will not be subject to deduction, setoff, banker’s lien,
or any other right in favor of any person other than the Agent and the Transferor (except
that you may set off (i) all amounts due to you in respect of your customary fees and
expenses for the routine maintenance and operation of the Account, (ii) the face amount of
any Payment Items
which have been credited to the Account but are subsequently returned unpaid or charged back
or, as to Payment Items consisting of payment orders or other electronic funds transfers,
reversed, cancelled or otherwise corrected or adjusted, and (iii) to cover overdrafts in the
Account). This Agreement supplements, rather than replaces, your deposit account agreement,
terms and conditions and other standard documentation in effect from time to time with respect
to the Account or services provided in connection with the Account (the |
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“Account Documentation”), which Account Documentation will continue to apply to the Account and
such services, and the respective rights, powers, duties, obligations, liabilities and
responsibilities of the parties thereto and hereto, to the extent not expressly conflicting with
the provisions of this Agreement (however, in the event of any such conflict, the provisions of
this Agreement shall control). Without limiting the generality of the foregoing, it is understood
and agreed that the only instructions the Transferor or the Agent are entitled to give with
respect to the Account are those which are permitted under the Account Documentation and the Agent
may
request you to provide other services (such as automatic daily transfers) with respect to the
Account on or after the Effective Time; however, if such services are not authorized or otherwise
covered under the Account Documentation, your decision to provide any such services shall be made
in your sole discretion (including without limitation being subject to the Transferor and/or the
Agent executing such Account Documentation or other documentation as you may require in connection
therewith). Prior to issuing any instructions which it is entitled to issue under this Agreement
(for the avoidance of doubt, other than a Notice of Effectiveness), the Agent shall provide you
with a Certificate of Incumbency substantially in the form of Xxxxx XXX hereto. |
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Anything to the contrary in this Agreement notwithstanding, (i) you shall have only the duties and
responsibilities with respect to matters set forth herein as are expressly set forth in writing
herein and shall not be deemed to be a fiduciary for any party hereto, (ii) you shall be fully
protected in acting or refraining from acting in good faith on any written notice (including a
Notice of Effectiveness), instruction, or request purportedly furnished to you by the Agent in
accordance with the terms hereof, in which case the parties hereto agree that you have no duty to
make any further inquiry whatsoever (without limiting the generality of the foregoing, it is hereby
acknowledged and agreed that you have no knowledge of (and are not required to know) the terms and
provisions of the TAA referred to above or any other related documentation to which you are not a
party or whether any actions by the Agent (including without limitation the sending of a Notice of
Effectiveness), the Transferor or any other person or entity are permitted or a breach thereunder
or consistent or inconsistent therewith), (iii) you shall not be liable to any party hereto or any
other person for any action or failure to act under or in connection with this Agreement except for
your own willful misconduct or gross negligence (and, to the maximum extent permitted by law, shall
under no circumstances be liable for indirect, special, punitive or consequential damages);
further, you shall not be liable for losses or delays caused by force majeure, interruption or
malfunction of computer, transmission or communications facilities, labor difficulties, court order
or decree, the commencement of bankruptcy or other similar proceedings or other matters beyond your
reasonable control; (iv) the Transferor hereby
indemnifies you for, and holds you harmless against, any loss, cost, liability or expense
(including reasonable inside or outside counsel fees and disbursements) incurred or suffered by you
arising out of or in connection with this Agreement or the Account, except as may result from your
willful misconduct or gross negligence, or any interpleader proceeding related thereto or incurred
or suffered by you at the Transferor’s direction or instruction; and (v) upon and after the
Effective Time, the Agent agrees to reimburse you for the item(s) referred to in clause (ii) of
subparagraph (d) above (to the extent that the Agent has already received the benefits of such
item(s)), in the event that there are insufficient funds in the Account therefor and you have not
received reimbursement from the Transferor within 10 days after your written request therefor. |
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You may terminate this Agreement upon the sending of at least thirty (30) business days
advance written notice to the other parties hereto. The Agent may terminate this Agreement upon
the sending of at least five (5) business days advance written notice to the other parties hereto.
The Transferor may not terminate this Agreement except upon the sending of at
least ten (10) business days advance written notice to you accompanied by the Agent’s written
consent to such termination. Neither this Agreement nor any provision hereof may be changed,
amended, modified or waived orally but only by an instrument in writing signed by you, the Agent
and the Transferor.
You shall not assign or transfer your rights or obligations hereunder (other than to the
Agent) without the prior written consent of the Agent and the Transferor provided,
however that you may transfer any such rights or obligations to an affiliate upon 30 days
advance written notice to the Agent and the Transferor. Subject to the preceding sentence, this
Agreement shall be binding upon each of the parties hereto and their respective successors and
assigns, and shall inure to the benefit of, and be enforceable by, the Agent, each of the parties
hereto and their respective successors and assigns.
You hereby represent that the person signing this Agreement on your behalf is
duly authorized by you to sign.
You agree to give the Agent, at its address specified below, copies of each periodic
statement relating to activity in the Account which you provide to the Transferor, together with
such additional information relating to the Account as the Agent may from time to time reasonably
request. You further agree to give the Agent and the Transferor prompt notice if the Account
become subject to any writ, garnishment, judgment, warrant or attachment, execution or similar
process.
Any notice, demand or other communication required or permitted to be given hereunder shall be
in writing and may be personally served or sent by facsimile or by courier service or by United
States mail and except as provided above with respect to a Notice of Effectiveness shall be deemed
to have been delivered when delivered in person or by courier service or by facsimile or three (3)
business days after deposit in the United States mail
(registered or certified, with postage prepaid and properly addressed). For the purposes
hereof, (i) the addresses of the parties hereto shall be as set forth below each party’s name
below, or, as to each party, at such other address as may be designated by such party in a written
notice to the other party and the Agent and (ii) the address of the Agent shall be WestLB AG, New
York Branch, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention: Xxxx Xxxxx or at
such other address as may be designated by the Agent in a written notice to each of the parties
hereto.
This Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon the same
instrument, (ii) shall become effective when counterparts hereof have been signed by the parties
hereto and (iii) shall be governed by and construed in accordance with the laws of the State of
New York. All parties hereby waive all rights to a trial by jury in any action or proceeding
relating to the Account or this Agreement.
4
Please agree to the terms of, and acknowledge receipt of this notice by signing in the space
provided below.
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Very truly yours, |
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NMC FUNDING CORPORATION, |
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By: |
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Title:
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000 Xxxxxx Xxxxxx |
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Waltham, MA 02451 |
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Facsimile No: (000) 000-0000 |
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ACKNOWLEDGED AND AGREED: |
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[NAME OF BANK] |
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By: |
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Title:
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Date:
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[Name, Address and Facsimile No.] |
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WESTLB AG, NEW YORK BRANCH, as Agent |
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By: |
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Name:
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Title:
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By: |
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ANNEX I
TO INTERMEDIATE CONCENTRATION ACCOUNT AGREEMENT
[Insert wire instructions for Concentration Account]
6
ANNEX II
TO INTERMEDIATE CONCENTRATION ACCOUNT AGREEMENT
(FORM OF NOTICE OF EFFECTIVENESS)
DATED: , 200_
TO: [Name and Address of Bank
ATTN: [ ] or [ ]
Re: Account No. [ ]
Ladies and Gentlemen:
We hereby give you a “Notice of Effectiveness” with respect to the above referenced Account,
as and to the extent described in our letter agreement with you dated [DATE], a copy of which is
attached hereto. You are hereby instructed to comply with the instructions of the undersigned as
set forth in that letter.
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Very truly yours, |
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WESTLB AG, NEW YORK BRANCH, as Agent |
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By: |
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Title:
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7
ANNEX III
TO CONCENTRATION ACCOUNT AGREEMENT
(FORM OF INCUMBENCY CERTIFICATE)
CERTIFICATE OF AN OFFICER OF
WESTLB
AG, NEW YORK BRANCH, AS AGENT
The undersigned [ ] being an [Assistant Secretary] [Vice
President] of WestLB AG, New York Branch (the “Company”) hereby executes and delivers this
certificate to [ ] (the “Bank”) on behalf of the Company pursuant to the Intermediate
Concentration Account Letter dated as of [DATE] among the Company, NMC Funding Corporation and the
Bank (as amended, restated, supplemented or otherwise modified from time to time, the
“Concentration Account Letter”). Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings assigned thereto in the Concentration Account Letter.
The undersigned hereby certifies, as of the date hereof, that the following named persons
are duly appointed officers of the Company, holding the office or offices set forth opposite
their respective names, and each is authorized to execute and deliver, on behalf of the Company,
instructions pursuant to the terms of the Concentration Account Letter, and the signatures
appearing opposite the names of such individuals are authentic and genuine and are, in fact, the
signatures of such individuals:
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IN
WITNESS WHEREOF, I have hereunto set my hand this ___
day of , 2003.
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By: |
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[Assistant Secretary] [Vice President] |
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9
EXHIBIT E
to
FOURTH AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
FORM OF INVESTOR REPORT
[* 15 pages]
EXHIBIT F
to
FOURTH AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
FORM OF TRANSFER CERTIFICATE
EXECUTION COPY
SECOND AMENDED AND RESTATED TRANSFER CERTIFICATE
Reference is made to the Fourth Amended and Restated Transfer and Administration Agreement
dated as of October 16, 2008, (such agreement as amended, modified or supplemented from time to
time, the “Agreement”) among NMC Funding Corporation, as transferor (in such capacity, the
“Transferor”), National Medical Care, Inc., as collection agent (in such capacity, the “Collection
Agent”), Paradigm Funding LLC, as a Conduit Investor, Giro Balanced Funding Corporation as a
Conduit Investor, Liberty Street Funding LLC as a Conduit Investor, the financial institutions
from time to time a party thereto as Bank Investors, Bayerische Landesbank, New York Branch, as an
Administrative Agent, The Bank of Nova Scotia as an Administrative Agent and WestLB, New York
Branch (“WestLB”) as an Administrative Agent and as Agent. Terms defined in the Agreement are used
herein as therein defined.
The Transferor hereby conveys, transfers and assigns to the Agent, on behalf of the Conduit
Investors and the Bank Investors, as applicable, an undivided ownership interest in the Affected
Assets. Each Incremental Transfer by the Transferor to the Agent and each reduction or increase in
the Net Investment in respect of each Incremental Transfer evidenced hereby shall be indicated by
the Agent on the grid attached hereto which is part of this Transfer Certificate.
This Transfer Certificate is made without recourse except as otherwise provided in the
Agreement.
This Transfer Certificate shall be governed by, and construed in accordance with, the laws of
the State of New York.
This Transfer Certificate amends and restates in its entirety that certain Transfer
Certificate dated as of October 23, 2003 issued to WestLB, New York Branch.
[The remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the undersigned has caused this Transfer Certificate to be duly executed and delivered by its duly
authorized officer as of the date first above written.
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NMC FUNDING CORPORATION,
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Dated as of October 16, 2008
2
Transfer Certificate
(Grid)
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Specify whether Incremental Transfer or Reduction in Net Investment. |
EXHIBIT G
to
FOURTH AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
Exhibit G
to
Fourth Amended and Restated Transfer and Administration Agreement
FORM OF ASSIGNMENT AND ASSUMPTION
Dated , 20_
Reference is made to the Fourth Amended and Restated Transfer and
Administration Agreement dated as of October 16, 2008 (as the same may be amended, restated,
supplemented, or otherwise modified from time to time, the “TAA”) by and among NMC Funding
Corporation, as transferor (the “Transferor”), National Medical Care, Inc., as the initial
collection agent (the “Collection Agent”), those entities from time to time parties thereto as
“Conduit Investors”, those financial institutions from time to time parties thereto as “Bank
Investors”, those entities from time to time parties thereto as “Administrative Agents”, and WestLB
AG, New York Branch, as “Agent”. Unless otherwise defined herein, capitalized terms used herein and
not otherwise defined herein shall have the respective meanings ascribed thereto in the TAA.
(the “Assignor”) and (the “Assignee”)
agree as follows:
1. The Assignor hereby assigns to the Assignee, without recourse, a percentage of the
Transferred Interest (such percentage as set forth on Schedule I hereto, to be determined
based on the relation that the amount of the Sales Price (as hereinafter defined) allocated to Net
Investment bears to the aggregate Net Investment held by the Assignor immediately prior to the
assignment contemplated hereby) owned by the Assignor under the TAA as of the Assignment Date (as
hereinafter defined). In consideration thereof, the Assignee
has paid to the Assignor an amount (the “Sales Price”) equal to $ 1, receipt of which
payment is hereby acknowledged. In addition, in consideration of the payment of the Sales Price,
the Assignor hereby sells and assigns to the Assignee, without recourse and the Assignee hereby
accepts and assumes from the Assignor, [all] [such percentage] of the Assignor’s rights,
obligations and duties under the TAA as a Bank Investor [(it being understood that the Assignee
shall (a) be obligated to effect Incremental Transfers in accordance with the TAA, notwithstanding
that the Assignor was not so obligated and (b) not have the right to elect the commencement of the
amortization of the Net Investment pursuant to the definition of
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This amount shall be an amount determined, calculated, allocated and otherwise
mutually agreed to by the Assignor and Assignee in their sole discretion. |
Reinvestment Termination Date, notwithstanding that the Assignor had such right) and]2
[all] [such percentage] of the Assignor’s related rights and obligations as the owner of such
Transferred Interest under the TAA and the other Transaction Documents [,in each case,]2
as of the Assignment Date.
2. The Assignor (i) represents and warrants that it is the legal and beneficial
owner of the Transferred Interest being assigned by it hereunder and that such interest is
free and clear of any Adverse Claim created by the Assignor; (ii) makes no representation and warranty
and assumes no responsibility with respect to any statements, warranties, or representations
made in or in connection with the TAA, the other Transaction Documents or any other instrument or
document furnished pursuant thereto or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the TAA, the other Transaction Documents, or any other
instrument or document related to the foregoing; and (iii) makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the Transferor, any
of the Originating Entities, any other Parent Group Member or the Collection Agent, or the
performance or observance by the Transferor, any of the Originating Entities, any other Parent
Group Member or the Collection Agent of any of their respective obligations under the TAA, the
Receivables Purchase Agreement, the other Transaction Documents, or any other instrument or
document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of the TAA, the
Receivables Purchase Agreement and such other instruments, documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption Agreement and to purchase such interest; (ii) agrees that it will,
independently and without reliance upon the Agent, any Investor, any Administrative Agent or
any of the foregoing’s respective Affiliates, or the Assignor and based on such 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 the TAA and the other Transaction Documents; (iii) appoints
and authorizes the Agent to take such action as agent on its behalf and to exercise such
powers under the TAA, the other Transaction Documents and any other instrument or document
furnished pursuant thereto as are delegated to the Agent by the terms thereof, together with
such powers as are reasonably incidental thereto and to enforce its respective rights and interests
under the TAA, the other Transaction Documents, the Receivables, the Contracts and the Related
Security; (iv) appoints and authorizes its Administrative Agent to take such action as agent
on its behalf and to exercise such powers under the TAA, the other Transaction Documents and any
other instrument or document furnished pursuant thereto as are delegated to such
Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto,
(v) agrees that it will perform in accordance with their terms all of the obligations which by the
terms of the TAA and the other Transaction Documents are required to be performed by it as the
Assignee of the Assignor; (vi) agrees that it will not institute against any Conduit Investor
any proceeding of the type referred to in Section 10.9 of the TAA at any time prior to the date
which is one year and one day after the payment in full of all Commercial Paper issued by such
Conduit
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To be included only where the Assignor is a Conduit Investor under the TAA and is assigning
all of its rights as such to its related Bank Investors in accordance with Section 9.7 of
the TAA. |
2
Investor; and (vii) specifies as its address for notices the address set forth in Section
2 of Schedule 1 hereto.
4. This Assignment and Acceptance shall be effective as of the date specified
in Section 2 of Schedule 1 hereto as of the “Assignment Date” but only after [the
Administrative Agent of the Assignor’s Related Group has given its written approval and]3 a fully
executed copy of this Assignment and Assumption has been delivered to such Administrative Agent and the
Agent.
5. Upon delivery of this Assignment and Assumption to the Agent, as of the
Assignment Date, (i) the Assignee shall have all of the rights and obligations of the Assignor
under the TAA and under the other Transaction Documents to which such Assignor is or,
immediately prior to this Assignment and Assumption, was a party with respect to such assigned
interest for all purposes of the TAA and under the other Transaction Documents to which such
assignor is, or immediately prior to this Assignment and Assumption, was a party and (ii) the
Assignor shall, to the extent provided in this Assignment and Assumption and the TAA,
relinquish its rights with respect to such assigned interest for all purposes of the TAA and
under the other Transaction Documents to which the Assignor is or, immediately prior to this
Assignment and Assumption was a party.
6. From and after [the later of] the Assignment Date [and the date of
approval of this Assignment and Assumption by the Administrative Agent for the Assignor’s
Related Group], such Administrative Agent and the Agent shall make all payments under the
TAA and the other applicable Transaction Documents in respect of the interest assigned hereby
(including, without limitation, all payments on account of the Receivables with respect
thereto) to the Assignee. The Assignor and Assignee shall make directly between themselves all
appropriate adjustments in payments under the TAA and such other applicable Transaction
Documents for periods, if any, prior to the later of the dates specified in the preceding
sentence.
7. This Assignment and Assumption shall be governed by, and construed in
accordance with, the laws of the State of New York.
8. This Assignment and Assumption 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 instrument.
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To be included only where the Assignor is a Bank Investor under the TAA. |
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IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Acceptance to be
executed by their respective officers thereunto duly authorized, as of the date first above
written.
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[ASSIGNOR] |
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By: |
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[ASSIGNEE] |
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By: |
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[Approved this day
of , 20 |
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[ADMINISTRATIVE AGENT] |
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By: |
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Title:]
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Accepted and recorded this day
of , 20 |
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WESTLB AG, NEW YORK BRANCH, as Agent |
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By: |
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Title:
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By: |
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Title:
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4
Schedule 1
to
Assignment and Acceptance
Dated , 20
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Section 1. |
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Percentage of Assignor’s Transferred Interest assigned hereunder
(without giving effect to any assignments thereof which have not
yet become effective): |
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Assignor’s Net Investment immediately prior to this assignment |
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Amount of Net Investment assigned to Assignee |
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% |
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Amount of Assignee’s remaining Net Investment |
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% |
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[Assignee’s Commitment (after giving effect hereto):]4 |
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[Assignor’s remaining Commitment (after giving effect hereto)] |
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Section 2. |
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Assignment Date: , 20 |
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Address for Notices: |
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[Name of Assignor]
[Address]
[Facsimile Number/Confirmation Number]
[Name of Assignee]
[Address]
[Facsimile Number/Confirmation Number]
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To be included only where the Assignor is a Bank Investo under the TAA. |
5
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)
3.1(g)(i) Transferor: None
3.1(g)(ii) Affiliates: The following is an excerpt from the Form 6-K filing of
Fresenius Medical Care G & Co. KGaA (the “Company”) with the Securities and Exchange Commission for
the period ending June 30, 2008:
Legal Proceedings (in thousands)
Commercial Litigation
The Company was originally formed as a result of a series of transactions it completed
pursuant to the Agreement and Plan of Reorganization dated as of February 4, 1996, by and between
X.X. Xxxxx & Co. and Xxxxxxxxx SE (the “Merger”). At the time of the Merger, a X.X. Xxxxx & Co.
subsidiary known as X.X. Xxxxx & Co.-Xxxx. had, and continues to have, significant liabilities
arising out of product-liability related litigation (including asbestos-related actions),
pre-Merger tax claims and other claims unrelated to National Medical Care, Inc. (“NMC”), which was
X.X. Xxxxx & Co.’s dialysis business prior to the Merger. In connection with the Xxxxxx, X.X. Xxxxx
& Co.-Xxxx. agreed to indemnify the Company, FMCH, and NMC against all liabilities of X.X. Xxxxx &
Co., whether relating to events occurring before or after the Merger, other than liabilities
arising from or relating to NMC’s operations. X.X. Xxxxx & Co. and certain of its subsidiaries
filed for reorganization under Chapter 11 of the U.S. Bankruptcy Code (the “Grace Chapter 11
Proceedings”) on April 2, 2001.
Prior to and after the commencement of the Grace Chapter 11 Proceedings, class action
complaints were filed against X.X. Xxxxx & Co. and FMCH by plaintiffs claiming to be creditors of
X.X. Xxxxx & Co.-Xxxx., and by the asbestos creditors’
committees on behalf of the
X.X. Xxxxx & Co.
bankruptcy estate in the Grace Chapter 11 Proceedings, alleging among other things that the Merger
was a fraudulent conveyance, violated the uniform fraudulent transfer act and constituted a
conspiracy. All such cases have been stayed and transferred to or are pending before the U.S.
District Court as part of the Grace Chapter 11 Proceedings.
In 2003, the Company reached agreement with the asbestos creditors’ committees on behalf of
the X.X. Xxxxx & Co. bankruptcy estate and X.X. Xxxxx & Co. in the matters pending in the
1
Grace Chapter 11 Proceedings for the settlement of all fraudulent conveyance and tax claims against
it and other claims related to the Company that arise out of the bankruptcy of X.X. Xxxxx & Co.
Under the terms of the settlement agreement as amended (the “Settlement Agreement”), fraudulent
conveyance and other claims raised on behalf of asbestos claimants will be dismissed with prejudice
and the Company will receive protection against existing and potential future X.X. Xxxxx & Co.
related claims, including fraudulent conveyance and asbestos claims, and indemnification against
income tax claims related to the non-NMC members of the X.X. Xxxxx & Co. consolidated tax group
upon confirmation of a X.X. Xxxxx & Co. bankruptcy reorganization plan that contains such
provisions. Under the Settlement Agreement, the Company will pay a total of $115,000 without
interest to the X.X. Xxxxx & Co. bankruptcy estate, or as otherwise directed by the Court, upon
plan confirmation. No admission of liability has been or will be made. The Settlement Agreement has
been approved by the U.S. District Court. Subsequent to the Merger, X.X. Xxxxx & Co. was involved
in a multi-step transaction involving Sealed Air Corporation (“Sealed Air,” formerly known as Grace
Holding, Inc.). The Company is engaged in litigation with Sealed Air to confirm its entitlement to
indemnification from Sealed Air for all losses and expenses incurred by the Company relating to
pre-Merger tax liabilities and Merger-related claims. Under the Settlement Agreement, upon
confirmation of a plan that satisfies the conditions of the Company’s payment obligation, this
litigation will be dismissed with prejudice.
In April 2008, X.X. Xxxxx & Co. announced an agreement in principle with the asbestos
creditors’ and equity security holders’ committees in the Grace Chapter 11 Proceedings to settle
all present and future asbestos-related personal injury claims. The agreement in principle and X.X.
Xxxxx & Co.’s related bankruptcy reorganization plan are subject to conditions including resolution
of claims of other creditors and Bankruptcy Court and District Court approvals.
On April 4, 2003, FMCH filed a suit in the U. S. District Court for the Northern District of
California, styled Fresenius USA, Inc., et al., x. Xxxxxx International Inc., et al., Case No. C
03-1431, seeking a declaratory judgment that FMCH does not infringe on patents held by Xxxxxx
International Inc. and its subsidiaries and affiliates (“Baxter”), that the patents are invalid,
and that Baxter is without right or authority to threaten or maintain suit against FMCH for alleged
infringement of Xxxxxx’x patents. In general, the alleged patents concern the use of touch screen
interfaces for hemodialysis machines. Baxter filed counterclaims against FMCH seeking more than
$140,000 in monetary damages and injunctive relief, and alleging that FMCH willfully infringed on
Xxxxxx’x patents. On July 17, 2006, a jury verdict was entered in favor of FMCH finding that all
the asserted claims of the Baxter patents are invalid as obvious and/or anticipated in light of
prior art. On February 13, 2007, the court granted Xxxxxx’x motion to set aside the jury’s verdict
in favor of FMCH and reinstated the patents and entered judgment of infringement. Following a
retrial on damages, the court entered judgment on November 6, 2007 in favor of Baxter on a jury
award of $14,300. On April 4, 2008, the court denied Xxxxxx’x motion for a new trial, established a
royalty payable to Baxter of 10% of the sales price for continuing sales of FMCH’s 2008K
hemodialysis machines and 7% of the sales price of related disposables, parts and service beginning
November 7, 2007, and enjoined sales of the 2008K machine effective January 1, 2009. We have
appealed the court’s rulings to the Court of Appeals for the Federal Circuit. We are confident that
we will prevail on appeal and have made no provision in our financial statements for any potential
liability in this matter. If we are unsuccessful on all
2
appeals, including any appeal of the royalty, the royalties payable to Baxter on the machines and
disposable supplies that are subject to the court’s order are estimated to be in the range of $2
million to $4 million per month. In the interim period until our appeal is decided, we are funding
a court-approved escrow account at the rate noted above. If we win the appeal, the escrowed funds
will be returned to us with interest. We are pursuing design modifications to the 2008K machine
that we expect will limit the scope of royalty payment exposure and permit the continued sale of
the modified 2008K machine after the January 1, 2009 injunction effective date, irrespective of the
outcome of our appeal.
Gambro Pty Limited and Gambro Lundia AB (“Gambro AB” and, together with Gambro Pty Limited,
“the Gambro Group”) commenced litigation against FMC AG & Co. KGaA’s Australian subsidiary,
Fresenius Medical Care Australia Pty Limited (“Fresenius Medical Care Australia”) regarding
infringement and damages with respect to a Gambro AB patent protecting intellectual property in
relation to a system for preparation of dialysis or replacement fluid, the Gambro Bicart device in
Australia (the “Gambro Patent”). As a result of the commercialization of a system for the
preparation of dialysis fluid based on the Fresenius Medical Care Bibag device in Australia, the
Australian courts concluded that Fresenius Medical Care Australia infringed the Gambro Patent. In
May 2008, the Gambro Group and Fresenius Medical Care Australia and FMC AG & Co. KGaA entered into
a Deed of Settlement and Release pursuant to which Xxxxxxxxx Medical Care made certain cash
payments to the Gambro Group and pursuant to which the proceedings and all claims under the Gambro
Patent, including any claims for relief for losses alleged to have been incurred after the expiry
of the Gambro Patent, were resolved.
Two patent infringement actions have been pending in Germany between Gambro Industries
(“Gambro”) on the one side and D-GmbH and FMC AG & Co. KGaA on the other side (hereinafter
collectively “Fresenius Medical Care”). Xxxxxx herein alleged patent infringements concerning a
patent on a device for the preparation of medical solutions by Fresenius Medical Care. The first
case was dismissed as being unfounded. Such decision has already become final. In the second case,
the District Court of Mannheim rendered a judgement on June 27, 2008 deciding in favor of Xxxxxx
and declaring that Fresenius Medical Care has infringed a patent claim. Accordingly, the court
ordered Xxxxxxxxx Medical Care to pay compensation (to be determined in a separate court
proceeding) for alleged infringement and to stop offering the alleged patent infringing technology
in its current form in Germany. Such verdict could be enforced provisionally by way of security to
be deposited by Xxxxxx, however the Company has received no notice that Xxxxxx has applied for
provisional enforceability, as yet. D-GmbH brought an invalidity action in the Federal German
Patent Court (“BPatG”) against Xxxxxx’s patent. This case is currently pending with the Federal
Court of Justice as the court of appeal. Fresenius Medical Care has also filed an appeal against
the District Court’s verdict. Irrespective of the outcome of the appeal, Xxxxxxxxx Medical Care
pursues to develop design modifications to the concerned devices that Fresenius Medical Care
expects will enable it to provide an alternative technical solution. In view of the pending appeal
against BPatG’s verdict and Xxxxxxxxx Medical Care’s appeal against the District Court’s verdict,
Fresenius Medical Care continues to believe that the alleged patent infringing technology does not
infringe any valid patent claims of Gambro. Therefore, the Company has made no provision in the
financial statements for any potential liability in this matter.
3
Other Litigation and Potential Exposures
Renal Care Group (“RCG”) was named as a nominal defendant in a second amended complaint filed
September 13, 2006 in the Chancery Court for the State of Tennessee Twentieth Judicial District at
Nashville against former officers and directors of RCG which purports to constitute a class action
and derivative action relating to alleged unlawful actions and breaches of fiduciary duty in
connection with the Company’s acquisition of RCG (the “RCG Acquisition”) and in connection with
alleged improper backdating and/or timing of stock option grants. The amended complaint was styled
Indiana State District Council of Laborers and Hod Carriers Pension Fund, on behalf of itself and
all others similarly situated and derivatively on behalf of RCG, Plaintiff, vs. RCG, Xxxx Xxxxxxxx,
Xxxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx,
Xxxxxxx X. XxXxxxxx, Xxxxx X. Xxxx, C. Xxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxxx Xxxxx and X. Xxxx
Xxxxxxx, Defendants. The complaint sought damages against former officers and directors and did not
state a claim for money damages directly against RCG. On August 30, 2007, this suit was dismissed
by the trial court without leave to amend. Plaintiff subsequently appealed and the matter remains
pending in the appellate court of Tennessee.
In October 2004, FMCH and its subsidiaries, including RCG (prior to the RCG Acquisition),
received subpoenas from the U.S. Department of Justice, Eastern District of New York in connection
with a civil and criminal investigation, which requires production of a broad range of documents
relating to FMCH’s and RCG’s operations, with specific attention to documents relating to
laboratory testing for parathyroid hormone (“PTH”) levels and vitamin D therapies. The Company is
cooperating with the government’s requests for information. The Company believes that it has
fulfilled all requests for information made by government investigators in this matter, and that it
has complied with applicable laws relating to PTH testing and use of vitamin D therapies.
FMCH and its subsidiaries, including RCG (prior to the RCG Acquisition), received a subpoena
from the U.S. Department of Justice, Eastern District of Missouri, in connection with a joint civil
and criminal investigation. FMCH received its subpoena in April 2005. RCG received its subpoena in
August 2005. The subpoenas require production of a broad range of documents relating to FMCH’s and
RCG’s operations, with specific attention to documents related to clinical quality programs,
business development activities, medical director compensation and physician relationships, joint
ventures, and anemia management programs, RCG’s supply company, pharmaceutical and other services
that RCG provides to patients, RCG’s relationships to pharmaceutical companies, and RCG’s purchase
of dialysis equipment from FMCH. The Office of the Inspector General of the U.S. Department of
Health and Human Services and the U.S. Attorney’s office for the Eastern District of Texas have
also confirmed that they are participating in the review of the anemia management program issues
raised by the U.S. Attorney’s office for the Eastern District of Missouri. On July 17, 2007, the
U.S. Attorney’s office filed a civil complaint against RCG and FMCH in its capacity as RCG’s
current corporate parent in United States District Court, Eastern District of Missouri. The
complaint seeks monetary damages and penalties with respect to issues arising out of the operation
of RCG’s Method II supply company through 2005, prior to the date of FMCH’s acquisition of RCG. The
4
complaint is styled United States of America ex rel. Xxxxx Xxxxxxxx et al. vs. Renal Care Group,
Renal Care Group Supply Company and FMCH. The Company believes that RCG’s operation of its Method
II supply company was in compliance with applicable law and will defend this litigation vigorously.
We will continue to cooperate in the ongoing investigation.
In May 2006, RCG received a subpoena from the U.S. Department of Justice, Southern District of
New York in connection with an investigation into RCG’s administration of its stock option programs
and practices, including the procedure under which the exercise price was established for certain
of the option grants. The subpoena required production of a broad range of documents relating to
the RCG stock option program prior to the RCG Acquisition. The Company believes that is has
fulfilled all requests for information made by government investigators in this matter, and that
RCG complied with applicable laws relating to the issuance of stock options.
In August 2007, the Sheet Metal Workers National Pension Fund filed a complaint in the United
States District Court for the Central District of California, Western Division (Los Angeles),
alleging that Amgen, Inc., the Company and DaVita Inc., marketed Amgen’s products, Epogen® and
Aranesp®, to hemodialysis patients for uses not approved by the FDA and thereby caused a putative
class of commercial insurers to pay for unnecessary prescriptions of these products. Although the
court dismissed the original allegations against the Company, it granted plaintiff leave to amend
and this litigation was subsequently consolidated with other cases against Epogen® and Aranesp®
Off-Label Marketing and Sales Practices Multidistrict Litigation and assigned to the Central
District of California. On July 2, 2008, a consolidated complaint was filed in the Multidistrict
Litigation that renews allegations against the Company and DaVita, in addition to those against
Amgen.
On November 27, 2007, the United States District Court for the Western District of Texas (El
Paso) unsealed and permitted service of two complaints previously filed under seal by a qui tam
relator, a former FMCH local clinic employee (Qui tarn is a legal provision under the United States
False Claims Act, which allows for private individuals to bring suit on behalf of the U.S. federal
government, as far as such individuals believe to have knowledge of presumable fraud committed by
third parties). The first complaint alleges that a nephrologist unlawfully employed in his practice
an assistant to perform patient care tasks that the assistant was not licensed to perform and that
Medicare billings by the nephrologist and FMCH therefore violated the False Claims Act. The second
complaint alleges that FMCH unlawfully retaliated against the relator by discharging her from
employment constructively. The United States Attorney for the Western District of Texas has
declined to intervene and to prosecute on behalf of the United States. Counsel for the nephrologist
has asserted that a criminal investigation of the relator’s allegations is continuing and has moved
the Court to stay all activity in the qui tam until the alleged criminal investigation has
concluded. FMCH has received no other notice of the pendency of any criminal investigation related
to this matter.
From time to time, the Company is a party to or may be threatened with other litigation or
arbitration, claims or assessments arising in the ordinary course of its business. Management
regularly analyzes current information including, as applicable, the Company’s defenses and
5
insurance coverage and, as necessary, provides accruals for probable liabilities for the eventual
disposition of these matters.
The Company, like other health care providers, conducts its operations under intense
government regulation and scrutiny. It must comply with regulations which relate to or govern the
safety and efficacy of medical products and supplies, the operation of manufacturing facilities,
laboratories and dialysis clinics, and environmental and occupational health and safety. The
Company must also comply with the Anti-Kickback Statute, the False Claims Act, the Xxxxx Statute,
and other federal and state fraud and abuse laws. Applicable laws or regulations may be amended, or
enforcement agencies or courts may make interpretations that differ from the Company’s
interpretations or the manner in which it conducts its business. Enforcement has become a high
priority for the federal government and some states. In addition, the provisions of the False
Claims Act authorizing payment of a portion of any recovery to the party bringing the suit
encourage private plaintiffs to commence “whistle blower” actions. By virtue of this regulatory
environment, as well as the Company’s corporate integrity agreement with the U.S. federal
government, the Company’s business activities and practices are subject to extensive review by
regulatory authorities and private parties, and continuing audits, investigative demands,
subpoenas, other inquiries, claims and litigation relating to the Company’s compliance with
applicable laws and regulations. The Company may not always be aware that an inquiry or action has
begun, particularly in the case of “whistle blower” actions, which are initially filed under court
seal.
The Company operates many facilities throughout the United States. In such a decentralized
system, it is often difficult to maintain the desired level of oversight and control over the
thousands of individuals employed by many affiliated companies. The Company relies upon its
management structure, regulatory and legal resources, and the effective operation of its compliance
program to direct, manage and monitor the activities of these employees. On occasion, the Company
may identify instances where employees, deliberately or inadvertently, have submitted inadequate or
false billings. The actions of such persons may subject the Company and its subsidiaries to
liability under the Anti-Kickback Statute, the Xxxxx Statute and the False Claims Act, among other
laws.
Physicians, hospitals and other participants in the health care industry are also subject to a
large number of lawsuits alleging professional negligence, malpractice, product liability, worker’s
compensation or related claims, many of which involve large claims and significant defense costs.
The Company has been and is currently subject to these suits due to the nature of its business and
expects that those types of lawsuits may continue. Although the Company maintains insurance at a
level which it believes to be prudent, it cannot assure that the coverage limits will be adequate
or that insurance will cover all asserted claims. A successful claim against the Company or any of
its subsidiaries in excess of insurance coverage could have a material adverse effect upon it and
the results of its operations. Any claims, regardless of their merit or eventual outcome, could
have a material adverse effect on the Company’s reputation and business.
6
The Company has also had claims asserted against it and has had lawsuits filed against it
relating to alleged patent infringements or businesses that it has acquired or divested. These
claims and suits relate both to operation of the businesses and to the acquisition and divestiture
transactions. The Company has, when appropriate, asserted its own claims, and claims for
indemnification. A successful claim against the Company or any of its subsidiaries could have a
material adverse effect upon its business, financial condition, and the results of its operations.
Any claims, regardless of their merit or eventual outcome, could have a material adverse effect on
the Company’s reputation and business.
Accrued Special Charge for Legal Matters
At December 31, 2001, the Company recorded a pre-tax special charge of $258,159 to reflect
anticipated expenses associated with the defense and resolution of pre-Merger tax claims,
Merger-related claims, and commercial insurer claims. The costs associated with the Settlement
Agreement and settlements with insurers have been charged against this accrual. With the exception
of the proposed $115,000 payment under the Settlement Agreement, all other matters included in the
special charge have been resolved. While the Company believes that its remaining accrual reasonably
estimates its currently anticipated costs related to the continued defense and resolution of this
matter, no assurances can be given that its actual costs incurred will not exceed the amount of
this accrual.
|
|
|
|
|
3.1(k)
|
|
Tradenames:
|
|
Renal Care Group |
|
|
|
|
National Nephrology Associates |
|
|
|
|
|
|
|
Mergers:
|
|
On April 2, 2004, Renal Care Group, Inc.
completed its acquisition of National Nephrology
Associates, Inc. |
|
|
|
|
|
|
|
|
|
On March 31, 2006, FMCH completed the
acquisition of Renal Care Group, Inc. |
|
|
|
|
|
3.3(e)
|
|
Collection Agent:
|
|
None |
|
|
Affiliates:
|
|
See disclosure for Section 3.1(g)(ii) above. |
7
EXHIBIT I
to
FOURTH AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
LOCATION OF RECORDS
FMS
Bio-Medical Applications of Aguadilla, Inc.
Bio-Medical Applications of Aguadilla, Inc., PUERTO RICO
BILLING GROUP, ANTILLAS WAREHOUSE & OFFICE PARK,
000 XXXXXXX XX., XXXXX 0-000, XXX XXXX, XX, 000
Bio-Medical Applications of Alabama, Inc.
Bio-Medical Applications of Alabama, Inc., MOBILE BILLING
GROUP, 0000 XXXXXXXXX XXXX XX, XXXXX 000, XXXXXX, XX,
00000
Bio-Medical Applications of Anacostia, Inc.
Bio-Medical Applications of Anacostia, Inc., STEEL CITY BILLING
GROUP, BMA PITTSBURGH, 000 XXXXXX XX., XXXXX 000,
XXXXXXXXXX, XX, 00000
Bio-Medical Applications of Arecibo, Inc.
Bio-Medical Applications of Arecibo, Inc., PUERTO RICO
BILLING GROUP, ANTILLAS WAREHOUSE & OFFICE PARK,
000 XXXXXXX XX., XXXXX 0-000, XXX XXXX, XX, 000
Bio-Medical Applications of Arkansas, Inc.
Bio-Medical Applications of Arkansas, Inc., MOBILE BILLING
GROUP, 0000 XXXXXXXXX XXXX XX, XXXXX 000, XXXXXX, XX,
00000
Bio-Medical Applications of Bayamon, Inc.
Bio-Medical Applications of Aguadilla, Inc., PUERTO RICO
BILLING GROUP, ANTILLAS WAREHOUSE & OFFICE PARK,
000 XXXXXXX XX., XXXXX 0-000, XXX XXXX, XX, 000
Bio-Medical Applications of Blue Springs, Inc.
Bio-Medical Applications of Aguadilla, Inc., PUERTO RICO
BILLING GROUP, ANTILLAS WAREHOUSE & OFFICE PARK,
000 XXXXXXX XX., XXXXX 0-000, XXX XXXX, XX, 000
Bio-Medical Applications of Caguas, Inc.
Bio-Medical Applications of Caguas, Inc., PUERTO RICO
BILLING GROUP, ANTILLAS WAREHOUSE & OFFICE PARK,
000 XXXXXXX XX., XXXXX 0-000, XXX XXXX, XX, 000
Bio-Medical Applications of Texas, Inc.
Bio-Medical Applications of Texas, Inc., ALBUQUERQUE
BILLING GROUP, 000 XXXXXXXX XX, XXXXX 000,
XXXXXXXXXXX, XX, 00000
Bio-Medical Applications of Texas, Inc., LUBBOCK BILLING
GROUP, 0000 XXXXX XXXX 000., XXXXX 000., XXXXXXX, XX,
00000
Bio-Medical Applications of Texas, Inc., NORTH TEXAS BILLING
GROUP, 0000 XXXXXXXXXX XXXXX #000, , XXXXXXXXXX,
XX, 00000
Bio-Medical Applications of Texas, Inc., SAN ANTONIO BILLING
GROUP, 0000 XXXXXXX XXXX, XXXXX 000, XXX XXXXXXX,
XX, 00000
Bio-Medical Applications of Texas, Inc., XXXXX XXXXXXX, 0000
XXXXXXXXX XXXXX, XXXXX 000, XXXXX, XX, 00000
Bio-Medical Applications of Texas, Inc., WACO BILLING
GROUP, UPTOWN PLAZA, 0000 XXXXXXXX XX., #0, XXXX,
XX, 00000
Bio-Medical Applications of the District of Columbia, Inc.
Bio-Medical Applications of the District of Columbia, Inc., STEEL
CITY BILLING GROUP, BMA PITTSBURGH, 000 XXXXXX XX.,
XXXXX 000, XXXXXXXXXX, XX, 00000
Bio-Medical Applications of Ukiah, Inc.
Bio-Medical Applications of Ukiah, Inc., PACIFIC NW BILLING
GROUP, 0000 X. XXXXX XXXXX, XXXXX 000, XXXXXX, XX,
00000
Bio-Medical Applications of Virginia, Inc.
Bio-Medical Applications of Virginia, Inc., ROANOKE BILLING
GROUP, 0000 XXXXX XXXX, , XXXXX, XX, 00000
Bio-Medical Applications of West Virginia, Inc., ROANOKE
BILLING GROUP, 0000 XXXXX XXXX, . SALEM, VA, 24153
Bio-Medical Applications of West Virginia, Inc., KENTUCKY
BILLING GROUP, 0000 XXXXXXXXX XXXX,
00XX XXXXX, XXXXXXXXXX, XX, 00000
Bio-Medical Applications of Wisconsin, Inc.
NNA of Louisiana, LLC
NNA of Louisiana, LLC, INDIANAPOLIS BILLING, 00000 XXXXX
XXXXXXXX XXXXXX, XXXXX 000, XXXXXXXXXXXX, XX, 00000
NNA of Oklahoma, L.L.C.
NNA of Oklahoma, L.L.C., XXXXX XXXXXXX, 0000 XXXXXXXXX
XXXXX, XXXXX 000, XXXXX, XX, 00000
NNA of Rhode Island, Inc.
NNA of Rhode Island, Inc., CLEVELAND BILLING, 00000
XXXXXXX XXXX XXXXXXXXX, XXXXX 000, XXXXX XXXXXXX,
XX, 00000
NNA of Toledo, Inc.
NNA of Toledo, Inc., INDIANAPOLIS BILLING, 00000 XXXXX
XXXXXXXX XXXXXX, XXXXX 000, XXXXXXXXXXXX, XX, 00000
NNA-Saint Barnabas, L.L.C.
NNA-Saint Barnabas, L.L.C., CLEVELAND BILLING, 00000
XXXXXXX XXXX XXXXXXXXX, XXXXX 000, XXXXX XXXXXXX,
XX, 00000
NNA-Saint Barnabas-Xxxxxxxxxx, L.L.C.
NNA-Saint Barnabas-Xxxxxxxxxx, L.L.C., CLEVELAND BILLING,
00000 XXXXXXX XXXX XXXXXXXXX, XXXXX 000, XXXXX
XXXXXXX, XX, 00000
Norcross Dialysis Center, LLC
Norcross Dialysis Center, LLC, INDIANAPOLIS BILLING, 00000
XXXXX XXXXXXXX XXXXXX, XXXXX 000, XXXXXXXXXXXX, XX,
00000
XXXXXX XXXXXXXXXX, P.L.L.C.
XXXXXX NEPHROLOGY, P.L.L.C., LUBBOCK BILLING GROUP,
0000 XXXXX XXXX 000,, XXXXX 000,, XXXXXXX, XX, 00000
Bio-Medical Applications of California, Inc.
Bio-Medical Applications of California, Inc., PACIFIC NW
BILLING GROUP, 0000 X. XXXXX XXXXX,
XXXXX 000,
XXXXXX, XX, 00000
Bio-Medical Applications of California, Inc., PACIFIC NW
BILLING GROUP, 0000 X. XXXXX XXXXX, XXXXX
000,
XXXXXX, XX, 00000, SOUTHERN CALIFORNIA BILLING
GROUP, 0000 XXXX XXXXXXXX XXXX XXXX, XXXXX 000,
XXXXXXXX XXXX, XX, 00000
Bio-Medical Applications of California, Inc., PACIFIC NW
BILLING GROUP, 0000 X. XXXXX XXXXX, XXXXX
000,
XXXXXX, XX, 00000, SOUTHERN CALIFORNIA BILLING
GROUP, 0000 XXXX XXXXXXXX XXXX XXXX, XXXXX 000,
XXXXXXXX XXXX, XX, 00000, SAN DIEGO BILLING GROUP,
0000 X. XXXXXX, XXXXX 000, XXXX, XX, 00000
Bio-Medical Applications of Camarillo, Inc.
Bio-Medical Applications of Camarillo, Inc., SOUTHERN
CALIFORNIA BILLING GROUP, 0000 XXXX XXXXXXXX XXXX
XXXX, XXXXX 000, XXXXXXXX XXXX, XX, 00000
Bio-Medical Applications of Capitol Hill, Inc.
Bio-Medical Applications of Capitol Hill, Inc.,
STEEL CITY
BILLING GROUP, BMA PITTSBURGH, 000 XXXXXX XX., XXXXX
000, XXXXXXXXXX, XX, 00000
Bio-Medical Applications of Carolina, Inc.
Bio-Medical Applications of Carolina, Inc., PUERTO RICO
BILLING GROUP, ANTILLAS WAREHOUSE & OFFICE PARK,
000 XXXXXXX XX., XXXXX 0-000, XXX JUAN, PR, 917
Bio-Medical Applications of Xxxxxx, Inc.
Bio-Medical Applications of Xxxxxx, Inc., SOUTHERN
CALIFORNIA BILLING GROUP, 0000 XXXX XXXXXXXX XXXX
XXXX, XXXXX 000, XXXXXXXX XXXX, XX, 00000
Bio-Medical Applications of Clinton, Inc.
Bio-Medical Applications of Clinton, Inc., FAYETTEVILLE
BILLING GROUP, 0000 XXXXXXXXX XXXX, XXXXX 000,
XXXXXXXXXXXX, XX, 00000
Bio-Medical Applications of Columbia Heights, Inc.
Bio-Medical Applications of Columbia Heights, Inc., STEEL CITY
BILLING GROUP, BMA PITTSBURGH, 000 XXXXXX XX., XXXXX
000, XXXXXXXXXX, XX, 00000
Bio-Medical Applications of Connecticut, Inc.
Bio-Medical Applications of Connecticut, Inc., NEW BEDFORD
BILLING GROUP, 000 XXXXXXXX XXXXXX, , XXX XXXXXXX,
XX, 0000
Bio-Medical Applications of Delaware, Inc.
Bio-Medical Applications of Delaware, Inc., ALLENTOWN
BILLING GROUP, 000 XXXXXX XXXX XXXXX 0, ,
XXXXXXXXX, XX, 00000
Bio-Medical Applications of Dover, Inc.
Bio-Medical Applications of Dover, Inc., NEW BEDFORD
BILLING GROUP, 000 XXXXXXXX XXXXXX,, XXX XXXXXXX,
XX, 0000
Bio-Medical Applications of Eureka, Inc.
Bio-Medical Applications of Wisconsin, Inc., UPPER MIDWEST
BILLING GROUP, 0000 XXXXXXXXXXX XXXXX, , XXXX
XXXXXX, XX, 00000
Bio-Medical Applications of Wisconsin, Inc., MICHIGAN BILLING
GROUP, 0000 XXXXXXXXX XXXX XXXXX 000, , XXXXXXXXX,
XX, 00000
Brazoria Kidney Center, Inc.
Brazoria Kidney Center, Inc., XXXXX XXXXXXX, 0000
XXXXXXXXX XXXXX, XXXXX 000, XXXXX, XX, 00000
Brevard County Dialysis, LLC
Brevard County Dialysis, LLC, INDIANAPOLIS BILLING, 00000
XXXXX XXXXXXXX XXXXXX, XXXXX 000, XXXXXXXXXXXX, XX,
00000
Xxxxxxx Xxxxxx Dialysis, LLC
Xxxxxxx County Dialysis, LLC, INDIANAPOLIS BILLING, 00000
XXXXX XXXXXXXX XXXXXX, XXXXX 000, XXXXXXXXXXXX, XX,
00000
Clermont Dialysis Center, LLC
Clermont Dialysis Center, LLC, INDIANAPOLIS BILLING, 00000
XXXXX XXXXXXXX XXXXXX, XXXXX 000, XXXXXXXXXXXX, XX,
00000
Columbus Area Renal Alliance, LLC
Columbus Area Renal Alliance, LLC, CLEVELAND BILLING,
00000 XXXXXXX XXXX XXXXXXXXX, XXXXX 000, XXXXX
XXXXXXX, XX, 00000
Conejo Valley Dialysis, Inc.
Conejo Valley Dialysis, Inc., SOUTHERN CALIFORNIA BILLING
GROUP, 0000 XXXX XXXXXXXX XXXX XXXX, XXXXX 000,
XXXXXXXX XXXX, XX, 00000
Dialysis America Georgia, LLC
Dialysis America Georgia, LLC, KNOXVILLE BILLING GROUP,
BILLING GROUP, 0000 XXXXXXX XXXX, XXXXX 000,
XXXXXXXXX, XX, 00000
Dialysis Associates of Northern New Jersey, L.L.C.
Dialysis Associates of Northern New Jersey, L.L.C.,
ALLENTOWN BILLING GROUP, 000 XXXXXX XXXX XXXXX 0,
,
XXXXXXXXX, XX, 00000
Dialysis Associates, LLC
Dialysis Associates, LLC, INDIANAPOLIS BILLING, 00000
XXXXX XXXXXXXX XXXXXX, XXXXX 000, XXXXXXXXXXXX, XX,
00000
Dialysis Centers of America - Illinois, Inc.
Dialysis Centers of America - Illinois, Inc., CHICAGO BILLING
GROUP, XXX XXXXXXXXX XXXXX, XXXXX 0, XXXXX 0000,
XXXXXXXXXXX, XX, 00000
Dialysis Centers of America - Illinois, Inc., CLEVELAND BILLING,
00000 XXXXXXX XXXX XXXXXXXXX, XXXXX 000, XXXXX
XXXXXXX, XX, 00000
Northeast Alabama Kidney Clinic, Inc.
Northeast Alabama Kidney Clinic, Inc., INDIANAPOLIS BILLING,
00000 XXXXX XXXXXXXX XXXXXX, XXXXX 000, XXXXXXXXXXXX,
XX, 00000
Northern New Jersey Dialysis, LLC
Northern New Jersey Dialysis, LLC, ALLENTOWN BILLING
GROUP, 000 XXXXXX XXXX XXXXX 0, XXXXXXXXX, XX,
00000
Physicians Dialysis Company, Inc.
Physicians Dialysis Company, Inc., CLEVELAND BILLING, 00000
XXXXXXX XXXX XXXXXXXXX, XXXXX 000, XXXXX XXXXXXX,
XX, 00000
RCG Bloomington, LLC
RCG Bloomington, LLC, INDIANAPOLIS BILLING, 00000 XXXXX
XXXXXXXX XXXXXX, XXXXX 000, XXXXXXXXXXXX, XX, 00000
RCG East Texas, LLP
RCG East Texas, LLP, XXXXX XXXXXXX, 0000 XXXXXXXXX
XXXXX, XXXXX 000, XXXXX, XX, 00000
RCG Indiana, L.L.C.
RCG Indiana, L.L.C., INDIANAPOLIS BILLING, 00000 XXXXX
XXXXXXXX XXXXXX, XXXXX 000. INDIANAPOLIS, IN, 46290
RCG Irving, LLP
RCG Irving, LLP, XXXXX XXXXXXX, 0000 XXXXXXXXX XXXXX,
XXXXX 000, XXXXX, XX, 00000
RCG Xxxxxx, LLC
RCG Xxxxxx, LLC, INDIANAPOLIS BILLING, 00000 XXXXX
XXXXXXXX XXXXXX, XXXXX 000, XXXXXXXXXXXX, XX, 00000
RCG Memphis East, LLC
RCG Memphis East, LLC, INDIANAPOLIS BILLING, 00000
XXXXX XXXXXXXX XXXXXX, XXXXX 000, XXXXXXXXXXXX, XX,
00000
RCG Mississippi, Inc.
RCG Mississippi, Inc., INDIANAPOLIS BILLING, 00000 XXXXX
XXXXXXXX XXXXXX, XXXXX 000, XXXXXXXXXXXX, XX, 00000
RCG Mississippi, Inc., XXXXX XXXXXXX, 0000 XXXXXXXXX XXXXX,
XXXXX 000, XXXXX, XX, 00000
RCG Mississippi, Inc., MESA BILLING, 0000 XXXXX XXXX
XXXXX, XXXXX 000, XXXX, XX, 00000
Bio-Medical Applications of Eureka, Inc., PACIFIC NW BILLING
GROUP, 0000 X. XXXXX XXXXX, XXXXX
000, XXXXXX, XX,
00000
Bio-Medical Applications of Fayetteville, Inc.
Bio-Medical Applications of Fayetteville, Inc., FAYETTEVILLE
BILLING GROUP, 0000 XXXXXXXXX XXXX,
XXXXX 000,
XXXXXXXXXXXX, XX, 00000
Bio-Medical Applications of Florida, Inc.
Bio-Medical Applications of Florida, Inc., ORLANDO BILLING
GROUP, BMA ORLANDO, INC., 0000 X
XXXXX XXXX 000,
XXXXX 000, XXXXXXXX, XX, 00000
, TAMPA BILLING GROUP, BMA TAMPA INC., 0000 XXXX
XXXXXX XXXXXX, XXXXX X, XXXXX, XX, 00000
Bio-Medical Applications of Glendora, Inc.
Bio-Medical Applications of Glendora, Inc., SOUTHERN
CALIFORNIA BILLING GROUP, 0000 XXXX XXXXXXXX
XXXX
XXXX, XXXXX 000, XXXXXXXX XXXX, XX, 00000
Bio-Medical Applications of Guayama, Inc.
Bio-Medical Applications of Guayama, Inc., PUERTO RICO
BILLING GROUP, ANTILLAS WAREHOUSE & OFFICE
PARK,
000 XXXXXXX XX., XXXXX 0-000, XXX XXXX, XX, 000
Bio-Medical Applications of Humacao, Inc.
Bio-Medical Applications of Humacao, Inc., PUERTO RICO
BILLING GROUP, ANTILLAS WAREHOUSE & OFFICE
PARK,
000 XXXXXXX XX., XXXXX 0-000, XXX XXXX, XX, 000
Bio-Medical Applications of Illinois, Inc.
Bio-Medical Applications of Illinois, Inc., CHICAGO
BILLING
GROUP, XXX XXXXXXXXX XXXXX, XXXXX 0, XXXXX 0000,
XXXXXXXXXXX, XX, 00000
Bio-Medical Applications of Indiana, Inc.
Bio-Medical Applications of Indiana, Inc., MICHIGAN BILLING
GROUP, 0000 XXXXXXXXX XXXX, XXXXX 000,
XXXXXXXXX,
XX, 00000
Bio-Medical Applications of Maine, Inc.
Bio-Medical Applications of Maine, Inc., NEW BEDFORD
BILLING GROUP, 000 XXXXXXXX XXXXXX, , XXX
XXXXXXX,
XX, 0000
Bio-Medical Applications of Manchester, Inc.
Dialysis Centers of America - Illinois, Inc., INDIANAPOLIS
BILLING, 00000 XXXXX XXXXXXXX XXXXXX,
XXXXX 000,
XXXXXXXXXXXX, XX, 00000
Dialysis Management Corporation
Dialysis Management Corporation, XXXXX XXXXXXX, 0000
XXXXXXXXX XXXXX, XXXXX 000, XXXXX, XX,
00000
Dialysis Services of Cincinnati, Inc.
Dialysis Services of Cincinnati, Inc., NORTHERN OHIO BILLING
GROUP, 0000 XXXXXXXXX XXXX, XXXXX 000,
XXXXXXXXX,
XX, 00000
Dialysis Specialists of Topeka, Inc.
Dialysis Specialists of Topeka, Inc., ARIZONA BILLING GROUP,
0000 X. XXXXXX, XXXXX 000, XXXX, XX, 00000
Dialysis Specialists of Tulsa, Inc.
Dialysis Specialists of Tulsa, Inc., LUBBOCK BILLING GROUP,
0000 XXXXX XXXX 000,, XXXXX 000,,
XXXXXXX, XX, 00000
Xxxxxxx County Dialysis, LLC
Xxxxxxx County Dialysis, LLC, INDIANAPOLIS BILLING, 00000
XXXXX XXXXXXXX XXXXXX, XXXXX 000,
XXXXXXXXXXXX, XX,
00000
Du Page Dialysis, Ltd.
Du Page Dialysis, Ltd., CHICAGO BILLING GROUP, ONE
XXXXXXXXX DRIVE, TOWER 0, XXXXX 0000,
XXXXXXXXXXX, XX, 00000
Everest Healthcare Indiana, Inc.
Everest Healthcare Indiana, Inc., KENTUCKY BILLING GROUP,
0000 XXXXXXXXX XXXX, 00XX XXXXX, XXXXXXXXXX, XX,
00000
Everest Healthcare Indiana, Inc., NORTHERN OHIO BILLING
GROUP, 0000 XXXXXXXXX XXXX, XXXXX 000, XXXXXXXXX,
XX, 00000
Everest Healthcare Indiana, Inc., MICHIGAN BILLING GROUP,
0000 XXXXXXXXX XXXX XXXXX 000, , XXXXXXXXX, XX,
00000
Everest Healthcare Ohio, Inc.
Everest Healthcare Ohio, Inc., NORTHERN OHIO BILLING
GROUP, 0000 XXXXXXXXX XXXX, XXXXX 000,
XXXXXXXXX,
XX, 00000
RCG University Division, Inc.
RCG University Division, Inc., CLEVELAND BILLING, 00000
XXXXXXX XXXX XXXXXXXXX, XXXXX 000, XXXXX
XXXXXXX,
XX, 00000
Renal Care Group Alaska, Inc.
Renal Care Group Alaska, Inc., MESA BILLING, 0000 XXXXX
XXXX XXXXX, XXXXX 000, XXXX, XX, 00000
Renal Care Group East, Inc.
Renal Care Group East, Inc., CLEVELAND BILLING, 00000
XXXXXXX XXXX XXXXXXXXX, XXXXX 000, XXXXX
XXXXXXX,
XX, 00000
Renal Care Group Northwest, Inc.
Renal Care Group Northwest, Inc., MESA BILLING, 0000 XXXXX
XXXX XXXXX, XXXXX 000, XXXX, XX, 00000
Renal Care Group of the Midwest, Inc.
Renal Care Group of the Midwest, Inc., XXXXX XXXXXXX, 0000
XXXXXXXXX XXXXX, XXXXX 000, XXXXX, XX,
00000
Renal Care Group of the Ozarks, LLC
Renal Care Group of the Ozarks, LLC, XXXXX XXXXXXX, 0000
XXXXXXXXX XXXXX, XXXXX 000, XXXXX, XX,
00000
Renal Care Group of the South, Inc.
Renal Care Group of the South, Inc., INDIANAPOLIS BILLING,
00000 XXXXX XXXXXXXX XXXXXX, XXXXX 000,
XXXXXXXXXXXX,
XX, 00000
Renal Care Group of the Southeast, Inc.
Renal Care Group of the Southeast, Inc., INDIANAPOLIS BILLING,
00000 XXXXX XXXXXXXX XXXXXX, XXXXX
000, XXXXXXXXXXXX,
XX, 00000
Renal Care Group South New Mexico, LLC
Renal Care Group South New Mexico, LLC, XXXXX XXXXXXX, 0000
XXXXXXXXX XXXXX, XXXXX 000, XXXXX, XX,
00000
Renal Care Group Southwest, L.P.
Bio-Medical Applications of Manchester, Inc. , NEW BEDFORD
BILLING GROUP, 000 XXXXXXXX XXXXXX,, XXX
XXXXXXX,
XX, 0000
Bio-Medical Applications of Maryland, Inc.
Bio-Medical Applications of Maryland, Inc., STEEL CITY BILLING
GROUP, BMA PITTSBURGH, 000 XXXXXX
XX., XXXXX 000,
XXXXXXXXXX, XX, 00000
Bio-Medical Applications of Massachusetts, Inc.
Bio-Medical Applications of Massachusetts, Inc., NEW
BEDFORD BILLING GROUP, 000 XXXXXXXX XXXXXX, ,
XXX
XXXXXXX, XX, 0000
Bio-Medical Applications of Mayaguez, Inc.
Bio-Medical Applications of Mayaguez, Inc., PUERTO RICO
BILLING GROUP, ANTILLAS WAREHOUSE & OFFICE
PARK,
000 XXXXXXX XX., XXXXX 0-000, XXX XXXX, XX, 000
Bio-Medical Applications of Michigan, Inc.
Bio-Medical Applications of Michigan, Inc., MICHIGAN BILLING
GROUP, 0000 XXXXXXXXX XXXX XXXXX
000, , XXXXXXXXX,
XX, 00000
Bio-Medical Applications of Minnesota, Inc.
Bio-Medical Applications of Minnesota, Inc., UPPER MIDWEST
BILLING GROUP, 0000 XXXXXXXXXXX XXXXX,,
XXXX
XXXXXX, XX, 00000
Bio-Medical Applications of Mission Hills, Inc.
Bio-Medical Applications of Mission Hills, Inc., SOUTHERN
CALIFORNIA BILLING GROUP, 0000 XXXX
XXXXXXXX XXXX
XXXX, XXXXX 000, XXXXXXXX XXXX, XX, 00000
Bio-Medical Applications of Mississippi, Inc.
Bio-Medical Applications of Mississippi, Inc., CRESCENT CITY
BILLING GROUP, 0000 X. XXXXXXXX XXXX,
XXXXX 000,
XXXXXXXX, XX, 00000
Bio-Medical Applications of Missouri, Inc.
Bio-Medical Applications of Missouri, Inc., ARIZONA BILLING
GROUP, 0000 X. XXXXXX, XXXXX 000,
XXXX, XX, 00000
Bio-Medical Applications of MLK, Inc.
Bio-Medical Applications of MLK, Inc., STEEL CITY BILLING
GROUP, BMA PITTSBURGH, 000 XXXXXX XX.,
XXXXX 000,
XXXXXXXXXX, XX, 00000
Bio-Medical Applications of Nevada, Inc.
Everest Healthcare Rhode Island, Inc.
Everest Healthcare Rhode Island, Inc., NEW BEDFORD
BILLING GROUP, 000 XXXXXXXX XXXXXX, , XXX
XXXXXXX,
XX, 0000
Everest Healthcare Texas, L.P.
Everest Healthcare Texas, L.P., WACO BILLING GROUP,
UPTOWN PLAZA, 0000 XXXXXXXX XX., #0, XXXX, XX,
00000
Xxxxxxx Dialysis Clinic, Inc.
Xxxxxxx Dialysis Clinic, Inc., XXXXX XXXXXXX, 0000
XXXXXXXXX XXXXX, XXXXX 000, XXXXX, XX,
00000
Fort Xxxxx Regional Dialysis Center, Inc.
Fort Xxxxx Regional Dialysis Center, Inc., XXXXX XXXXXXX, 0000
XXXXXXXXX XXXXX, XXXXX 000, XXXXX,
XX, 00000
Four State Regional Dialysis Center, Inc.
Four State Regional Dialysis Center, Inc., XXXXX XXXXXXX, 0000
XXXXXXXXX XXXXX, XXXXX 000, XXXXX,
XX, 00000
Fresenius Medical Care Dialysis Services - Oregon, LLC
Fresenius Medical Care Dialysis Services - Oregon, LLC,
PACIFIC NW BILLING GROUP, 0000 X. XXXXX
XXXXX, XXXXX
000, XXXXXX, XX, 00000
Fresenius Medical Care Dialysis Services Colorado LLC
Fresenius Medical Care Dialysis Services Colorado LLC,
ALBUQUERQUE BILLING GROUP, 000 XXXXXXXX XX,
XXXXX
000, XXXXXXXXXXX, XX, 00000
Gulf Region Mobile Dialysis, Inc.
Gulf Region Mobile Dialysis, Inc., SAN ANTONIO BILLING
GROUP, 0000 XXXXXXX XXXX, XXXXX 000, XXX
XXXXXXX,
XX, 00000
Haemo-Stat, Inc.
Haemo-Stat, Inc., SOUTHERN CALIFORNIA BILLING GROUP,
0000 XXXX XXXXXXXX XXXX XXXX, XXXXX 000,
XXXXXXXX
XXXX, XX, 00000
Xxxxx Xxxxxxxx Center, LLC
Xxxxx Xxxxxxxx Center, LLC, INDIANAPOLIS BILLING, 00000
XXXXX XXXXXXXX XXXXXX, XXXXX 000,
XXXXXXXXXXXX, XX,
00000
Renal Care Group Southwest, L.P., XXXXX XXXXXXX, 0000
XXXXXXXXX XXXXX, XXXXX 000, XXXXX, XX,
00000
Renal Care Group Texas, Inc.
Renal Care Group Texas, Inc., XXXXX XXXXXXX, 0000
XXXXXXXXX XXXXX, XXXXX 000, XXXXX, XX, 00000
Renal Care Group Westlake, LLC
Renal Care Group Westlake, LLC, CLEVELAND BILLING, 00000
XXXXXXX XXXX XXXXXXXXX, XXXXX 000, XXXXX
XXXXXXX,
XX, 00000
Renal Care Group, Inc.
Renal Care Group, Inc., XXXXX XXXXXXX, 0000 XXXXXXXXX
XXXXX, XXXXX 000, XXXXX, XX, 00000
Renex Dialysis Clinic of Bridgeton, Inc.
Renex Dialysis Clinic of Bridgeton, Inc., XXXXX XXXXXXX, 0000
XXXXXXXXX XXXXX, XXXXX 000, XXXXX,
XX, 00000
Renex Dialysis Clinic of Creve Coeur, Inc.
Renex Dialysis Clinic of Creve Coeur, Inc., XXXXX XXXXXXX, 0000
XXXXXXXXX XXXXX, XXXXX 000, XXXXX,
XX, 00000
Renex Dialysis Clinic of Doylestown, Inc.
Renex Dialysis Clinic of Doylestown, Inc., CLEVELAND BILLING,
00000 XXXXXXX XXXX XXXXXXXXX, XXXXX
000, XXXXX
XXXXXXX, XX, 00000
Renex Dialysis Clinic of Maplewood, Inc.
Renex Dialysis Clinic of Maplewood, Inc., XXXXX XXXXXXX, 0000
XXXXXXXXX XXXXX, XXXXX 000, XXXXX,
XX, 00000
Renex Dialysis Clinic of Orange, Inc.
Renex Dialysis Clinic of Orange, Inc., CLEVELAND BILLING,
00000 XXXXXXX XXXX XXXXXXXXX, XXXXX
000, XXXXX
XXXXXXX, XX, 00000
Renex Dialysis Clinic of Penn Hills, Inc.
Renex Dialysis Clinic of Penn Hills, Inc., CLEVELAND BILLING,
00000 XXXXXXX XXXX XXXXXXXXX, XXXXX
000, XXXXX
XXXXXXX, XX, 00000
Renex Dialysis Clinic of Philadelphia, Inc.
Bio-Medical Applications of Nevada, Inc., MESA BILLING, 0000
XXXXX XXXX XXXXX, XXXXX 000, XXXX,
XX, 00000
Bio-Medical Applications of New Hampshire, Inc.
Bio-Medical Applications of New Hampshire, Inc., NEW
BEDFORD BILLING GROUP, 000 XXXXXXXX XXXXXX, ,
XXX
XXXXXXX, XX, 0000
Bio-Medical Applications of New Jersey, Inc.
Bio-Medical Applications of New Jersey, Inc., ALLENTOWN
BILLING GROUP, 000 XXXXXX XXXX XXXXX 0, ,
XXXXXXXXX, XX, 00000
Bio-Medical Applications of New Mexico, Inc.
Bio-Medical Applications of New Mexico, Inc., ALBUQUERQUE
BILLING GROUP, 000 XXXXXXXX XX, XXXXX
000,
XXXXXXXXXXX, XX, 00000
Bio-Medical Applications of North Carolina, Inc.
Bio-Medical Applications of North Carolina, Inc., FAYETTEVILLE
BILLING GROUP, 0000 XXXXXXXXX XXXX,
XXXXX 000,
XXXXXXXXXXXX, XX, 00000
Bio-Medical Applications of Northeast D.C., Inc.
Bio-Medical Applications of Northeast D.C., Inc.,
STEEL CITY
BILLING GROUP, BMA PITTSBURGH, 000 XXXXXX XX., XXXXX
000, XXXXXXXXXX, XX, 00000
Bio-Medical Applications of Oakland, Inc.
Bio-Medical Applications of Oakland, Inc., PACIFIC NW BILLING
GROUP, 0000 X. XXXXX XXXXX, XXXXX
000, XXXXXX, XX,
00000
Bio-Medical Applications of Ohio, Inc.
Bio-Medical Applications of Ohio, Inc., KENTUCKY BILLING
GROUP, 0000 XXXXXXXXX XXXX, 00XX XXXXX,
XXXXXXXXXX, XX, 00000
Bio-Medical Applications of Oklahoma, Inc.
Bio-Medical Applications of Oklahoma, Inc., LUBBOCK BILLING
GROUP, 0000 XXXXX XXXX 000,, XXXXX
000,, XXXXXXX, XX,
00000
Bio-Medical Applications of Pennsylvania, Inc.
Bio-Medical Applications of Pennsylvania, Inc., ALLENTOWN
BILLING GROUP, 000 XXXXXX XXXX. SUITE 2, ,
ALLENTOWN, PA, 18109
Bio-Medical Applications of Pennsylvania, Inc., ALLENTOWN
BILLING GROUP, 000 XXXXXX XXXX. SUITE 2, ,
ALLENTOWN, PA, 18109, STEEL CITY BILLING GROUP, BMA
PITTSBURGH, 000 XXXXXX XX., XXXXX 000,
XXXXXXXXXX, XX,
00000
Xxxxxx Dialysis Clinic, LLC
Xxxxxx Dialysis Clinic, LLC, INDIANAPOLIS BILLING, 00000
XXXXX XXXXXXXX XXXXXX, XXXXX 000,
XXXXXXXXXXXX, XX,
00000
Home Dialysis of Muhlenburg County, Inc.
Home Dialysis of Muhlenburg County, Inc., KENTUCKY BILLING
GROUP, 0000 XXXXXXXXX XXXX, 00XX XXXXX,
XXXXXXXXXX, XX, 00000
Jefferson County Dialysis, Inc.
Jefferson County Dialysis, Inc., XXXXX XXXXXXX, 0000
XXXXXXXXX XXXXX, XXXXX 000, XXXXX, XX,
00000
KDCO, Inc.
KDCO, Inc., XXXXX XXXXXXX, 0000 XXXXXXXXX XXXXX, XXXXX
000, XXXXX, XX, 00000
Kentucky Renal Care Group, LLC
Kentucky Renal Care Group, LLC, INDIANAPOLIS BILLING,
00000 XXXXX XXXXXXXX XXXXXX, XXXXX 000,
XXXXXXXXXXXX, XX, 00000
Xxxxxx Dialysis, Inc.
Xxxxxx Dialysis, Inc., XXXXX XXXXXXX, 0000 XXXXXXXXX
XXXXX, XXXXX 000, XXXXX, XX, 00000
Little Rock Dialysis, Inc.
Little Rock Dialysis, Inc., XXXXX XXXXXXX, 0000 XXXXXXXXX
XXXXX, XXXXX 000, XXXXX, XX, 00000
Maumee Dialysis Services, LLC
Maumee Dialysis Services, LLC, INDIANAPOLIS BILLING,
00000 XXXXX XXXXXXXX XXXXXX, XXXXX 000,
XXXXXXXXXXXX, XX, 00000
Miami Regional Dialysis Center, Inc.
Miami Regional Dialysis Center, Inc., XXXXX XXXXXXX, 0000
XXXXXXXXX XXXXX, XXXXX 000, XXXXX, XX,
00000
Michigan Home Dialysis Center, Inc.
Michigan Home Dialysis Center, Inc., INDIANAPOLIS BILLING,
00000 XXXXX XXXXXXXX XXXXXX, XXXXX 000,
XXXXXXXXXXXX, XX, 00000
Renex Dialysis Clinic of Philadelphia, Inc., CLEVELAND BILLING,
00000 XXXXXXX XXXX XXXXXXXXX, XXXXX
000, XXXXX
XXXXXXX, XX, 00000
Renex Dialysis Clinic of Pittsburgh, Inc.
Renex Dialysis Clinic of Pittsburgh, Inc., CLEVELAND BILLING,
00000 XXXXXXX XXXX XXXXXXXXX, XXXXX
000, XXXXX
XXXXXXX, XX, 00000
Renex Dialysis Clinic of Shaler, Inc.
Renex Dialysis Clinic of Shaler, Inc., CLEVELAND BILLING, 00000
XXXXXXX XXXX XXXXXXXXX, XXXXX 000,
XXXXX XXXXXXX,
XX, 00000
Renex Dialysis Clinic of South Georgia, Inc.
Renex Dialysis Clinic of South Georgia, Inc., INDIANAPOLIS
BILLING, 00000 XXXXX XXXXXXXX XXXXXX,
XXXXX 000,
XXXXXXXXXXXX, XX, 00000
Renex Dialysis Clinic of St. Louis, Inc.
Renex Dialysis Clinic of St. Louis, Inc., XXXXX XXXXXXX, 0000
XXXXXXXXX XXXXX, XXXXX 000, XXXXX,
XX, 00000
Renex Dialysis Clinic of Union, Inc.
Renex Dialysis Clinic of Union, Inc., XXXXX XXXXXXX, 0000
XXXXXXXXX XXXXX, XXXXX 000, XXXXX, XX,
00000
Renex Dialysis Clinic of University City, Inc.
Renex Dialysis Clinic of University City, Inc., XXXXX XXXXXXX, 0000
XXXXXXXXX XXXXX, XXXXX 000,
XXXXX, XX, 00000
Renex Dialysis Clinic of Woodbury, Inc.
Renex Dialysis Clinic of Woodbury, Inc., CLEVELAND BILLING,
00000 XXXXXXX XXXX XXXXXXXXX, XXXXX
000, XXXXX
XXXXXXX, XX, 00000
Renex Dialysis Facilities, Inc., XXXXX XXXXXXX, 0000 XXXXXXXXX
XXXXX, XXXXX 000, XXXXX, XX, 00000
Renex Dialysis Facilities, Inc., MESA BILLING, 0000 XXXXX
XXXX XXXXX, XXXXX 000, XXXX, XX, 00000
San Diego Dialysis Services, Inc.
San Diego Dialysis Services, Inc., SAN DIEGO BILLING GROUP,
0000 X. XXXXXX, XXXXX 000, XXXX, XX,
00000
Santa Xxxxxxx Community Dialysis Center, Inc.
Bio-Medical Applications of Ponce, Inc., PUERTO RICO BILLING
GROUP, ANTILLAS WAREHOUSE & OFFICE
PARK, 000
XXXXXXX XX., XXXXX 0-000, XXX XXXX, XX, 000
Bio-Medical Applications of Puerto Rico, Inc.
Bio-Medical Applications of Puerto Rico, Inc., PUERTO RICO
BILLING GROUP, ANTILLAS WAREHOUSE &
OFFICE PARK,
000 XXXXXXX XX., XXXXX 0-000, XXX XXXX, XX, 000
Bio-Medical Applications of Rio Piedras, Inc.
Bio-Medical Applications of Rio Piedras, Inc., PUERTO RICO
BILLING GROUP, ANTILLAS WAREHOUSE &
OFFICE PARK,
000 XXXXXXX XX., XXXXX 0-000, XXX XXXX, XX, 000
Bio-Medical Applications of San Antonio, Inc.
Bio-Medical Applications of San Antonio, Inc., SAN ANTONIO
BILLING GROUP, 0000 XXXXXXX XXXX, XXXXX
000, XXX
XXXXXXX, XX, 00000
Bio-Medical Applications of San German, Inc.
Bio-Medical Applications of San German, Inc., PUERTO RICO
BILLING GROUP, ANTILLAS WAREHOUSE &
OFFICE PARK,
000 XXXXXXX XX., XXXXX 0-000, XXX XXXX, XX, 000
Bio-Medical Applications of San Xxxx, Inc.
Bio-Medical Applications of San Xxxx, Inc., PUERTO RICO
BILLING GROUP, ANTILLAS WAREHOUSE & OFFICE
PARK,
000 XXXXXXX XX., XXXXX 0-000, XXX XXXX, XX, 000
Bio-Medical Applications of South Carolina, Inc.
Bio-Medical Applications of South Carolina, Inc., FAYETTEVILLE
BILLING GROUP, 0000 XXXXXXXXX XXXX, XXXXX 000,
XXXXXXXXXXXX, XX, 00000
Bio-Medical Applications of South Carolina, Inc., FLORENCE
BILLING GROUP, 000 X. XXXXXX XXXX., , XXXXXXXX, XX,
00000
Bio-Medical Applications of South Carolina, Inc., MACON
BILLING GROUP, 0000 XXXX XXXX, XXXXX X, XXXXX, XX,
00000
Bio-Medical Applications of Tennessee, Inc.
Bio-Medical Applications of Tennessee, Inc., KNOXVILLE
BILLING GROUP, BILLING GROUP, 0000 XXXXXXX
XXXX,
XXXXX 000, XXXXXXXXX, XX, 00000
Bio-Medical Applications of Tennessee, Inc., OCALA BILLING
GROUP, BMA OCALA, INC., 0000 XX 00XX
XXXX, XXXXX 000,
XXXXX, XX, 00000
National Medical Care, Inc.
National Medical Care, Inc., CHICAGO BILLING GROUP, ONE
XXXXXXXXX DRIVE, TOWER 0, XXXXX 0000,
XXXXXXXXXXX, XX, 00000
National Medical Care, Inc., MICHIGAN BILLING GROUP, 0000
XXXXXXXXX XXXX, XXXXX 000, XXXXXXXXX, XX,
00000
National Medical Care, Inc., KNOXVILLE BILLING GROUP,
BILLING GROUP, 0000 XXXXXXX XXXX, XXXXX
000,
XXXXXXXXX, XX, 00000
National Medical Care, Inc., OCALA BILLING GROUP, BMA
OCALA, INC., 0000 XX 00XX XXXX, XXXXX 000, XXXXX, XX,
00000
National Medical Care, Inc., ORLANDO BILLING GROUP, BMA
ORLANDO, INC., 0000 X XXXXX XXXX 000, XXXXX 000,
XXXXXXXX, XX, 00000
National Medical Care, Inc., ALLENTOWN BILLING GROUP,
000 XXXXXX XXXX XXXXX 0, , XXXXXXXXX, XX,
00000
National Medical Care, Inc., TAMPA BILLING GROUP, BMA
TAMPA INC., 0000 XXXX XXXXXX XXXXXX,
XXXXX X,
XXXXX, XX, 00000
National Nephrology Associates of Texas, L.P.
National Nephrology Associates of Texas, L.P., XXXXX XXXXXXX,
0000 XXXXXXXXX XXXXX, XXXXX 000,
XXXXX, XX, 00000
NNA of Alabama, Inc.
NNA of Alabama, Inc., INDIANAPOLIS BILLING, 00000 XXXXX
XXXXXXXX XXXXXX, XXXXX 000, XXXXXXXXXXXX,
XX, 00000
NNA of East Orange, L.L.C.
NNA of East Orange, L.L.C., CLEVELAND BILLING, 00000
XXXXXXX XXXX XXXXXXXXX, XXXXX 000, XXXXX
XXXXXXX, XX, 00000
NNA of Florida, LLC
NNA of Florida, LLC, INDIANAPOLIS BILLING, 00000 XXXXX
XXXXXXXX XXXXXX, XXXXX 000, XXXXXXXXXXXX,
XX, 00000
NNA of Georgia, Inc.
NNA of Georgia, Inc., INDIANAPOLIS BILLING, 00000 XXXXX
XXXXXXXX XXXXXX, XXXXX 000, XXXXXXXXXXXX,
XX, 00000
Santa Xxxxxxx Community Dialysis Center, Inc., SOUTHERN
CALIFORNIA BILLING GROUP, 0000 XXXX
XXXXXXXX XXXX
XXXX, XXXXX 000, XXXXXXXX XXXX, XX, 00000
Smyrna Dialysis Center, LLC
Smyrna Dialysis Center, LLC, INDIANAPOLIS BILLING, 00000
XXXXX XXXXXXXX XXXXXX, XXXXX 000,
XXXXXXXXXXXX, XX,
00000
SSKG, Inc.
SSKG, Inc., INDIANAPOLIS BILLING, 00000 XXXXX XXXXXXXX
XXXXXX, XXXXX 000, XXXXXXXXXXXX, XX, 00000
STAT Dialysis Corporation
STAT Dialysis Corporation, XXXXX XXXXXXX, 0000 XXXXXXXXX
XXXXX, XXXXX 000, XXXXX, XX, 00000
Stone Mountain Dialysis Center, LLC
Stone Mountain Dialysis Center, LLC, INDIANAPOLIS BILLING,
00000 XXXXX XXXXXXXX XXXXXX, XXXXX 000,
XXXXXXXXXXXX,
XX, 00000
Stuttgart Dialysis, LLC
Stuttgart Dialysis, LLC, XXXXX XXXXXXX, 0000 XXXXXXXXX
XXXXX, XXXXX 000, XXXXX, XX, 00000
Xxxxxxx Dialysis Center, LLC
Xxxxxxx Dialysis Center, LLC, WACO BILLING GROUP, UPTOWN
PLAZA, 0000 XXXXXXXX XX., #0, XXXX, XX,
00000
Three Rivers Dialysis Services, LLC
Three Rivers Dialysis Services, LLC, INDIANAPOLIS BILLING,
00000 XXXXX XXXXXXXX XXXXXX, XXXXX 000,
XXXXXXXXXXXX,
XX, 00000
West Palm Dialysis, LLC
West Palm Dialysis, LLC, INDIANAPOLIS BILLING, 00000 XXXXX
XXXXXXXX XXXXXX, XXXXX 000,
XXXXXXXXXXXX, XX, 00000
Xxxxxxx Dialysis, Inc.
Bio-Medical Applications of Tennessee, Inc., ORLANDO BILLING
GROUP, BMA ORLANDO, INC., 0000 X
XXXXX XXXX 000,
XXXXX 000, XXXXXXXX, XX, 00000
NNA of Xxxxxxxx, X.X.X.
NNA of Xxxxxxxx, L.L.C., CLEVELAND BILLING, 00000
XXXXXXX XXXX XXXXXXXXX, XXXXX 000, XXXXX
XXXXXXX,
XX, 00000
Xxxxxxx Dialysis, Inc., XXXXX XXXXXXX, 0000 XXXXXXXXX
XXXXX, XXXXX 000, XXXXX, XX, 00000
WSKC Dialysis Services, Inc.
WSKC Dialysis Services, Inc., CHICAGO BILLING GROUP, ONE
XXXXXXXXX DRIVE, TOWER 0, XXXXX 0000,
XXXXXXXXXXX,
XX, 00000
RTG
Fresenius USA, Inc
0000 Xxxxxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fresenius USA Home Dialysis, Inc
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fresenius USA Marketing, Inc
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fresenius USA of Puerto Rico, Inc
PO Box 191690
San Xxxx, PR 00919
Life Assist Medical Products, Inc
PO Box 191690
San Xxxx, PR 00919
Spectra East
0 Xxxx Xxxx
Xxxxxxxxx, XX 00000
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Spectra Renal Research, LLC
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fresenius USA Manufacturing
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fresenius Medical Care Canada
00 Xxxxxxx Xxxxx 000
Xxxxxxxx Xxxx, XX
X0X 0X0
Distriduter D’Equipment Medicaux Haemotec, Inc
000 Xxxxxx Xxxxxxx
Xxxxxxxx-Xxxxxx, XX
X0X 0X0
Xxxxx xx Xxxxxxx S.A. de C.V.
Brecha E-99 Sur Parque Ind. Reynosa
Apartado Postal # 326
Xxxxxxx, Tamps.
Mexico, CP 88780
Pharr Warehouse
0000 X. Xxxxxxxx Xxx. Ste. C
Pharr, TX 78577
Renal Solutions, Inc — Fresenius Medical Care Holdings, Inc (legal entity)
000 Xxxxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Sorb Technologies (manufacturing site)
0000 XX 00xx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Location of Records — Exhibit I — Fresenius Medical Services
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2008 Transferring Affiliates |
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FMS Billing Group |
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Billing Group Address |
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Billing Group Address 2 |
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Billing Group City |
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Billing Group State |
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Billing Group Zip |
Bio-Medical Applications of Aguadilla, Inc. |
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PUERTO RICO BILLING GROUP |
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ANTILLAS WAREHOUSE & OFFICE PARK |
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000 XXXXXXX XX., XXXXX 0-000 |
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XXX XXXX |
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PR |
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00917 |
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Bio-Medical Applications of Aguadilla, Inc., PUERTO RICO BILLING GROUP, |
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ANTILLAS WAREHOUSE & OFFICE PARK, 000 XXXXXXX XX., XXXXX 0-000, |
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SAN JUAN, PR, 917 |
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Bio-Medical Applications of Alabama, Inc. |
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MOBILE BILLING GROUP |
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0000 XXXXXXXXX XXXX XX |
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XXXXX 000 |
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XXXXXX |
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XX |
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00000 |
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Bio-Medical Applications of Alabama, Inc., MOBILE BILLING GROUP, 6420 |
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HILLCREST PARK CT, SUITE 000, XXXXXX, XX, 00000 |
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KNOXVILLE BILLING GROUP |
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0000 XXXXXXX XXXX, XXXXX 000 |
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XXXXXXXXX |
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XX |
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00000 |
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Bio-Medical Applications of Anacostia, Inc. |
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STEEL CITY BILLING GROUP |
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BMA PITTSBURGH |
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000 XXXXXX XX., XXXXX 000 |
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XXXXXXXXXX |
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XX |
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00000 |
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Bio-Medical Applications of Anacostia, Inc., STEEL CITY BILLING GROUP, |
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BMA PITTSBURGH, 000 XXXXXX XX., XXXXX 000, XXXXXXXXXX, XX, 00000 |
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Bio-Medical Applications of Arecibo, Inc. |
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PUERTO RICO BILLING GROUP |
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ANTILLAS WAREHOUSE & OFFICE PARK |
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000 XXXXXXX XX., XXXXX 0-000 |
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XXX XXXX |
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PR |
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00917 |
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Bio-Medical Applications of Arecibo, Inc., PUERTO RICO BILLING GROUP, |
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ANTILLAS WAREHOUSE & OFFICE PARK, 000 XXXXXXX XX., XXXXX 0-000, |
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SAN JUAN, PR, 917 |
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Bio-Medical Applications of Arkansas, Inc. |
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MOBILE BILLING GROUP |
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0000 XXXXXXXXX XXXX XX |
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XXXXX 000 |
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XXXXXX |
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XX |
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00000 |
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Bio-Medical Applications of Arkansas, Inc., MOBILE BILLING GROUP, 6420 |
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HILLCREST PARK CT, SUITE 000, XXXXXX, XX, 00000 |
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Bio-Medical Applications of Bayamon, Inc. |
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PUERTO RICO BILLING GROUP |
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ANTILLAS WAREHOUSE & OFFICE PARK |
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000 XXXXXXX XX., XXXXX 0-000 |
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XXX XXXX |
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PR |
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00917 |
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Bio-Medical Applications of Aguadilla, Inc., PUERTO RICO BILLING GROUP, |
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ANTILLAS WAREHOUSE & OFFICE PARK, 000 XXXXXXX XX., XXXXX 0-000, |
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SAN JUAN, PR, 917 |
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Bio-Medical Applications of Blue Springs, Inc. |
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ARIZONA BILLING GROUP |
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0000 X. XXXXXX |
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XXXXX 000 |
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XXXX |
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XX |
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00000 |
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Bio-Medical Applications of Aguadilla, Inc., PUERTO RICO BILLING GROUP, |
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ANTILLAS WAREHOUSE & OFFICE PARK, 000 XXXXXXX XX., XXXXX 0-000, |
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SAN JUAN, PR, 917 |
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Bio-Medical Applications of Caguas, Inc. |
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PUERTO RICO BILLING GROUP |
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ANTILLAS WAREHOUSE & OFFICE PARK |
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000 XXXXXXX XX., XXXXX 0-000 |
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XXX XXXX |
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PR |
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00917 |
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Bio-Medical Applications of Caguas, Inc., PUERTO RICO BILLING GROUP, |
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ANTILLAS WAREHOUSE & OFFICE PARK, 000 XXXXXXX XX., XXXXX 0-000, |
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SAN JUAN, PR, 917 |
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Bio-Medical Applications of California, Inc. |
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PACIFIC NW BILLING GROUP |
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0000 X. XXXXX XXXXX |
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XXXXX 000 |
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XXXXXX |
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XX |
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00000 |
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Bio-Medical Applications of California, Inc., PACIFIC NW BILLING GROUP, |
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0000 X. XXXXX XXXXX, XXXXX 000, XXXXXX, XX, 00000 |
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SOUTHERN CALIFORNIA BILLING GROUP |
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0000 XXXX XXXXXXXX XXXX XXXX |
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XXXXX 000 |
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XXXXXXXX XXXX |
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XX |
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00000 |
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Bio-Medical Applications of California, Inc., PACIFIC NW BILLING GROUP, |
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0000 X. XXXXX XXXXX, XXXXX 000, XXXXXX, XX, 00000, SOUTHERN |
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CALIFORNIA BILLING GROUP, 0000 XXXX XXXXXXXX XXXX XXXX, XXXXX |
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216, THOUSAND OAKS, CA, 91362 |
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SAN DIEGO BILLING GROUP |
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0000 X. XXXXXX |
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XXXXX 000 |
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XXXX |
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XX |
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00000 |
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Bio-Medical Applications of California, Inc., PACIFIC NW BILLING GROUP, |
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0000 X. XXXXX XXXXX, XXXXX 000, XXXXXX, XX, 00000, SOUTHERN |
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CALIFORNIA BILLING GROUP, 0000 XXXX XXXXXXXX XXXX XXXX, XXXXX |
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216, THOUSAND OAKS, CA, 91362, SAN DIEGO BILLING GROUP, 2917 X. |
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XXXXXX, SUITE 000, XXXX, XX, 00000 |
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Bio-Medical Applications of Camarillo, Inc. |
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SOUTHERN CALIFORNIA BILLING GROUP |
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0000 XXXX XXXXXXXX XXXX XXXX |
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XXXXX 000 |
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XXXXXXXX XXXX |
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XX |
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00000 |
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Bio-Medical Applications of Camarillo, Inc., SOUTHERN CALIFORNIA BILLING |
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GROUP, 0000 XXXX XXXXXXXX XXXX XXXX, XXXXX 000, XXXXXXXX |
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OAKS, CA, 91362 |
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Bio-Medical Applications of Capitol Hill, Inc. |
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STEEL CITY BILLING GROUP |
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BMA PITTSBURGH |
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000 XXXXXX XX., XXXXX 000 |
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XXXXXXXXXX |
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XX |
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00000 |
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Bio-Medical Applications of Capitol Hill, Inc., STEEL CITY BILLING GROUP, |
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BMA PITTSBURGH, 000 XXXXXX XX., XXXXX 000, XXXXXXXXXX, XX, 00000 |
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Bio-Medical Applications of Carolina, Inc. |
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PUERTO RICO BILLING GROUP |
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ANTILLAS WAREHOUSE & OFFICE PARK |
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000 XXXXXXX XX., XXXXX 0-000 |
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XXX XXXX |
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PR |
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00917 |
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Bio-Medical Applications of Carolina, Inc., PUERTO RICO BILLING GROUP, |
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ANTILLAS WAREHOUSE & OFFICE PARK, 000 XXXXXXX XX., XXXXX 0-000, |
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SAN JUAN, PR, 917 |
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Bio-Medical Applications of Xxxxxx, Inc. |
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SOUTHERN CALIFORNIA BILLING GROUP |
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0000 XXXX XXXXXXXX XXXX XXXX |
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XXXXX 000 |
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XXXXXXXX XXXX |
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XX |
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00000 |
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Bio-Medical Applications of Xxxxxx, Inc., SOUTHERN CALIFORNIA BILLING |
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GROUP, 0000 XXXX XXXXXXXX XXXX XXXX, XXXXX 000, XXXXXXXX |
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OAKS, CA, 91362 |
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Bio-Medical Applications of Clinton, Inc. |
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FAYETTEVILLE BILLING GROUP |
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0000 XXXXXXXXX XXXX |
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XXXXX 000 |
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XXXXXXXXXXXX |
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XX |
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00000 |
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Bio-Medical Applications of Clinton, Inc., FAYETTEVILLE BILLING GROUP, |
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0000 XXXXXXXXX XXXX, XXXXX 000, XXXXXXXXXXXX, XX, 00000 |
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Bio-Medical Applications of Columbia Heights, Inc. |
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STEEL CITY BILLING GROUP |
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BMA PITTSBURGH |
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000 XXXXXX XX., XXXXX 000 |
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XXXXXXXXXX |
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XX |
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00000 |
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Bio-Medical Applications of Columbia Heights, Inc., STEEL CITY BILLING |
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GROUP, BMA PITTSBURGH, 000 XXXXXX XX., XXXXX 000, XXXXXXXXXX, |
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PA, 15205 |
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2008 Transferring Affiliates |
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FMS Billing Group |
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Billing Group Address |
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Billing Group Address 2 |
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Billing Group City |
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Billing Group State |
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Billing Group Zip |
Bio-Medical Applications of Connecticut, Inc. |
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NEW BEDFORD BILLING GROUP |
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000 XXXXXXXX XXXXXX |
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XXX XXXXXXX |
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XX |
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00000 |
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Bio-Medical Applications of Connecticut, Inc., NEW BEDFORD BILLING |
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GROUP, 000 XXXXXXXX XXXXXX, XXX XXXXXXX, XX, 0000 |
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Bio-Medical Applications of Delaware, Inc. |
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ALLENTOWN BILLING GROUP |
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000 XXXXXX XXXX XXXXX 0 |
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XXXXXXXXX |
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XX |
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00000 |
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Bio-Medical Applications of Delaware, Inc., ALLENTOWN BILLING GROUP, 861 |
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MARCON BLVD SUITE 2,, ALLENTOWN, PA, 18109 |
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Bio-Medical Applications of Dover, Inc. |
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NEW BEDFORD BILLING GROUP |
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700 PLEASANT STREET |
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NEW BEDFORD |
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MA |
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02740 |
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Bio-Medical Applications of Dover, Inc., NEW BEDFORD BILLING GROUP, 700 |
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PLEASANT STREET,, NEW BEDFORD, MA, 2740 |
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Bio-Medical Applications of Eureka, Inc. |
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PACIFIC NW BILLING GROUP |
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4560 S. COACH DRIVE |
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SUITE 100 |
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TUCSON |
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AZ |
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85714 |
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Bio-Medical Applications of Eureka, Inc., PACIFIC NW BILLING GROUP, 4560 |
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S. COACH DRIVE, SUITE 100, TUCSON, AZ, 85714 |
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Bio-Medical Applications of Fayetteville, Inc. |
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FAYETTEVILLE BILLING GROUP |
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4200 MORGANTON ROAD |
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SUITE 300 |
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FAYETTEVILLE |
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NC |
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28314 |
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Bio-Medical Applications of Fayetteville, Inc., FAYETTEVILLE BILLING |
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GROUP, 4200 MORGANTON ROAD, SUITE 300, FAYETTEVILLE, NC, 28314 |
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Bio-Medical Applications of Florida, Inc. |
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ORLANDO BILLING GROUP |
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BMA ORLANDO, INC. |
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1155 W STATE ROAD 434, SUITE 125 |
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LONGWOOD |
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FL |
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32750 |
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Bio-Medical Applications of Florida, Inc., ORLANDO BILLING GROUP, BMA |
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ORLANDO, INC., 1155 W STATE ROAD 434, SUITE 125, LONGWOOD, FL,
32750 |
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OCALA BILLING GROUP |
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BMA OCALA, INC. |
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1308 SE 25TH LOOP, SUITE 102 |
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OCALA |
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FL |
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34471 |
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TAMPA BILLING GROUP |
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BMA TAMPA INC. |
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5625 WEST WATERS AVENUE, SUITE |
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TAMPA |
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FL |
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33634 |
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TAMPA BILLING GROUP, BMA TAMPA INC., 5625 WEST WATERS |
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AVENUE, SUITE A, TAMPA, FL, 33634 |
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Bio-Medical Applications of Fremont, Inc. |
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PACIFIC NW BILLING GROUP |
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4560 S. COACH DRIVE |
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SUITE 100 |
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TUCSON |
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AZ |
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85714 |
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Bio-Medical Applications of Fremont, Inc., PACIFIC NW BILLING GROUP, 4560 |
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S. COACH DRIVE, SUITE 100, TUCSON, AZ, 85714 |
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Bio-Medical Applications of Fresno, Inc. |
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PACIFIC NW BILLING GROUP |
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4560 S. COACH DRIVE |
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SUITE 100 |
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TUCSON |
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AZ |
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85714 |
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Bio-Medical Applications of Fresno, Inc., PACIFIC NW BILLING GROUP, 4560 |
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S. COACH DRIVE, SUITE 100, TUCSON, AZ, 85714 |
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Bio-Medical Applications of Georgia, Inc. |
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KNOXVILLE BILLING GROUP |
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BILLING GROUP |
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1512 COLEMAN ROAD, SUITE 308 |
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KNOXVILLE |
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TN |
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37919 |
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MACON BILLING GROUP |
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1515 BASS ROAD |
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SUITE B |
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MACON |
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GA |
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31210 |
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Bio-Medical Applications of Glendora, Inc. |
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SOUTHERN CALIFORNIA BILLING GROUP |
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1337 EAST THOUSAND OAKS BLVD |
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SUITE 216 |
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THOUSAND OAKS |
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CA |
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91362 |
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Bio-Medical Applications of Glendora, Inc., SOUTHERN CALIFORNIA BILLING |
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GROUP, 1337 EAST THOUSAND OAKS BLVD, SUITE 216, THOUSAND |
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OAKS, CA, 91362 |
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Bio-Medical Applications of Guayama, Inc. |
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PUERTO RICO BILLING GROUP |
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ANTILLAS WAREHOUSE & OFFICE PARK |
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461 FRANCIA ST., SUITE 1-401 |
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SAN JUAN |
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PR |
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00917 |
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Bio-Medical Applications of Guayama, Inc., PUERTO RICO BILLING GROUP, |
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ANTILLAS WAREHOUSE & OFFICE PARK, 461 FRANCIA ST., SUITE 1-401, |
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SAN JUAN, PR, 917 |
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Bio-Medical Applications of Humacao, Inc. |
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PUERTO RICO BILLING GROUP |
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ANTILLAS WAREHOUSE & OFFICE PARK |
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461 FRANCIA ST., SUITE 1-401 |
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SAN JUAN |
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PR |
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00917 |
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Bio-Medical Applications of Humacao, Inc., PUERTO RICO BILLING GROUP, |
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ANTILLAS WAREHOUSE & OFFICE PARK, 461 FRANCIA ST., SUITE 1-401, |
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SAN JUAN, PR, 917 |
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Bio-Medical Applications of Illinois, Inc. |
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CHICAGO BILLING GROUP |
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ONE WESTBROOK DRIVE |
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TOWER 1, SUITE 1000 |
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WESTCHESTER |
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IL |
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60154 |
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Bio-Medical Applications of Illinois, Inc., CHICAGO BILLING GROUP, ONE |
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WESTBROOK DRIVE, TOWER 1, SUITE 1000, WESTCHESTER, IL, 60154 |
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Bio-Medical Applications of Indiana, Inc. |
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MICHIGAN BILLING GROUP |
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3500 MASSILLON ROAD |
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SUITE 230 |
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UNIONTOWN |
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OH |
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44685 |
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Bio-Medical Applications of Indiana, Inc., MICHIGAN BILLING GROUP, 3500 |
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MASSILLON ROAD, SUITE 230, UNIONTOWN, OH, 44685 |
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Bio-Medical Applications of Maine, Inc. |
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NEW BEDFORD BILLING GROUP |
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700 PLEASANT STREET |
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NEW BEDFORD |
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MA |
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02740 |
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Bio-Medical Applications of Maine, Inc., NEW BEDFORD BILLING GROUP, 700 |
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PLEASANT STREET, , NEW BEDFORD, MA, 2740 |
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Bio-Medical Applications of Manchester, Inc. |
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NEW BEDFORD BILLING GROUP |
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700 PLEASANT STREET |
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NEW BEDFORD |
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MA |
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02740 |
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Bio-Medical Applications of Manchester, Inc., NEW BEDFORD BILLING |
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GROUP, 700 PLEASANT STREET, , NEW BEDFORD, MA, 2740 |
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Bio-Medical Applications of Maryland, Inc. |
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STEEL CITY BILLING GROUP |
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BMA PITTSBURGH |
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190 BILMAR DR., SUITE 375 |
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PITTSBURGH |
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PA |
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15205 |
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Bio-Medical Applications of Maryland, Inc., STEEL CITY BILLING GROUP, BMA |
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PITTSBURGH, 190 BILMAR DR., SUITE 375, PITTSBURGH, PA, 15205 |
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Bio-Medical Applications of Massachusetts, Inc. |
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NEW BEDFORD BILLING GROUP |
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700 PLEASANT STREET |
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NEW BEDFORD |
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MA |
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02740 |
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Bio-Medical Applications of Massachusetts, Inc., NEW BEDFORD BILLING |
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GROUP, 700 PLEASANT STREET., NEW BEDFORD, MA, 2740 |
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Bio-Medical Applications of Mayaguez, Inc. |
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PUERTO RICO BILLING GROUP |
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ANTILLAS WAREHOUSE & OFFICE PARK |
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461 FRANCIA ST., SUITE 1-401 |
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SAN JUAN |
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PR |
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00917 |
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2008 Transferring Affiliates |
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FMS Billing Group |
|
Billing Group Address |
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Billing Group Address 2 |
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Billing Group City |
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Billing Group State |
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Billing Group Zip |
Bio-Medical Applications of Mayaguez, Inc., PUERTO RICO BILLING GROUP, |
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ANTILLAS WAREHOUSE 4 OFFICE PARK, 461 FRANCIA ST., SUITE 1-401, |
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SAN JUAN, PR, 917 |
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Bio-Medical Applications of Michigan, Inc. |
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MICHIGAN BILLING GROUP |
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3500 MASSILLON ROAD SUITE 230 |
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UNIONTOWN |
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OH |
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44685 |
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Bio-Medical Applications of Michigan, Inc., MICHIGAN BILLING GROUP, 3500 |
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MASSILLON ROAD SUITE 230, , UNIONTOWN, OH, 44685 |
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Bio-Medical Applications of Minnesota, Inc. |
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UPPER MIDWEST BILLING GROUP |
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9120 SPRINGBROOK DRIVE |
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COON RAPIDS |
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MN |
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55433 |
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Bio-Medical Applications of Minnesota, Inc., UPPER MIDWEST BILLING |
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GROUP, 9120 SPRINGBROOK DRIVE, , COON RAPIDS, MN, 55433 |
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Bio-Medical Applications of Mission Hills, Inc. |
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SOUTHERN CALIFORNIA BILLING GROUP |
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1337 EAST THOUSAND OAKS BLVD |
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SUITE 216 |
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THOUSAND OAKS |
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CA |
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91362 |
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Bio-Medical Applications of Mission Hills, Inc., SOUTHERN CALIFORNIA |
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BILLING GROUP, 1337 EAST THOUSAND OAKS BLVD, SUITE 216, |
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THOUSAND OAKS, CA, 91362 |
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Bio-Medical Applications of Mississippi, Inc. |
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CRESCENT CITY BILLING GROUP |
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3850 N. CAUSEWAY BLVD |
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SUITE 700 |
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METAIRIE |
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LA |
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70002 |
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Bio-Medical Applications of Mississippi, Inc., CRESCENT CITY BILLING |
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GROUP, 3850 N. CAUSEWAY BLVD, SUITE 700, METAIRIE, LA, 70002 |
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Bio-Medical Applications of Missouri, Inc. |
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ARIZONA BILLING GROUP |
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2917 S. DOBSON |
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SUITE 101 |
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MESA |
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AZ |
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85202 |
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Bio-Medical Applications of Missouri, Inc., ARIZONA BILLING GROUP, 2917 S, |
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DOBSON, SUITE 101, MESA, AZ, 65202 |
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SAN ANTONIO BILLING GROUP |
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6100 BANDERA ROAD |
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SUITE 601 |
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SAN ANTONIO |
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TX |
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78238 |
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Bio-Medical Applications of MLK, Inc. |
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STEEL CITY BILLING GROUP |
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BMA PITTSBURGH |
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190 BILMAR DR., SUITE 375 |
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PITTSBURGH |
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PA |
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15205 |
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Bio-Medical Applications of MLK, Inc., STEEL CITY BILLING GROUP, BMA |
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PITTSBURGH, 190 BILMAR DR., SUITE 375, PITTSBURGH, PA, 15205 |
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Bio-Medical Applications of Nevada, Inc. |
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MESA BILLING |
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1750 SOUTH MESA DRIVE |
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SUITE 110 |
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MESA |
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AZ |
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85210 |
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Bio-Medical Applications of Nevada, Inc., MESA BILLING, 1750 SOUTH MESA |
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DRIVE, SUITE 110, MESA, AZ, 85210 |
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Bio-Medical Applications of New Hampshire, Inc. |
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NEW BEDFORD BILLING GROUP |
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700 PLEASANT STREET |
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NEW BEDFORD |
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MA |
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02740 |
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Bio-Medical Applications of New Hampshire, Inc., NEW BEDFORD BILLING |
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GROUP, 700 PLEASANT STREET, , NEW BEDFORD, MA, 2740 |
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Bio-Medical Applications of New Jersey, Inc. |
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ALLENTOWN BILLING GROUP |
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861 MARCON BLVD SUITE 2 |
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ALLENTOWN |
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PA |
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18109 |
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Bio-Medical Applications of New Jersey, Inc., ALLENTOWN BILLING GROUP, |
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861 MARCON BLVD SUITE 2, , ALLENTOWN, PA, 18109 |
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Bio-Medical Applications of New Mexico, Inc. |
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ALBUQUERQUE BILLING GROUP |
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909 VIRGINIA NE |
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SUITE 112 |
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ALBUQUERQUE |
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NM |
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87108 |
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Bio-Medical Applications of New Mexico, Inc., ALBUQUERQUE BILLING |
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GROUP, 909 VIRGINIA NE, SUITE 112, ALBUQUERQUE, NM, 87108 |
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LUBBOCK BILLING GROUP |
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4747 SOUTH LOOP 289, |
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SUITE 120. |
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LUBBOCK |
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TX |
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79424 |
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Bio-Medical Applications of North Carolina, Inc. |
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FAYETTEVILLE BILLING GROUP |
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4200 MORGANTON ROAD |
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SUITE 300 |
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FAYETTEVILLE |
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NC |
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28314 |
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Bio-Medical Applications of North Carolina, Inc., FAYETTEVILLE BILLING |
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GROUP, 4200 MORGANTON ROAD, SUITE 300, FAYETTEVILLE, NC, 28314 |
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FLORENCE BILLING GROUP |
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216 N. DOZIER BLVD. |
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FLORENCE |
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SC |
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29501 |
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Bio-Medical Applications of Northeast D.C., Inc. |
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STEEL CITY BILLING GROUP |
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BMA PITTSBURGH |
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190 BILMAR DR., SUITE 375 |
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PITTSBURGH |
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PA |
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15205 |
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Bio-Medical Applications of Northeast D.C., Inc., STEEL CITY BILLING GROUP, |
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BMA PITTSBURGH, 190 BILMAR DR., SUITE 375, PITTSBURGH, PA, 15205 |
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Bio-Medical Applications of Oakland, Inc. |
|
PACIFIC NW BILLING GROUP |
|
4560 S. COACH DRIVE |
|
SUITE 100 |
|
TUCSON |
|
AZ |
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|
85714 |
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Bio-Medical Applications of Oakland, Inc., PACIFIC NW BILLING GROUP, 4560 |
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S. COACH DRIVE, SUITE 100, TUCSON, AZ, 85714 |
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Bio-Medical Applications of Ohio, Inc. |
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KENTUCKY BILLING GROUP |
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6100 DUTCHMANS LANE |
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12TH FLOOR |
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LOUISVILLE |
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KY |
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40205 |
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Bio-Medical Applications of Ohio, Inc., KENTUCKY BILLING GROUP, 6100 |
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DUTCHMANS LANE, 12TH FLOOR, LOUISVILLE, KY, 40205 |
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NORTHERN OHIO BILLING GROUP |
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3500 MASSILLON ROAD |
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SUITE 280 |
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UNIONTOWN |
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OH |
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44685 |
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Bio-Medical Applications of Oklahoma, Inc. |
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LUBBOCK BILLING GROUP |
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4747 SOUTH LOOP 289, |
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SUITE 120, |
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LUBBOCK |
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TX |
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79424 |
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Bio-Medical Applications of Oklahoma, Inc., LUBBOCK BILLING GROUP, 4747 |
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SOUTH LOOP 289., SUITE 120., LUBBOCK, TX, 79424 |
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Bio-Medical Applications of Pennsylvania, Inc. |
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ALLENTOWN BILLING GROUP |
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861 MARCON BLVD. SUITE 2 |
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ALLENTOWN |
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PA |
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18109 |
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Bio-Medical Applications of Pennsylvania, Inc., ALLENTOWN BILLING GROUP, |
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861 MARCON BLVD, SUITE 2, , ALLENTOWN, PA, 18109 |
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STEEL CITY BILLING GROUP |
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BMA PITTSBURGH |
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190 BILMAR DR., SUITE 375 |
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PITTSBURGH |
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PA |
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15205 |
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Bio-Medical Applications of Pennsylvania, Inc., ALLENTOWN BILLING GROUP, |
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861 MARCON BLVD, SUITE 2, , ALLENTOWN, PA, 18109, STEEL CITY |
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BILLING GROUP, BMA PITTSBURGH, 190 BILMAR DR., SUITE 375, |
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PITTSBURGH, PA, 15205 |
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Bio-Medical Applications of Ponce, Inc. |
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PUERTO RICO BILLING GROUP |
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ANTILLAS WAREHOUSE & OFFICE PARK |
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461 FRANCIA ST., SUITE 1-401 |
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SAN JUAN |
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PR |
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00917 |
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Bio-Medical Applications of Ponce, Inc., PUERTO RICO BILLING GROUP, |
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ANTILLAS WAREHOUSE & OFFICE PARK, 461 FRANCIA ST., SUITE 1-401, |
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SAN JUAN, PR, 917 |
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Bio-Medical Applications of Puerto Rica, Inc. |
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PUERTO RICO BILLING GROUP |
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ANTILLAS WAREHOUSE & OFFICE PARK |
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461 FRANCIA ST., SUITE 1-401 |
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SAN JUAN |
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PR |
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00917 |
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2008 Transferring Affiliates |
|
FMS Billing Group |
|
Billing Group Address |
|
Billing Group Address 2 |
|
Billing Group City |
|
Billing Group State |
|
Billing Group Zip |
Bio-Medical Applications of Puerto Rico, Inc., PUERTO RICO BILLING GROUP, |
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ANTILLAS WAREHOUSE 4 OFFICE PARK, 461 FRANCIA ST., SUITE 1-401, |
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SAN JUAN, PR, 917 |
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Bio-Medical Applications of Rio Piedras, Inc. |
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PUERTO RICO BILLING GROUP |
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ANTILLAS WAREHOUSE & OFFICE PARK |
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461 FRANCIA ST., SUITE 1-401 |
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SAN JUAN |
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PR |
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00917 |
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Bio-Medical Applications of Rio Piedras, Inc., PUERTO RICO BILLING GROUP, |
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ANTILLAS WAREHOUSE & OFFICE PARK, 461 FRANCIA ST., SUITE 1-401, |
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SAN JUAN, PR, 917 |
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Bio-Medical Applications of San Antonio, Inc. |
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SAN ANTONIO BILLING GROUP |
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6100 BANDERA ROAD |
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SUITE 601 |
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SAN ANTONIO |
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TX |
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78238 |
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Bio-Medical Applications of San Antonio, Inc., SAN ANTONIO BILLING GROUP, |
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6100 BANDERA ROAD, SUITE 601, SAN ANTONIO, TX, 78236 |
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Bio-Medical Applications of San German, Inc. |
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PUERTO RICO BILLING GROUP |
|
ANTILLAS WAREHOUSE & OFFICE PARK |
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461 FRANCIA ST., SUITE 1-401 |
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SAN JUAN |
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PR |
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00917 |
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Bio-Medical Applications of San German, Inc., PUERTO RICO BILLING |
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GROUP, ANTILLAS WAREHOUSE & OFFICE PARK, 461 FRANCIA ST., SUITE |
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1-401, SAN JUAN, PR, 917 |
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Bio-Medical Applications of San Juan, Inc. |
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PUERTO RICO BILLING GROUP |
|
ANTILLAS WAREHOUSE & OFFICE PARK |
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461 FRANCIA ST., SUITE 1-401 |
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SAN JUAN |
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PR |
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00917 |
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Bio-Medical Applications of San Juan, Inc., PUERTO RICO BILLING GROUP, |
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ANTILLAS WAREHOUSE & OFFICE PARK, 461 FRANCIA ST., SUITE 1-401, |
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SAN JUAN, PR, 917 |
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Bio-Medical Applications of South Carolina, Inc. |
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FAYETTEVILLE BILLING GROUP |
|
4200 MORGANTON ROAD |
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SUITE 300 |
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FAYETTEVILLE |
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NC |
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28314 |
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Bio-Medical Applications of South Carolina, Inc., FAYETTEVILLE BILLING |
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GROUP, 4200 MORGANTON ROAD, SUITE 300, FAYETTEVILLE, NC, 28314 |
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Bio-Medical Applications of South Carolina, Inc. |
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FLORENCE BILLING GROUP |
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218 N. DOZIER BLVD. |
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FLORENCE |
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SC |
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29501 |
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Bio-Medical Applications of South Carolina, Inc., FLORENCE BILLING GROUP, |
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218 N. DOZIER BLVD., , FLORENCE, SC, 29501 |
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Bio-Medical Applications of South Carolina, Inc. |
|
MACON BILLING GROUP |
|
1515 BASS ROAD |
|
SUITE B |
|
MACON |
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GA |
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31210 |
|
Bio-Medical Applications of South Carolina, Inc., MACON BILLING GROUP, |
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1515 BASS ROAD, SUITE B, MACON, GA, 31210 |
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Bio-Medical Applications of Southeast Washington, Inc. |
|
STEEL CITY BILLING GROUP |
|
BMA PITTSBURGH |
|
190 BILMAR DR., SUITE 375 |
|
PITTSBURGH |
|
PA |
|
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15205 |
|
Bio-Medical Applications of Southeast Washington, Inc., STEEL CITY BILLING |
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GROUP, BMA PITTSBURGH, 190 BILMAR DR., SUITE 375, PITTSBURGH, |
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PA, 15205 |
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Bio-Medical Applications of Tennessee, Inc. |
|
KNOXVILLE BILLING GROUP |
|
BILLING GROUP |
|
1512 COLEMAN ROAD, SUITE 308 |
|
KNOXVILLE |
|
TN |
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37919 |
|
Bio-Medical Applications of Tennessee, Inc., KNOXVILLE BILLING GROUP, |
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BILLING GROUP, 1512 COLEMAN ROAD, SUITE 308, KNOXVILLE, TN, 37919 |
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Bio-Medical Applications of Tennessee, Inc. |
|
OCALA BILLING GROUP |
|
BMA OCALA, INC. |
|
1308 SE 25TH LOOP, SUITE 102 |
|
OCALA |
|
FL |
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34471 |
|
Bio-Medical Applications of Tennessee, Inc., OCALA BILLING GROUP, BMA |
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OCALA, INC., 1308 SE 25TH LOOP, SUITE 102, OCALA, FL, 34471 |
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Bio-Medical Applications of Tennessee, Inc. |
|
ORLANDO BILLING GROUP |
|
BMA ORLANDO, INC. |
|
1155 W STATE ROAD 434, SUITE 125 |
|
LONGWOOD |
|
FL |
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32750 |
|
Bio-Medical Applications of Tennessee, Inc., ORLANDO BILLING GROUP, BMA |
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ORLANDO, INC., 1155 W STATE ROAD 434, SUITE 125, LONGWOOD, FL, |
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32750 |
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Bio-Medical Applications of Texas, Inc. |
|
ALBUQUERQUE BILLING GROUP |
|
909 VIRGINIA NE |
|
SUITE 112 |
|
ALBUQUERQUE |
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NM |
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87108 |
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Bio-Medical Applications of Texas, Inc., ALBUQUERQUE BILLING GROUP, 909 |
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VIRGINIA NE, SUITE 112, ALBUQUERQUE, NM, 87108 |
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Bio-Medical Applications of Texas, Inc. |
|
LUBBOCK BILLING GROUP |
|
4747 SOUTH LOOP 289, |
|
SUITE 120, |
|
LUBBOCK |
|
TX |
|
|
79424 |
|
Bio-Medical Applications of Texas, Inc., LUBBOCK BILLING GROUP, 4747 |
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SOUTH LOOP 289., SUITE 120., LUBBOCK, TX, 79424 |
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Bio-Medical Applications of Texas, Inc. |
|
NORTH TEXAS BILLING GROUP |
|
1485 RICHARDSON DRIVE #100 |
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RICHARDSON |
|
TX |
|
|
75080 |
|
Bio-Medical Applications of Texas, Inc., NORTH TEXAS BILLING GROUP, 1485 |
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RICHARDSON DRIVE #100., RICHARDSON, TX, 75080 |
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Bio-Medical Applications of Texas, Inc. |
|
SAN ANTONIO BILLING GROUP |
|
6100 BANDERA ROAD |
|
SUITE 601 |
|
SAN ANTONIO |
|
TX |
|
|
78238 |
|
Bio-Medical Applications of Texas, Inc., SAN ANTONIO BILLING GROUP, 6100 |
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BANDERA ROAD, SUITE 601, SAN ANTONIO, TX, 78238 |
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Bio-Medical Applications of Texas, Inc. |
|
TYLER BILLING |
|
3910 BROOKSIDE DRIVE |
|
SUITE 100 |
|
TYLER |
|
TX |
|
|
75701 |
|
Bio-Medical Applications of Texas, Inc., TYLER BILLING, 3910 BROOKSIDE |
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DRIVE, SUITE 100, TYLER, TX, 75701 |
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Bio-Medical Applications of Texas, Inc. |
|
WACO BILLING GROUP |
|
UPTOWN PLAZA |
|
1110 RICHLAND DR., #3 |
|
WACO |
|
TX |
|
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76710 |
|
Bio-Medical Applications of Texas, Inc., WACO BILLING GROUP, UPTOWN |
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PLAZA, 1110 RICHLAND DR., #3, WACO, TX, 76710 |
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Bio-Medical Applications of the District of Columbia, Inc. |
|
STEEL CITY BILLING GROUP |
|
BMA PITTSBURGH |
|
190 BILMAR DR., SUITE 375 |
|
PITTSBURGH |
|
PA |
|
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15205 |
|
Bio-Medical Applications of the District of Columbia, Inc., STEEL CITY BILLING |
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GROUP, BMA PITTSBURGH, 190 BILMAR DR., SUITE 375, PITTSBURGH, |
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PA, 15205 |
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Bio-Medical Applications of Ukiah, Inc. |
|
PACIFIC NW BILLING GROUP |
|
4560 S. COACH DRIVE |
|
SUITE 100 |
|
TUCSON |
|
AZ |
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85714 |
|
Bio-Medical Applications of Ukiah, Inc., PACIFIC NW BILLING GROUP, 4560 S, |
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COACH DRIVE, SUITE 100, TUCSON, AZ, 85714 |
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|
2008 Transferring Affiliates |
|
FMS Billing Group |
|
Billing Group Address |
|
Billing Group Address 2 |
|
Billing Group City |
|
Billing Group State |
|
Billing Group Zip |
Bio-Medical Applications of Virginia, Inc. |
|
ROANOKE BILLING GROUP |
|
2830 KEAGY ROAD |
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|
SALEM |
|
VA |
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24153 |
|
Bio-Medical Applications of Virginia, Inc., ROANOKE BILLING GROUP, 2830 |
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KEAGY ROAD., SALEM, VA, 24153 |
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Bio-Medical Applications of West Virginia, Inc. |
|
ROANOKE BILLING GROUP |
|
2830 KEAGY ROAD |
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SALEM |
|
VA |
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24153 |
|
Bio-Medical Applications of West Virginia, Inc., ROANOKE BILLING GROUP, |
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2830 KEAGY ROAD., SALEM, VA, 24153 |
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Bio-Medical Applications of West Virginia, Inc. |
|
KENTUCKY BILLING GROUP |
|
6100 DUTCHMANS LANE |
|
12TH FLOOR |
|
LOUISVILLE |
|
KY |
|
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40205 |
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Bio-Medical Applications of West Virginia, Inc., KENTUCKY BILLING GROUP, |
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6100 DUTCHMANS LANE, 12TH FLOOR, LOUISVILLE, KY, 40205 |
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Bio-Medical Applications of Wisconsin, Inc. |
|
UPPER MIDWEST BILLING GROUP |
|
9120 SPRINGBROOK DRIVE |
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|
COON RAPIDS |
|
MN |
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55433 |
|
Bio-Medical Applications of Wisconsin, Inc., UPPER MIDWEST BILLING |
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GROUP, 9120 SPRINGBROOK DRIVE., COON RAPIDS, MN, 55433 |
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Bio-Medical Applications of Wisconsin, Inc. |
|
MICHIGAN BILLING GROUP |
|
3500 MASSILLON ROAD SUITE 230 |
|
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|
UNIONTOWN |
|
OH |
|
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44685 |
|
Bio-Medical Applications of Wisconsin, Inc., MICHIGAN BILLING GROUP, 3500 |
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MASSILLON ROAD SUITE 230, , UNIONTOWN, OH, 44685 |
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Brazoria Kidney Center, Inc. |
|
TYLER BILLING |
|
3910 BROOKSIDE DRIVE |
|
SUITE 100 |
|
TYLER |
|
TX |
|
|
75701 |
|
Brazoria Kidney Center, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE, |
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SUITE 100, TYLER, TX, 75701 |
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Brevard County Dialysis, LLC |
|
INDIANAPOLIS BILLING |
|
10585 NORTH MERIDIAN STREET |
|
SUITE 160 |
|
INDIANAPOLIS |
|
IN |
|
|
46290 |
|
Brevard County Dialysis, LLC, INDIANAPOLIS BILLING, 10585 NORTH |
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MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN, 46290 |
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Clayton County Dialysis, LLC |
|
INDIANAPOLIS BILLING |
|
10585 NORTH MERIDIAN STREET |
|
SUITE 160 |
|
INDIANAPOLIS |
|
IN |
|
|
46290 |
|
Clayton County Dialysis, LLC, INDIANAPOLIS BILLING, 10585 NORTH |
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MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN, 46290 |
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Clermont Dialysis Center, LLC |
|
INDIANAPOLIS BILLING |
|
10585 NORTH MERIDIAN STREET |
|
SUITE 160 |
|
INDIANAPOLIS |
|
IN |
|
|
46290 |
|
Clermont Dialysis Center, LLC, INDIANAPOLIS BILLING, 10585 NORTH |
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MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN, 46290 |
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Columbus Area Renal Alliance, LLC |
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CLEVELAND BILLING |
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25050 COUNTRY CLUB BOULEVARD |
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SUITE 250 |
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NORTH OLMSTED |
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OH |
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44070 |
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Columbus Area Renal Alliance, LLC, CLEVELAND BILLING, 25050 COUNTRY |
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CLUB BOULEVARD, SUITE 250, NORTH OLMSTED, OH, 44070 |
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Conejo Valley Dialysis, Inc. |
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SOUTHERN CALIFORNIA BILLING GROUP |
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1337 EAST THOUSAND OAKS BLVD |
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SUITE 216 |
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THOUSAND OAKS |
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CA |
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91362 |
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Conejo Valley Dialysis, Inc., SOUTHERN CALIFORNIA BILLING GROUP, 1337 |
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EAST THOUSAND OAKS BLVD, SUITE 216, THOUSAND OAKS, CA, 91362 |
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Dialysis America Georgia, LLC |
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KNOXVILLE BILLING GROUP |
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BILLING GROUP |
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1512 COLEMAN ROAD, SUITE 308 |
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KNOXVILLE |
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TN |
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37919 |
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Dialysis America Georgia, LLC, KNOXVILLE BILLING GROUP, BILLING |
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GROUP, 1512 COLEMAN ROAD, SUITE 308, KNOXVILLE, TN, 37919 |
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Dialysis Associates of Northern New Jersey, L.L.C. |
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ALLENTOWN BILLING GROUP |
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861 MARCON BLVD SUITE 2 |
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ALLENTOWN |
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PA |
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18109 |
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Dialysis Associates of Northern New Jersey, L.L.C., ALLENTOWN BILLING |
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GROUP, 861 MARCON BLVD SUITE 2, , ALLENTOWN, PA, 18109 |
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Dialysis Associates, LLC |
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INDIANAPOLIS BILLING |
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10585 NORTH MERIDIAN STREET |
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SUITE 160 |
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INDIANAPOLIS |
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IN |
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46290 |
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Dialysis Associates, LLC, INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN |
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STREET, SUITE 160, INDIANAPOLIS, IN, 46290 |
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Dialysis Centers of America — Illinois, Inc. |
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CHICAGO BILLING GROUP |
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ONE WESTBROOK DRIVE |
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TOWER 1, SUITE 1000 |
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WESTCHESTER |
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IL |
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60154 |
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Dialysis Centers of America — Illinois, Inc., CHICAGO BILLING GROUP, ONE |
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WESTBROOK DRIVE, TOWER 1, SUITE 1000, WESTCHESTER, IL, 60154 |
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Dialysis Centers of America — Illinois, Inc. |
|
CLEVELAND BILLING |
|
25050 COUNTRY CLUB BOULEVARD |
|
SUITE 250 |
|
NORTH OLMSTED |
|
OH |
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44070 |
|
Dialysis Centers of America — Illinois, Inc., CLEVELAND BILLING, 25050 |
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COUNTRY CLUB BOULEVARD, SUITE 250, NORTH OLMSTED, OH,’ 44070 |
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Dialysis Centers of America — Illinois, Inc. |
|
INDIANAPOLIS BILLING |
|
10585 NORTH MERIDIAN STREET |
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SUITE 160 |
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INDIANAPOLIS |
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IN |
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|
46290 |
|
Dialysis Centers of America — Illinois, Inc., INDIANAPOLIS BILLING, 10585 |
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NORTH MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN, 46290 |
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Dialysis Management Corporation |
|
TYLER BILLING |
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3910 BROOKSIDE DRIVE |
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SUITE 100 |
|
TYLER |
|
TX |
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|
75701 |
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Dialysis Management Corporation, TYLER BILLING, 3910 BROOKSIDE DRIVE, |
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SUITE 100, TYLER, TX, 75701 |
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Dialysis Services of Cincinnati, Inc. |
|
NORTHERN OHIO BILLING GROUP |
|
3500 MASSILLON ROAD |
|
SUITE 280 |
|
UNIONTOWN |
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OH |
|
|
44685 |
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Dialysis Services of Cincinnati, Inc., NORTHERN OHIO BILLING GROUP, 3500 |
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MASSILLON ROAD, SUITE 280, UNIONTOWN, OH, 44685 |
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Dialysis Specialists of Topeka, Inc. |
|
ARIZONA BILLING GROUP |
|
2917 S. DOBSON |
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SUITE 101 |
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MESA |
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AZ |
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85202 |
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Dialysis Specialists of Topeka, Inc., ARIZONA BILLING GROUP, 2917 S, |
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DOBSON, SUITE 101, MESA, AZ, 85202 |
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LUBBOCK BILLING GROUP |
|
4747 SOUTH LOOP 289, |
|
SUITE 120 |
|
LUBBOCK |
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TX |
|
|
79424 |
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Dialysis Specialists of Tulsa, Inc. |
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Dialysis Specialists of Tulsa, Inc. LUBBOCK BILLING GROUP, 4747 SOUTH |
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LOOP 289., SUITE 120., LUBBOCK, TX, 79424 |
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Douglas County Dialysis, LLC |
|
INDIANAPOLIS BILLING |
|
10585 NORTH MERIDIAN STREET |
|
SUITE 160 |
|
INDIANAPOLIS |
|
IN |
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|
46290 |
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|
2008 Transferring Affiliates |
|
FMS Billing Group |
|
Billing Group Address |
|
Billing Group Address 2 |
|
Billing Group City |
|
Billing Group State |
|
Billing Group Zip |
Douglas County Dialysis, LLC, INDIANAPOLIS BILLING, 10585 NORTH |
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MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN, 46290 |
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Du Page Dialysis, Ltd. |
|
CHICAGO BILLING GROUP |
|
ONE WESTBROOK DRIVE |
|
TOWER 1, SUITE 1000 |
|
WESTCHESTER |
|
IL |
|
|
60154 |
|
Du Page Dialysis, Ltd., CHICAGO BILLING GROUP, ONE WESTBROOK |
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DRIVE, TOWER 1, SUITE 1000, WESTCHESTER, IL, 60154 |
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Everest Healthcare Indiana, Inc. |
|
KENTUCKY BILLING GROUP |
|
6100 DUTCHMANS LANE |
|
12TH FLOOR |
|
LOUISVILLE |
|
KY |
|
|
40205 |
|
Everest Healthcare Indiana, Inc., KENTUCKY BILLING GROUP, 6100 |
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DUTCHMANS LANE, 12TH FLOOR, LOUISVILLE, KY, 40205 |
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Everest Healthcare Indiana, Inc. |
|
NORTHERN OHIO BILLING GROUP |
|
3500 MASSILLON ROAD |
|
SUITE 280 |
|
UNIONTOWN |
|
OH |
|
|
44685 |
|
Everest Healthcare Indiana, Inc., NORTHERN OHIO BILLING GROUP, 3500 |
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|
MASSILLON ROAD, SUITE 280, UNIONTOWN, OH, 44685 |
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|
Everest Healthcare Indiana, Inc. |
|
MICHIGAN BILLING GROUP |
|
3500 MASSILLON ROAD SUITE 230 |
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|
|
UNIONTOWN |
|
OH |
|
|
44685 |
|
Everest Healthcare Indiana, Inc., MICHIGAN BILLING GROUP, 3500 |
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MASSILLON ROAD SUITE 230., UNIONTOWN, OH, 44685 |
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|
Everest Healthcare Ohio, Inc. |
|
NORTHERN OHIO BILLING GROUP |
|
3500 MASSILLON ROAD |
|
SUITE 280 |
|
UNIONTOWN |
|
OH |
|
|
44685 |
|
Everest Healthcare Ohio, Inc., NORTHERN OHIO BILLING GROUP, 3500 |
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MASSILLON ROAD, SUITE 280, UNIONTOWN, OH, 44685 |
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|
Everest Healthcare Rhode Island, Inc. |
|
NEW BEDFORD BILLING GROUP |
|
700 PLEASANT STREET |
|
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|
NEW BEDFORD |
|
MA |
|
|
02740 |
|
Everest Healthcare Rhode Island, Inc., NEW BEDFORD BILLING GROUP, 700 |
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PLEASANT STREET., NEW BEDFORD, MA, 2740 |
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|
Everest Healthcare Texas, L.P. |
|
WACO BILLING GROUP |
|
UPTOWN PLAZA |
|
1110 RICHLAND DR., #3 |
|
WACO |
|
TX |
|
|
76710 |
|
Everest Healthcare Texas, L.P., WACO BILLING GROUP, UPTOWN PLAZA, |
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1110 RICHLAND DR., #3, WACO, TX, 76710 |
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|
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|
Fondren Dialysis Clinic, Inc. |
|
TYLER BILLING |
|
3910 BROOKSIDE DRIVE |
|
SUITE 100 |
|
TYLER |
|
TX |
|
|
75701 |
|
Fondren Dialysis Clinic, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE, |
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|
SUITE 100, TYLER, TX, 75701 |
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|
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|
|
Fort Scott Regional Dialysis Center, Inc. |
|
TYLER BILLING |
|
3910 BROOKSIDE DRIVE |
|
SUITE 100 |
|
TYLER |
|
TX |
|
|
75701 |
|
Fort Scott Regional Dialysis Center, Inc., TYLER BILLING, 3910 BROOKSIDE |
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|
DRIVE, SUITE 100, TYLER, TX, 75701 |
|
|
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|
|
Four State Regional Dialysis Center, Inc. |
|
TYLER BILLING |
|
3910 BROOKSIDE DRIVE |
|
SUITE 100 |
|
TYLER |
|
TX |
|
|
75701 |
|
Four State Regional Dialysis Center, Inc., TYLER BILLING, 3910 BROOKSIDE |
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DRIVE, SUITE 100, TYLER, TX, 75701 |
|
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|
|
|
Fresenius Medical Care Dialysis Services - Oregon, LLC |
|
PACIFIC NW BILLING GROUP |
|
4560 S. COACH DRIVE |
|
SUITE 100 |
|
TUCSON |
|
AZ |
|
|
85714 |
|
|
|
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|
|
|
|
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|
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|
|
Fresenius Medical Care Dialysis Services — Oregon, LLC, PACIFIC NW BILLING |
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|
GROUP, 4560 S. COACH DRIVE, SUITE 100, TUCSON, AZ, 85714 |
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|
|
|
Fresenius Medical Care Dialysis Services Colorado LLC |
|
ALBUQUERQUE BILLING GROUP |
|
909 VIRGINIA NE |
|
SUITE 112 |
|
ALBUQUERQUE |
|
NM |
|
|
87108 |
|
|
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|
Fresenius Medical Care Dialysis Services Colorado LLC, ALBUQUERQUE |
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|
BILLING GROUP, 909 VIRGINIA NE, SUITE 112, ALBUQUERQUE, NM, 87108 |
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|
Gulf Region Mobile Dialysis, Inc. |
|
SAN ANTONIO BILLING GROUP |
|
6100 BANDERA ROAD |
|
SUITE 601 |
|
SAN ANTONIO |
|
TX |
|
|
78238 |
|
Gulf Region Mobile Dialysis, Inc., SAN ANTONIO BILLING GROUP, 6100 |
|
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|
BANDERA ROAD, SUITE 601, SAN ANTONIO, TX, 78238 |
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|
|
|
|
|
Haemo-Stat, Inc. |
|
SOUTHERN CALIFORNIA BILLING GROUP |
|
1337 EAST THOUSAND OAKS BLVD |
|
SUITE 216 |
|
THOUSAND OAKS |
|
CA |
|
|
91362 |
|
Haemo-Stat, Inc., SOUTHERN CALIFORNIA BILLING GROUP, 1337 EAST |
|
|
|
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|
|
THOUSAND OAKS BLVD, SUITE 216, THOUSAND OAKS, CA, 91362 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Henry Dialysis Center, LLC |
|
INDIANAPOLIS BILLING |
|
10585 NORTH MERIDIAN STREET |
|
SUITE 160 |
|
INDIANAPOLIS |
|
IN |
|
|
46290 |
|
Henry Dialysis Center, LLC. INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN |
|
|
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|
|
STREET, SUITE 160, INDIANAPOLIS, IN, 46290 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Holton Dialysis Clinic, LLC |
|
INDIANAPOLIS BILLING |
|
10585 NORTH MERIDIAN STREET |
|
SUITE 160 |
|
INDIANAPOLIS |
|
IN |
|
|
46290 |
|
Holton Dialysis Clinic, LLC. INDIANAPOLIS BILLING; 10585 NORTH MERIDIAN |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
STREET, SUITE 160, INDIANAPOLIS, IN, 46290 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Home Dialysis of Muhlenburg County, Inc. |
|
KENTUCKY BILLING GROUP |
|
6100 DUTCHMANS LANE |
|
12TH FLOOR |
|
LOUISVILLE |
|
KY |
|
|
40205 |
|
Home Dialysis of Muhlenburg County, Inc., KENTUCKY BILLING GROUP, 6100 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
DUTCHMANS LANE, 12TH FLOOR, LOUISVILLE, KY, 40205 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jefferson County Dialysis, Inc. |
|
TYLER BILLING |
|
3910 BROOKSIDE DRIVE |
|
SUITE 100 |
|
TYLER |
|
TX |
|
|
75701 |
|
Jefferson County Dialysis, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE, |
|
|
|
|
|
|
|
|
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|
|
SUITE 100, TYLER, TX, 75701 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
KDCO, Inc. |
|
TYLER BILLING |
|
3910 BROOKSIDE DRIVE |
|
SUITE 100 |
|
TYLER |
|
TX |
|
|
75701 |
|
KDCO, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE 100, TYLER, |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TX, 75701 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kentucky Renal Care Group, LLC |
|
INDIANAPOLIS BILLING |
|
10585 NORTH MERIDIAN STREET |
|
SUITE 160 |
|
INDIANAPOLIS |
|
IN |
|
|
46290 |
|
Kentucky Renal Care Group, LLC. INDIANAPOLIS BILLING, 10585 NORTH |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN, 46290 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lawton Dialysis, Inc. |
|
TYLER BILLING |
|
3910 BROOKSIDE DRIVE |
|
SUITE 100 |
|
TYLER |
|
TX |
|
|
75701 |
|
Lawton Dialysis, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE 100, |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TYLER, TX, 75701 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Little Rock Dialysis, Inc. |
|
TYLER BILLING |
|
3910 BROOKSIDE DRIVE |
|
SUITE 100 |
|
TYLER |
|
TX |
|
|
75701 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008 Transferring Affiliates |
|
FMS Billing Group |
|
Billing Group Address |
|
Billing Group Address 2 |
|
Billing Group City |
|
Billing Group State |
|
Billing Group Zip |
Little Rock Dialysis, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE |
|
|
|
|
|
|
|
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|
|
|
|
|
|
100, TYLER, TX, 75701 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Maumee Dialysis Services, LLC |
|
INDIANAPOLIS BILLING |
|
10585 NORTH MERIDIAN STREET |
|
SUITE 160 |
|
INDIANAPOLIS |
|
IN |
|
|
46290 |
|
Maumee Dialysis Services, LLC, INDIANAPOLIS BILLING, 10585 NORTH |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN, 46290 |
|
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|
|
|
|
|
|
|
Miami Regional Dialysis Center, Inc. |
|
TYLER BILLING |
|
3910 BROOKSIDE DRIVE |
|
SUITE 100 |
|
TYLER |
|
TX |
|
|
75701 |
|
Miami Regional Dialysis Center, Inc., TYLER BILLING, 3910 BROOKSIDE |
|
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|
DRIVE, SUITE 100, TYLER, TX, 75701 |
|
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|
Michigan Home Dialysis Center, Inc. |
|
INDIANAPOLIS BILLING |
|
10585 NORTH MERIDIAN STREET |
|
SUITE 160 |
|
INDIANAPOLIS |
|
IN |
|
|
46290 |
|
Michigan Home Dialysis Center, Inc., INDIANAPOLIS BILLING, 10585 NORTH |
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MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN, 46290 |
|
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|
National Medical Care, Inc. |
|
CHICAGO BILLING GROUP |
|
ONE WESTBROOK DRIVE |
|
TOWER 1, SUITE 1000 |
|
WESTCHESTER |
|
IL |
|
|
60154 |
|
National Medical Care, Inc., CHICAGO BILLING GROUP, ONE WESTBROOK |
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DRIVE, TOWER 1, SUITE 1000, WESTCHESTER, IL, 60154 |
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|
National Medical Care, Inc. |
|
MICHIGAN BILLING GROUP |
|
3500 MASSILLON ROAD |
|
SUITE 230 |
|
UNIONTOWN |
|
OH |
|
|
44685 |
|
National Medical Care, Inc., MICHIGAN BILLING GROUP, 3500 MASSILLON |
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ROAD, SUITE 230, UNIONTOWN, OH, 44685 |
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|
National Medical Care, Inc. |
|
KNOXVILLE BILLING GROUP |
|
BILLING GROUP |
|
1512 COLEMAN ROAD, SUITE 308 |
|
KNOXVILLE |
|
TN |
|
|
37919 |
|
National Medical Care, Inc., KNOXVILLE BILLING GROUP, BILLING GROUP, |
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1512 COLEMAN ROAD, SUITE 308, KNOXVILLE, TN, 37919 |
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|
National Medical Care, Inc. |
|
OCALA BILLING GROUP |
|
BMA OCALA, INC. |
|
1308 SE 25TH LOOP, SUITE 102 |
|
OCALA |
|
FL |
|
|
34471 |
|
National Medical Care, Inc., OCALA BILLING GROUP, BMA OCALA, INC., 1308 |
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SE 25TH LOOP, SUITE 102, OCALA, FL, 34471 |
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|
National Medical Care, Inc. |
|
ORLANDO BILLING GROUP |
|
BMA ORLANDO, INC. |
|
1155 W STATE ROAD 434, SUITE 125 |
|
LONGWOOD |
|
FL |
|
|
32750 |
|
National Medical Care, Inc., ORLANDO BILLING GROUP, BMA ORLANDO. |
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|
INC., 1155 W STATE ROAD 434, SUITE 125, LONGWOOD, FL, 32750 |
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|
National Medical Care, Inc. |
|
ALLENTOWN BILLING GROUP |
|
861 MARCON BLVD SUITE 2 |
|
|
|
ALLENTOWN |
|
PA |
|
|
18109 |
|
National Medical Care, Inc., ALLENTOWN BILLING GROUP, 861 MARCON |
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BLVD SUITE 2., ALLENTOWN, PA, 18109 |
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|
National Medical Care, Inc. |
|
TAMPA BILLING GROUP |
|
BMA TAMPA INC. |
|
5625 WEST WATERS AVENUE, SUITE |
|
TAMPA |
|
FL |
|
|
33634 |
|
National Medical Care, Inc., TAMPA BILLING GROUP, BMA TAMPA INC., 5625 |
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WEST WATERS AVENUE, SUITE A, TAMPA, FL, 33634 |
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|
National Nephrology Associates of Texas, L.P. |
|
TYLER BILLING |
|
3910 BROOKSIDE DRIVE |
|
SUITE 100 |
|
TYLER |
|
TX |
|
|
75701 |
|
National Nephrology Associates of Texas, L.P., TYLER BILLING, 3910 |
|
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|
BROOKSIDE DRIVE, SUITE 100, TYLER, TX, 75701 |
|
|
|
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|
NNA of Alabama, Inc. |
|
INDIANAPOLIS BILLING |
|
10585 NORTH MERIDIAN STREET |
|
SUITE 160 |
|
INDIANAPOLIS |
|
IN |
|
|
46290 |
|
NNA of Alabama, Inc., INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN |
|
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|
STREET, SUITE 160, INDIANAPOLIS, IN, 46290 |
|
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|
NNA of East Orange, L.L.C. |
|
CLEVELAND BILLING |
|
25050 COUNTRY CLUB BOULEVARD |
|
SUITE 250 |
|
NORTH OLMSTED |
|
OH |
|
|
44070 |
|
NNA of East Orange, L.L.C., CLEVELAND BILLING, 25050 COUNTRY CLUB |
|
|
|
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|
BOULEVARD, SUITE 250, NORTH OLMSTED, OH, 44070 |
|
|
|
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|
|
|
|
|
|
|
|
NNA of Florida, LLC |
|
INDIANAPOLIS BILLING |
|
10585 NORTH MERIDIAN STREET |
|
SUITE 160 |
|
INDIANAPOLIS |
|
IN |
|
|
46290 |
|
NNA of Florida, LLC, INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN |
|
|
|
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|
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|
STREET, SUITE 160, INDIANAPOLIS, IN, 46290 |
|
|
|
|
|
|
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|
|
|
|
|
|
|
NNA of Georgia, Inc. |
|
INDIANAPOLIS BILLING |
|
10585 NORTH MERIDIAN STREET |
|
SUITE 160 |
|
INDIANAPOLIS |
|
IN |
|
|
46290 |
|
NNA of Georgia, Inc., INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN |
|
|
|
|
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|
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|
STREET, SUITE 160, INDIANAPOLIS, IN, 46290 |
|
|
|
|
|
|
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|
|
|
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|
|
|
NNA
of Harrison, L.L.C. |
|
CLEVELAND BILLING |
|
25050 COUNTRY CLUB BOULEVARD |
|
SUITE 250 |
|
NORTH OLMSTED |
|
OH |
|
|
44070 |
|
NNA of Harrison, L.L.C., CLEVELAND BILLING, 25050 COUNTRY CLUB |
|
|
|
|
|
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|
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|
BOULEVARD, SUITE 250, NORTH OLMSTED, OH, 44070 |
|
|
|
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|
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|
|
|
|
|
|
|
|
NNA of Louisiana, LLC |
|
INDIANAPOLIS BILLING |
|
10585 NORTH MERIDIAN STREET |
|
SUITE 160 |
|
INDIANAPOLIS |
|
IN |
|
|
46290 |
|
NNA of Louisiana, LLC, INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN |
|
|
|
|
|
|
|
|
|
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|
|
|
STREET, SUITE 160, INDIANAPOLIS, IN, 46290 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NNA
of Oklahoma, L.L.C. |
|
TYLER BILLING |
|
3910 BROOKSIDE DRIVE |
|
SUITE 100 |
|
TYLER |
|
TX |
|
|
75701 |
|
NNA of Oklahoma, L.L.C., TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE |
|
|
|
|
|
|
|
|
|
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|
|
|
100, TYLER, TX, 75701 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NNA of Rhode Island, Inc. |
|
CLEVELAND BILLING |
|
25050 COUNTRY CLUB BOULEVARD |
|
SUITE 250 |
|
NORTH OLMSTED |
|
OH |
|
|
44070 |
|
NNA of Rhode Island, Inc., CLEVELAND BILLING, 25050 COUNTRY CLUB |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BOULEVARD, SUITE 250, NORTH OLMSTED, OH, 44070 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NNA of Toledo, Inc. |
|
INDIANAPOLIS BILLING |
|
10585 NORTH MERIDIAN STREET |
|
SUITE 160 |
|
INDIANAPOLIS |
|
IN |
|
|
46290 |
|
NNA of Toledo, Inc., INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
STREET, SUITE 160, INDIANAPOLIS, IN, 46290 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NNA-Saint Bamabas, L.L.C. |
|
CLEVELAND BILLING |
|
25050 COUNTRY CLUB BOULEVARD |
|
SUITE 250 |
|
NORTH OLMSTED |
|
OH |
|
|
44070 |
|
NNA-Saint Bamabas, L.L.C., CLEVELAND BILLING, 25050 COUNTRY CLUB |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BOULEVARD, SUITE 250, NORTH OLMSTED, OH, 44070 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NNA-Saint Bamabas-Livingston, L.L.C. |
|
CLEVELAND BILLING |
|
25050 COUNTRY CLUB BOULEVARD |
|
SUITE 250 |
|
NORTH OLMSTED |
|
OH |
|
|
44070 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008 Transferring Affiliates |
|
FMS Billing Group |
|
Billing Group Address |
|
Billing Group Address 2 |
|
Billing Group City |
|
Billing Group State |
|
Billing Group Zip |
|
NNA-Saint
Bamabas-Livingston, L.L.C.,CLEVELAND BILLING, 25050 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COUNTRY CLUB BOULEVARD, SUITE 250, NORTH OLMSTED, OH, 44070 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Norcross Dialysis Center, LLC |
|
INDIANAPOLIS BILLING |
|
10585 NORTH MERIDIAN STREET |
|
SUITE 160 |
|
INDIANAPOLIS |
|
IN |
|
|
46290 |
|
Norcross
Dialysis Center, LLC, INDIANAPOLIS BILLING, 10585 NORTH |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
MERIDIAN
STREET, SUITE 160, INDIANAPOLIS, IN, 46290 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NORMAN
NEPHROLOGY, P.L.L.C. |
|
LUBBOCK BILLING GROUP |
|
4747 SOUTH LOOP 289 |
|
SUITE 120, |
|
LUBBOCK |
|
TX |
|
|
79424 |
|
NORMAN
NEPHROLOGY, P.L.L.C., LUBBOCK BILLING GROUP, 4747 SOUTH |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LOOP 289,
SUITE 120, LUBBOCK, TX, 79424 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Northeast
Alabama Kidney Clinic, Inc. |
|
INDIANAPOLIS BILLING |
|
10585 NORTH MERIDIAN STREET |
|
SUITE 160 |
|
INDIANAPOLIS |
|
IN |
|
|
46290 |
|
Northeast
Alabama Kidney Clinic, Inc., INDIANAPOLIS BILLING, 10585 NORTH |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN, 46290 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Northern New Jersey Dialysis, LLC |
|
ALLENTOWN BILLING GROUP |
|
861 MARCON BLVD |
|
SUITE 2 |
|
ALLENTOWN |
|
PA |
|
|
18109 |
|
Northern New Jersey Dialysis, LLC, ALLENTOWN BILLING GROUP, 861 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
MARCON BLVD
SUITE 2, ALLENTOWN, PA, 18109 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Physicians Dialysis Company, Inc. |
|
CLEVELAND BILLING |
|
25050 COUNTRY CLUB BOULEVARD |
|
SUITE 250 |
|
NORTH OLMSTED |
|
OH |
|
|
44070 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Physicians Dialysis Company, Inc., CLEVELAND BILLING, 25050 COUNTRY |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CLUB BOULEVARD, SUITE 250, NORTH OLMSTED, OH, 44070 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
RCG
Bloomington, LLC |
|
INDIANAPOLIS BILLING |
|
10585 NORTH MERIDIAN STREET |
|
SUITE 160 |
|
INDIANAPOLIS |
|
IN |
|
|
46290 |
|
RCG Bloomington, LLC, INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
STREET, SUITE 160, INDIANAPOLIS, IN, 46290 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
RCG East Texas, LLP |
|
TYLER BILLING |
|
3910 BROOKSIDE DRIVE |
|
SUITE 100 |
|
TYLER |
|
TX |
|
|
75701 |
|
RCG East Texas, LLP, TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE 100, |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TYLER, TX, 75701 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
RCG Indiana, L.L.C. |
|
INDIANAPOLIS BILLING |
|
10585 NORTH MERIDIAN STREET |
|
SUITE 160 |
|
INDIANAPOLIS |
|
IN |
|
|
46290 |
|
RCG Indiana, L.L.C., INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
STREET, SUITE 160, INDIANAPOLIS, IN, 46290 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
RCG Irving, LLP |
|
TYLER BILLING |
|
3910 BROOKSIDE DRIVE |
|
SUITE 100 |
|
TYLER |
|
TX |
|
|
75701 |
|
RCG Irving,
LLP, TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE 100, |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TYLER, TX, 75701 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
RCG Martin, LLC |
|
INDIANAPOLIS BILLING |
|
10585 NORTH MERIDIAN STREET |
|
SUITE 160 |
|
INDIANAPOLIS |
|
IN |
|
|
46290 |
|
RCG Martin,
LLC, INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
STREET,
SUITE 160, INDIANAPOLIS, IN, 46290 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
RCG Memphis
East, LLC |
|
INDIANAPOLIS BILLING |
|
10585 NORTH MERIDIAN STREET |
|
SUITE 160 |
|
INDIANAPOLIS |
|
IN |
|
|
46290 |
|
RCG Memphis
East, LLC, INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
STREET,
SUITE 160, INDIANAPOLIS, IN, 46290 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
RCG Mississippi, Inc. |
|
INDIANAPOLIS BILLING |
|
10585 NORTH MERIDIAN STREET |
|
SUITE 160 |
|
INDIANAPOLIS |
|
IN |
|
|
46290 |
|
RCG Mississippi, Inc., INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
STREET, SUITE 160, INDIANAPOLIS, IN, 48290 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
RCG Mississippi, Inc. |
|
TYLER BILLING |
|
3910 BROOKSIDE DRIVE |
|
SUITE 100 |
|
TYLER |
|
TX |
|
|
75701 |
|
RCG
Mississippi, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE 100, |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TYLER, TX, 75701 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
RCG Mississippi, Inc. |
|
MESA BILLING |
|
1750 SOUTH MESA DRIVE |
|
SUITE 110 |
|
MESA |
|
AZ |
|
|
85210 |
|
RCG
Mississippi. Inc., MESA BILLING, 1750 SOUTH MESA DRIVE, SUITE 110, |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
MESA, AZ, 85210 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
RCG University Division, Inc. |
|
CLEVELAND BILLING |
|
25050 COUNTRY CLUB BOULEVARD |
|
SUITE 250 |
|
NORTH OLMSTED |
|
OH |
|
|
44070 |
|
RCG
University Division, Inc., CLEVELAND BILLING, 25050 COUNTRY CLUB |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BOULEVARD,
SUITE 250, NORTH OLMSTED, OH, 44070 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
RCG
University Division, Inc. |
|
INDIANAPOLIS BILLING |
|
10585 NORTH MERIDIAN STREET |
|
SUITE 160 |
|
INDIANAPOLIS |
|
IN |
|
|
46290 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Renal Care Group Alaska, Inc. |
|
MESA BILLING |
|
1750 SOUTH MESA DRIVE |
|
SUITE 110 |
|
MESA |
|
AZ |
|
|
85210 |
|
Renal Care
Group Alaska, Inc., MESA BILLING, 1750 SOUTH MESA DRIVE, SUITE 110, |
|
|
|
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|
MESA, AZ, 85210 |
|
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|
|
Renal Care
Group East, Inc. |
|
CLEVELAND BILLING |
|
25050 COUNTRY CLUB BOULEVARD |
|
SUITE 250 |
|
NORTH OLMSTED |
|
OH |
|
|
44070 |
|
Renal Care
Group East, Inc., CLEVELAND BILLING, 25050 COUNTRY CLUB |
|
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|
BOULEVARD,
SUITE 250, NORTH OLMSTED, OH, 44070 |
|
|
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|
|
Renal Care
Group Northwest, Inc. |
|
MESA BILLING |
|
1750 SOUTH MESA DRIVE |
|
SUITE 110 |
|
MESA |
|
AZ |
|
|
85210 |
|
Renal Care
Group Northwest, Inc., MESA BILLING, 1750 SOUTH MESA DRIVE, SUITE |
|
|
|
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|
110, MESA, AZ, 85210 |
|
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|
Renal Care
Group of the Midwest, Inc. |
|
TYLER BILLING |
|
3910 BROOKSIDE DRIVE |
|
SUITE 100 |
|
TYLER |
|
TX |
|
|
75701 |
|
Renal Care
Group of the Midwest, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE |
|
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|
100, TYLER, TX, 75701 |
|
|
|
|
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|
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|
|
Renal Care
Group of the Ozarks, LLC |
|
TYLER BILLING |
|
3910 BROOKSIDE DRIVE |
|
SUITE 100 |
|
TYLER |
|
TX |
|
|
75701 |
|
Renal Care
Group of the Ozarks, LLC, TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE |
|
|
|
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|
100, TYLER, TX, 75701 |
|
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|
|
2008 Transferring Affiliates |
|
FMS Billing Group |
|
Billing Group Address |
|
Billing Group Address 2 |
|
Billing Group City |
|
Billing Group State |
|
Billing Group Zip |
Renal Care Group of the South, Inc.
|
|
INDIANAPOLIS BILLING
|
|
10585 NORTH MERIDIAN STREET
|
|
SUITE 160
|
|
INDIANAPOLIS
|
|
IN
|
|
|
46290 |
|
Renal Care Group of the South, Inc., INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN |
|
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|
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|
|
STREET, SUITE 160, INDIANAPOLIS, IN, 46290 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Renal Care Group of the Southeast, Inc.
|
|
INDIANAPOLIS BILLING
|
|
10585 NORTH MERIDIAN STREET
|
|
SUITE 160
|
|
INDIANAPOLIS
|
|
IN
|
|
|
46290 |
|
Renal Care Group of the Southeast, Inc., INDIANAPOLIS BILLING, 10585 NORTH |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN, 46290 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Renal Care Group South New Mexico, LLC
|
|
TYLER BILLING
|
|
3910 BROOKSIDE DRIVE
|
|
SUITE 100
|
|
TYLER
|
|
TX
|
|
|
75701 |
|
Renal Care Group South New Mexico, LLC, TYLER BILLING, 3910 BROOKSIDE DRIVE, |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SUITE 100, TYLER, TX, 75701 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Renal Care Group Southwest, L.P.
|
|
TYLER BILLING
|
|
3910 BROOKSIDE DRIVE
|
|
SUITE 100
|
|
TYLER
|
|
TX
|
|
|
75701 |
|
Renal Care Group Southwest, L.P., TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE |
|
|
|
|
|
|
|
|
|
|
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|
|
100, TYLER, TX, 75701 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Renal Care Group Texas, Inc.
|
|
TYLER BILLING
|
|
3910 BROOKSIDE DRIVE
|
|
SUITE 100
|
|
TYLER
|
|
TX
|
|
|
75701 |
|
Renal Care Group Texas, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE 100, |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TYLER, TX, 75701 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Renal Care Group Westlake, LLC
|
|
CLEVELAND BILLING
|
|
25050 COUNTRY CLUB BOULEVARD
|
|
SUITE 250
|
|
NORTH OLMSTED
|
|
OH
|
|
|
44070 |
|
Renal Care Group Westlake, LLC, CLEVELAND BILLING, 25050 COUNTRY CLUB |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BOULEVARD, SUITE 250, NORTH OLMSTED, OH, 44070 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Renal Care Group, Inc.
|
|
TYLER BILLING
|
|
3910 BROOKSIDE DRIVE
|
|
SUITE 100
|
|
TYLER
|
|
TX
|
|
|
75701 |
|
Renal Care Group, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE 100, TYLER, |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TX, 75701 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Renex Dialysis Clinic of Bridgeton, Inc.
|
|
TYLER BILLING
|
|
3910 BROOKSIDE DRIVE
|
|
SUITE 100
|
|
TYLER
|
|
TX
|
|
|
75701 |
|
Renex Dialysis Clinic of Bridgeton, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
100, TYLER, TX, 75701 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Renex Dialysis Clinic of Creve Coeur, Inc.
|
|
TYLER BILLING
|
|
3910 BROOKSIDE DRIVE
|
|
SUITE 100
|
|
TYLER
|
|
TX
|
|
|
75701 |
|
Renex Dialysis Clinic of Creve Coeur, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE, |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SUITE 100, TYLER, TX, 75701 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Renex Dialysis Clinic of Doylestown, Inc.
|
|
CLEVELAND BILLING
|
|
25050 COUNTRY CLUB BOULEVARD
|
|
SUITE 250
|
|
NORTH OLMSTED
|
|
OH
|
|
|
44070 |
|
Renex Dialysis Clinic of Doylestown, Inc., CLEVELAND BILLING, 25050 COUNTRY CLUB |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BOULEVARD, SUITE 250, NORTH OLMSTED, OH, 44070 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Renex Dialysis Clinic of Maplewood, Inc.
|
|
TYLER BILLING
|
|
3910 BROOKSIDE DRIVE
|
|
SUITE 100
|
|
TYLER
|
|
TX
|
|
|
75701 |
|
Renex Dialysis Clinic of Maplewood, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE, |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SUITE 100, TYLER, TX, 75701 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Renex Dialysis Clinic of Orange, Inc.
|
|
CLEVELAND BILLING
|
|
25050 COUNTRY CLUB BOULEVARD
|
|
SUITE 250
|
|
NORTH OLMSTED
|
|
OH
|
|
|
44070 |
|
Renex Dialysis Clinic of Orange, Inc., CLEVELAND BILLING, 25050 COUNTRY CLUB |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BOULEVARD, SUITE 250, NORTH OLMSTED, OH, 44070 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Renex Dialysis Clinic of Penn Hills, Inc.
|
|
CLEVELAND BILLING
|
|
25050 COUNTRY CLUB BOULEVARD
|
|
SUITE 250
|
|
NORTH OLMSTED
|
|
OH
|
|
|
44070 |
|
Renex Dialysis Clinic of Penn Hills, Inc., CLEVELAND BILLING, 25050 COUNTRY CLUB |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BOULEVARD, SUITE 250, NORTH OLMSTED, OH, 44070 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Renex Dialysis Clinic of Philadelphia, Inc.
|
|
CLEVELAND BILLING
|
|
25050 COUNTRY CLUB BOULEVARD
|
|
SUITE 250
|
|
NORTH OLMSTED
|
|
OH
|
|
|
44070 |
|
Renex Dialysis Clinic of Philadelphia, Inc., CLEVELAND BILLING, 25050 COUNTRY CLUB |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BOULEVARD, SUITE 250, NORTH OLMSTED, OH, 44070 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Renex Dialysis Clinic of Pittsburgh, Inc.
|
|
CLEVELAND BILLING
|
|
25050 COUNTRY CLUB BOULEVARD
|
|
SUITE 250
|
|
NORTH OLMSTED
|
|
OH
|
|
|
44070 |
|
Renex Dialysis Clinic of Pittsburgh, Inc., CLEVELAND BILLING, 25050 COUNTRY CLUB |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BOULEVARD. SUITE 250, NORTH OLMSTED, OH, 44070 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Renex Dialysis Clinic of Shaler, Inc.
|
|
CLEVELAND BILLING
|
|
25050 COUNTRY CLUB BOULEVARD
|
|
SUITE 250
|
|
NORTH OLMSTED
|
|
OH
|
|
|
44070 |
|
Renex Dialysis Clinic of Shaler, Inc., CLEVELAND BILLING, 25050 COUNTRY CLUB |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BOULEVARD, SUITE 250, NORTH OLMSTED, OH, 44070 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Renex Dialysis Clinic of South Georgia, Inc.
|
|
INDIANAPOLIS BILLING
|
|
10585 NORTH MERIDIAN STREET
|
|
SUITE 160
|
|
INDIANAPOLIS
|
|
IN
|
|
|
46290 |
|
Renex Dialysis Clinic of South Georgia, Inc., INDIANAPOLIS BILLING, 10585 NORTH |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN, 46290 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Renex Dialysis Clinic of St, Louis, Inc.
|
|
TYLER BILLING
|
|
3910 BROOKSIDE DRIVE
|
|
SUITE 100
|
|
TYLER
|
|
TX
|
|
|
75701 |
|
Renex Dialysis Clinic of St. Louis, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
100, TYLER, TX, 75701 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Renex Dialysis Clinic of Union, Inc.
|
|
TYLER BILLING
|
|
3910 BROOKSIDE DRIVE
|
|
SUITE 100
|
|
TYLER
|
|
TX
|
|
|
75701 |
|
Renex Dialysis Clinic of Union, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
100, TYLER, TX, 75701 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Renex Dialysis Clinic of University City, Inc.
|
|
TYLER BILLING
|
|
3910 BROOKSIDE DRIVE
|
|
SUITE 100
|
|
TYLER
|
|
TX
|
|
|
75701 |
|
Renex Dialysis Clinic of University City, Inc. TYLER BILLING, 3910 BROOKSIDE DRIVE, |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SUITE 100, TYLER, TX, 75701 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Renex Dialysis Clinic of Woodbury, Inc.
|
|
CLEVELAND BILLING
|
|
25050 COUNTRY CLUB BOULEVARD
|
|
SUITE 250
|
|
NORTH OLMSTED
|
|
OH
|
|
|
44070 |
|
Renex Dialysis Clinic of Woodbury, Inc., CLEVELAND BILLING, 25050 COUNTRY CLUB |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BOULEVARD, SUITE 250, NORTH OLMSTED. OH, 44070 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Renex Dialysis Facilities, Inc.
|
|
TYLER BILLING
|
|
3910 BROOKSIDE DRIVE
|
|
SUITE 100
|
|
TYLER
|
|
TX
|
|
|
75701 |
|
Renex Dialysis Facilities, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE. SUITE 100, |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TYLER, TX, 75701 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Renex Dialysis Facilities, Inc.
|
|
MESA BILLING
|
|
1750 SOUTH MESA DRIVE
|
|
SUITE 110
|
|
MESA
|
|
AZ
|
|
|
85210 |
|
Renex Dialysis Facilities, Inc., MESA BILLING, 1750 SOUTH MESA DRIVE, SUITE 110, |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
MESA, AZ, 85210 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
San Diego Dialysis Services, Inc.
|
|
SAN DIEGO BILLING GROUP
|
|
2917 S. DOBSON
|
|
SUITE 101
|
|
MESA
|
|
AZ
|
|
|
85202 |
|
San Diego Dialysis Services, Inc., SAN DIEGO BILLING GROUP, 2917 S. DOBSON, SUITE |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
101, MESA, AZ, 85202 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008 Transferring Affiliates |
|
FMS Billing Group |
|
Billing Group Address |
|
Billing Group Address 2 |
|
Billing Group City |
|
Billing Group State |
|
Billing Group Zip |
Santa Barbara Community Dialysis Center, Inc.
|
|
SOUTHERN CALIFORNIA BILLING GROUP
|
|
1337 EAST THOUSAND OAKS BLVD
|
|
SUITE 216
|
|
THOUSAND OAKS
|
|
CA
|
|
|
91362 |
|
Santa Barbara Community Dialysis Center, Inc., SOUTHERN CALIFORNIA BILLING |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
GROUP, 1337 EAST THOUSAND OAKS BLVD, SUITE 216, THOUSAND OAKS, CA, |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
91362 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Smyrna Dialysis Center, LLC
|
|
INDIANAPOLIS BILLING
|
|
10585 NORTH MERIDIAN STREET
|
|
SUITE 160
|
|
INDIANAPOLIS
|
|
IN
|
|
|
46290 |
|
Smyrna Dialysis Center, LLC, INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
STREET, SUITE 160, INDIANAPOLIS, IN, 46290 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SSKG, Inc.
|
|
INDIANAPOLIS BILLING
|
|
10585 NORTH MERIDIAN STREET
|
|
SUITE 160
|
|
INDIANAPOLIS
|
|
IN
|
|
|
46290 |
|
SSKG, Inc.. INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN STREET, SUITE 160, |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
INDIANAPOLIS, IN, 46290 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
STAT Dialysis Corporation
|
|
TYLER BILLING
|
|
3910 BROOKSIDE DRIVE
|
|
SUITE 100
|
|
TYLER
|
|
TX
|
|
|
75701 |
|
STAT Dialysis Corporation, TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE 100, |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TYLER, TX, 75701 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stone Mountain Dialysis Center, LLC
|
|
INDIANAPOLIS BILLING
|
|
10585 NORTH MERIDIAN STREET
|
|
SUITE 160
|
|
INDIANAPOLIS
|
|
IN
|
|
|
46290 |
|
Stone Mountain Dialysis Center, LLC, INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
STREET, SUITE 160, INDIANAPOLIS, IN, 46290 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stuttgart Dialysis, LLC
|
|
TYLER BILLING
|
|
3910 BROOKSIDE DRIVE
|
|
SUITE 100
|
|
TYLER
|
|
TX
|
|
|
75701 |
|
Stuttgart Dialysis, LLC, TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE 100, TYLER, |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TX, 75701 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Terrell Dialysis Center, LLC
|
|
WACO BILLING GROUP
|
|
UPTOWN PLAZA
|
|
1110 RICHLAND DR., #3
|
|
WACO
|
|
TX
|
|
76710
|
Terrell Dialysis Center, LLC, WACO BILLING GROUP, UPTOWN PLAZA, 1110 RICHLAND |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
DR., #3, WACO, TX, 76710 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three
Rivers Dialysis Services, LLC
|
|
INDIANAPOLIS BILLING
|
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10585 NORTH MERIDIAN STREET
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SUITE 160
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INDIANAPOLIS
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IN
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46290 |
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Three Rivers Dialysis Services, LLC, INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN |
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STREET, SUITE 160, INDIANAPOLIS, IN, 46290 |
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West Palm Dialysis, LLC
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INDIANAPOLIS BILLING
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10585 NORTH MERIDIAN STREET
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SUITE 160
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INDIANAPOLIS
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IN
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46290 |
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West Palm Dialysis, LLC, INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN STREET, |
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SUITE 160, INDIANAPOLIS, IN, 46290 |
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Wharton Dialysis, Inc.
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TYLER BILLING
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3910 BROOKSIDE DRIVE
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SUITE 100
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TYLER
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TX
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75701 |
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Wharton Dialysis, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE 100, TYLER, |
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TX, 75701 |
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WSKC Dialysis Services, Inc.
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CHICAGO BILLING GROUP
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ONE WESTBROOK DRIVE
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TOWER 1, SUITE 1000
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WESTCHESTER
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IL
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60154 |
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WSKC Dialysis Services, Inc., CHICAGO BILLING GROUP, ONE WESTBROOK DRIVE, |
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TOWER 1 , SUITE 1000, WESTCHESTER, IL, 60154 |
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EXHIBIT J
to
FOURTH AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
[FORM OF BUSINESS ASSOCIATE AGREEMENT]
Schedule [Insert Schedule Number or Letter Here]
HIPAA Business Associate Terms and Conditions
These HIPAA Business Associate Terms and Conditions are expressly made part of and incorporated
into the [name of underlying agreement) (the “Agreement”). Fresenius Medical Care North America
(“FMCNA”) and [NAME OF BA] (“Business Associate”) (each sometimes referred to individually as a
“Party” and collectively as the “Parties”), hereby agree to the following terms and conditions:
Recitals
FMCNA is required to meet the requirements of the Health Insurance Portability and Accountability
Act of 1996 (PL 104 – 91) (“HIPAA”) and regulations enacted by the United States Department of Health
and Human Services at 45 C.F.R. Parts 160 – 164 (the “Privacy and Security Rules”).
[NAME OF BA] (“Business Associate”) provides services to FMCNA that involve the access to
individually identifiable health information (“Protected Health Information” or “PHI”) created,
received, maintained or transmitted by or on behalf of FMCNA.
As required by the Privacy and Security Rules, FMCNA and Business Associate agree to the Business
Associate Terms and Conditions relating to the use, disclosure and protection of PHI. These
Business Associate Terms and Conditions are required to allow Business Associate to provide its
services to FMCNA.
For purposes of these Business Associate Terms and Conditions, all capitalized terms shall have the
meanings set forth herein; provided, however, that if a capitalized term is not defined herein, it
shall have the meaning set forth in the Privacy and Security Rules.
1. Responsibilities of Business Associate
If, during the term of this Agreement, Business Associate is in receipt of PHI, Business
Associate hereby agrees to do the following:
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a. |
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Use and/or disclose the PHI only as permitted or required by the Agreement or as
otherwise Required by Law. |
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b. |
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Report to the designated Privacy and Security Officer of FMCNA, in writing, any use
and/or disclosure of the PHI that is not permitted or required by the Agreement of which
Business Associate becomes aware within two (2) days of Business Associate’s discovery of
such unauthorized use and/or disclosure. |
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c. |
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Establish procedures for mitigating, to the greatest extent possible, any deleterious
effects from any improper use and/or disclosure of PHI that Business Associate reports to
FMCNA. |
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d. |
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Use appropriate safeguards to prevent unauthorized use and/or disclosure of PHI. |
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e. |
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Implement Administrative, Physical, and Technical safeguards that reasonably and
appropriately protect the Confidentiality, Integrity and Availability of the Electronic
PHI that Business Associate creates, receives, maintains, or transmits on behalf of FMCNA. |
Page 1 of 3
f. |
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Require all of its subcontractors and agents that create, receive, maintain, transmit, use,
or have access to, PHI governed by this Agreement to agree, in writing, to adhere to the same
restrictions and conditions on the use, disclosure, and/or protection of PHI that apply to
Business Associate pursuant hereto. |
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g. |
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Make available all records, books, agreements, policies, procedures, and internal practices
relating to the use and/or disclosure of PHI to the United States Secretary of Health and
Human Services for purposes of determining FMCNA’s compliance with HIPAA, subject to
attorney-client and other applicable legal privileges. |
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h. |
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Upon prior written request, make available to FMCNA during normal business hours at
Business Associate’s offices all records, books, agreements, policies and procedures, and
internal practices relating to the use and/or disclosure of PHI within three (3) days for
purposes of enabling FMCNA to determine Business Associate’s compliance with the terms of this
Agreement. |
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i. |
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Upon termination of the Agreement, where feasible, destroy or return to FMCNA within
thirty (30) days all PHI received from, or created, received, maintained or transmitted by
Business Associate on behalf of FMCNA. Where return or destruction is not feasible, the duties
of Business Associate under this Agreement shall be extended to protect the PHI retained by
Business Associate. Business Associate agrees to limit further uses and disclosures of the PHI
retained to those purposes that made the return or destruction infeasible. |
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j. |
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Disclose to its subcontractors, agents or other third parties, and request from FMCNA,
only the minimum PHI necessary to perform or fulfill a specific function required or permitted
hereunder. |
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k. |
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Notify FMCNA within two (2) business days if an Individual (FMCNA patient or the
patient’s legal representative) wishes to assert his or her right of access to obtain a
copy of PHI as set forth in 45 C.F.R. § 164.524. |
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l. |
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At the request of FMCNA, and in the time and manner specified by FMCNA, provide access to
PHI contained in a Designated Record Set to an Individual in accordance with the terms and
provisions of 45 C.F.R. § 164.524. FMCNA’s determination of what constitutes PHI or a
Designated Record Set shall be final and conclusive. |
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m. |
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Notify FMCNA within two (2) business days if an Individual (FMCNA patient or the
patient’s legal representative) wishes to assert his or her right to amend PHI or amend a
record in a Designated Record Set as set forth in 45 C.F.R. § 164.526. |
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n. |
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Make any amendment(s) to an Individual’s PHI contained in a Designated Record Set that
FMCNA directs or agrees to pursuant to 45 C.F.R. § 164.526 and in the time and manner directed
by FMCNA. FMCNA’s determination of what PHI is subject to amendment pursuant to 45 C.F.R. §
164.526 shall be final and conclusive. |
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o. |
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Notify FMCNA within two (2) business days if an Individual (FMCNA patient or the patient’s
legal representative) wishes to assert his or her right to receive an accounting of
disclosures of PHI as set forth in 45 C.F.R. § 164.528. |
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p. |
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Document any disclosures of PHI that would be required for FMCNA to respond to a request by
an Individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. § 164.528.
Business Associate agrees to provide to FMCNA, in a time and |
Page 2 of 3
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manner designated by FMCNA, the information collected in accordance with this paragraph to
permit FMCNA respond to a request by an Individual for an accounting of disclosures
pursuant to 45 C.F.R. § 164.528. |
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q. |
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Report in writing, within two (2) days, to FMCNA any Security Incident (as defined
in 45 C.F.R. § 164.304) of which Business Associate becomes aware. However, the obligation
to report a Security Incident shall not include immaterial incidents, such as unsuccessful
attempts to penetrate Business Associate’s information system. |
2. Termination. Notwithstanding anything in the Agreement to the contrary, a breach of these
Business Associate Terms and Conditions shall be considered a material breach of the Agreement
entitling FMCNA to terminate the Agreement. FMCNA may, however, provide an opportunity for Business
Associate to cure such breach of these Business Associate terms and conditions within ten (10)
calendar days of such breach. If neither termination nor cure is feasible, FMCNA shall report the
violation to the Secretary.
3. Representations of the Parties
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Each Party represents to the other Party: |
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a. |
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That it is duly authorized, validly existing, and in good standing
under the laws of the jurisdiction(s) in which it is organized or licensed, it
has the full power to enter into this Agreement and to perform its obligations
described in this Agreement, that the performance by it of its obligations under
this Agreement have been duly authorized by all necessary corporate or other
actions, and that such performance will not violate any provision of any
organizational charter or bylaws. |
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b. |
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That it will reasonably cooperate with the other Party in the
performance of its obligations under this Agreement. |
4. Miscellaneous
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a. |
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If the Privacy or Security Rules are modified in any way impacting the Agreement,
FMCNA and Business Associate shall, prior to the compliance date for such modifications,
amend the Business Associate Terms and Conditions, as appropriate, to ensure compliance
with such modifications. |
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b. |
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A reference in these Business Associate Terms and Conditions to the Privacy or
Security Rules means the section in effect or as amended. |
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c. |
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In the event of a conflict between these Business Associate Terms and Conditions and
any other terms and conditions of the Agreement, the terms and conditions of these
Business Associate Terms and Conditions shall control. |
Page 3 of 3
EXHIBIT K
to
FOURTH AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
FORMS OF OPINIONS OF COUNSEL
October 16, 2008
Giro Balanced Funding Corporation
c/o Global Securitization Services
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Paradigm Funding LLC
c/o WestLB AG, New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Liberty Street Funding Corp.
c/o Global Securitization Services, LLC
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
WestLB AG, New York Branch, as Administrative Agent and as Agent
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Bayerische Landesbank, New York Branch, as Administrative Agent
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Bank of Nova Scotia, as Administrative Agent
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Each of the “Bank Investors”
(as defined in the Fourth Amended and Restated Transfer and
Administration Agreement described in this letter)
Arent Fox PLLC
0000 Xxxxxxxxxxx Xxxxxx, X.X.
Washington, D.C. 20036-5339
RE: Fresenius Medical Care Holdings, Inc., National Medical Care, Inc. and NMC
Funding Corporation — Fourth Amended and Restated Transfer and Administration Agreement
Ladies and Gentlemen
I have acted as counsel to Fresenius Medical Care Holdings, Inc., a New York corporation
(“FMCH”), and National Medical Care, Inc., a Delaware corporation (“NMC”), in connection with (a)
the Amended and Restated Receivables Purchase Agreement dated as of
October 16, 2008 between NMC, as
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Fresenius Medical Care North America |
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Corporate Headquarters: |
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000 Xxxxxx Xxxxxx
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Xxxxxxx, XX 00000
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(781) 699-9000 |
October 16, 2008
Page 2
seller, and NMC Funding Corporation (the “Transferor”), as purchaser (the “Amended Receivables
Purchase Agreement”), (b) the Fourth Amended and Restated Transfer and Administration Agreement
(“TAA”) dated as of October 16, 2008 among the Transferor, NMC as initial Collection Agent,
Paradigm Funding LLC (“Paradigm”), Giro Balanced Funding Corporation (“GBFC”), Liberty Street
Funding Corp. (“Liberty Street”), the Bank Investors listed in such agreement, Bayerische
Landesbank, Cayman Islands Branch (“BayernLB”), The Bank of Nova Scotia (“Scotiabank”), and WestLB
AG, New York Branch (“WestLB”), as Administrative Agent and as Agent (the “Agent”) for the benefit
of the Investors, (c) the Amended and Restated Parent Agreement
dated as of October 16, 2008 among
FMCH and Fresenius Medical Care AG & Co. KGaA, a partnership limited by shares organized and
existing under the laws of the Federal Republic of Germany (“FME KGaA”) in favor of the Transferor,
and the Agent (the “Amended Parent Agreement”), (d) the Amended and Restated Transferring Affiliate
Letter dated as of October 16, 2008, executed by each of the Transferring Affiliates and
acknowledged and accepted by NMC as Seller, the Transferor, as Purchaser, and the Agent (the
“Amended Transferring Affiliate Letter”), and (e) the Fourth Amended and Restated Investor Fee
Letter dated October 16, 2008 among the Transferor, WestLB, BayernLB, and Scotiabank (the “Amended
Investor Fee Letter”). I have also acted as counsel to (x) each of the corporations and other
entities listed on Schedule I to this letter (each, a “Transferring Affiliate”, and
collectively, the “Transferring Affiliates” and together with FMCH, NMC and the Transferor, the
“Parent Group Members”) and (y) for the limited purpose of rendering the opinion set forth in
Section 9(g) hereof, FME KGaA. The Amended Receivables Purchase Agreement, the TAA, the Amended
Parent Agreement, the Amended Transferring Affiliate Letter, and the Amended Investor Fee Letter
together with each of the other instruments and agreements listed on Schedule II hereto are
collectively referred to herein as the “Transaction Documents.” I am a Deputy General Counsel, Vice
President and the Assistant Secretary of FMCH. Capitalized terms not defined herein have the
meanings assigned to them in the Transaction Documents, except as otherwise indicated herein.
I have examined and relied upon such corporate records and certificates of officers of the
Parent Group Members, certificates of public officials and the representations and warranties of
the Parent Group Members in the relevant Transaction Documents, and have made such examination of
law as I deemed relevant to the opinions set forth herein. Based upon the above, and subject to the
qualifications set forth below, it is my opinion that:
1. Organization, Existence and Good Standing.
(a) FMCH is a corporation duly formed, validly existing and in good standing under the laws of
the State of New York, and is duly qualified and in good standing in each other state in which the
nature of the business it conducts or the assets it owns or leases requires such qualification and
in which the failure to be so qualified would have a Material Adverse Effect on its business or
operations.
(b) NMC is a corporation duly formed, validly existing and in good standing under the laws of
the State of Delaware, and is duly qualified and in good standing in each other state in which the
nature of the business it conducts or the assets it owns or leases requires such qualification and
in which the failure to be so qualified would have a Material Adverse Effect on its business or
operations.
(c) Each Transferring Affiliate is a corporation, limited liability company, limited
partnership or limited liability partnership, as the case may be, duly formed, validly existing and
in good standing under the laws of the state of its incorporation or organization, and is duly
qualified and in good standing in each other state in which the nature of the business it conducts
or the assets it owns or leases requires such qualification and in which the failure to be in good
standing or so qualified would have a Material Adverse Effect on the business or operations of such
Transferring Affiliate.
October 16, 2008
Page 3
2. Power and Authority.
(a) FMCH has the requisite corporate power and authority to execute and deliver, and to
perform its obligations under, each of the Transaction Documents to which it is a party.
(b) NMC has the requisite corporate power and authority to execute and deliver, and to
perform its obligations under, each of the Transaction Documents to which it is a party.
(c) Each Transferring Affiliate has the requisite power and authority to execute and deliver,
and to perform its obligations under, each of the Transaction Documents to which it is a party.
3. Due Authorization.
(a) The execution, delivery and performance of the Transaction Documents, to which it is a
party, by NMC have been duly authorized by all necessary corporate action of NMC.
(b) The execution, delivery and performance of the Transaction Documents, to which it is a
party, by each Transferring Affiliate have been duly authorized by all necessary action of each
Transferring Affiliate.
4. No Violation of Organic Documents.
(a) NMC’s execution and delivery of, and its performance of its obligations under, the
Transaction Documents to which it is a party will not violate its charter or by-laws.
(b) Each Transferring Affiliate’s execution and delivery of, and its performance of its
obligations under, the Transaction Documents to which it is a party will not violate its charter,
by-laws or other organizational documents.
5. Due Execution and Delivery; Validity; Xxxxxxx Effect and General Enforceability
(a) NMC has duly executed and delivered each of the Transaction Documents to which it is a
party.
(b) Each Transferring Affiliate has duly executed and delivered each of the Transaction
Documents to which it is a party.
(c) Assuming that the transactions contemplated by the Transaction Documents bear a reasonable
relationship to the State of New York, in any action or proceeding arising out of or relating to
any Transaction Document in any court of The Commonwealth of Massachusetts or in any federal court
sitting in The Commonwealth of Massachusetts, such court should recognize and give effect to the
provisions thereof wherein the parties agree that such Transaction Document shall be governed by,
and construed in accordance with, the laws of the State of New York. However, in the event that any
such court shall determine that any of the Transaction Documents are governed by the laws of The
Commonwealth of Massachusetts, each of the Transaction Documents constitutes the legal and valid
obligation of, and is binding on and enforceable against, each of the Parent Group Members parties
thereto.
October 16, 2008
Page 4
6. General Qualifications. The opinions set forth in Section 5 are subject to the
following qualifications:
(a) The enforceability of the Transaction Documents may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws or other equitable principles
relating to or affecting the rights of creditors or other obligees generally.
(b) The enforceability of the Transaction Documents may be limited by applicable principles of
equity, whether such principles are applied by a court of equity or a court of law, and I express
no opinion on whether a court would grant specific performance, injunctive relief or any other
equitable remedy.
(c) The provisions regarding the remedies available to the Agent on default as set forth in
the Transaction Documents may be subject to certain procedural requirements that are not expressly
stated in the Transaction Documents, but neither the existence of these procedural requirements nor
the failure to specify them in the Transaction Documents make the remedies unenforceable.
(d) A court could refuse to permit the Agent to foreclose any security interest in favor of
the Agent or enforce the Agent’s remedies under the Transaction Documents by reason of (i) a waiver
by the Agent, (ii) unconscionable conduct by the Agent, (iii) the exercise of remedies by the Agent
without providing adequate notice to FMCH, NMC or any of the Transferring Affiliates, as applicable
of the default and a reasonable opportunity to cure the default, (iv) the court’s determination
that FMCH, NMC or any of the Transferring Affiliates, as applicable are entitled to an opportunity
to be heard by the court before the Agent is entitled to exercise any remedies, (v) the court’s
determination that a remedy is a penalty or is unconscionable, (vi) the court’s determination that
the Agent is seeking to exercise remedies with respect to a breach that is immaterial or that does
not adversely affect the Agent or the Agent’s security, (vii) defenses arising from the Agent’s
failure to act in accordance with the terms and conditions of the Transaction Documents, (viii)
defenses arising as a consequence of the passage of time (e.g., laches or statutes of limitation),
(ix) defenses arising as a result of the Agent’s failure to act in a commercially reasonable manner
or in good faith or (x) public policy considerations.
(e) I express no opinion with respect to any of the following provisions if they are contained
in any of the Transaction Documents: (i) self-help, non-judicial remedies or provisions purporting
to grant a right of possession without resort to judicial action to the extent inconsistent with
the Uniform Commercial Code or other applicable law; (ii) any provisions that entitle the Agent, as
a matter of right, to the appointment of a receiver; (iii) any provisions imposing penalties,
forfeitures, increased interest/discount rates and/or late payment charges upon delinquency in
payment or the occurrence of a default; (iv) any provisions under which FMCH, NMC or any of the
Transferring Affiliates, as applicable, waive any of its legal or equitable rights except to the
extent the waived rights are expressly waivable pursuant to a statute or constitution provision;
(v) any provisions entitling the Agent to obtain reimbursement for attorneys’ fees and other costs
incurred by the Agent; (vi) any provision permitting the Agent to accelerate the Obligations or
exercise any remedies in the event of a transfer or encumbrancing of an immaterial portion of any
collateral or immaterial changes in the beneficial ownership of FMCH, NMC or any of the
Transferring Affiliates, as applicable; (vii) any provision exonerating or indemnifying the Agent
(or any agent or employee of the Agent or any party acting on behalf of the Agent) from the
consequences of its own acts or omissions; (viii) any severability provision; (ix) provisions
relating to setoff rights; (x) any provision granting a power of attorney or similar right; (xi)
any provision to the effect that rights or remedies are not exclusive, that every right or remedy
is cumulative and may be exercised in addition to or with any other right or remedy or that the
election of a particular remedy does
October 16, 2008
Page 5
not preclude recourse to one or more other remedies; (xii) any provision pursuant to which a party
has granted to another party any power to execute documents, settle claims or appear in judicial
proceedings on behalf of such party or to take any other action on behalf of such party; (xiii) any
provision which purports to affect jurisdiction or venue of any specified court or which purports
to establish evidentiary standards, or which waives trial by jury; (xiv) choice of law provision
(except as discussed in Section 5 above); (xv) any provision by which any party agrees to take
action if that party’s ability to take the action in question is subject to conditions another
party to the Transaction Documents controls; or (xvi) any provision that purports to grant the
Agent relief from any provisions of the Bankruptcy Code.
7. No Violations of Other Contracts.
(a) NMC’s execution, delivery and performance of the Transaction Documents to which it is a
party will not breach any Other Contract.
(b) Each Transferring Affiliate’s execution, delivery and performance of the Transaction
Documents to which it is a party will not breach any Other Contract.
(c) For purposes of this section, the term “Other Contract” means an indenture, mortgage, deed
of trust, loan agreement, or other material agreement or instrument of which I have knowledge, to
which, to the best of my knowledge, FMCH, NMC or any Transferring Affiliate is a party.
8. No Violations of Applicable Laws.
(a) To the best of my knowledge, NMC’s execution, delivery and performance of the
Transaction Documents to which it is a party will not violate any Applicable Law.
(b) To the best of my knowledge, the Transferor’s and each Transferring Affiliate’s execution,
delivery and performance of the Transaction Documents to which it is a party will not violate any
Applicable Law.
(c) For purposes of this paragraph, the term Applicable Law means, subject to the following
sentences, any provision of federal or Massachusetts law or regulation or Delaware General
Corporation Law that is generally applicable to organizations such as FMCH, NMC or any Transferring
Affiliate or that relates to transactions of this type. The term Applicable Law excludes federal
and state securities and blue-sky laws, tax laws, healthcare laws and related rules and
regulations.
9. No Violations of Court Decrees or Orders and other Matters.
(a) NMC’s execution, delivery and performance of the Transaction Documents to which it is a
party will not violate any Court Decree or Order.
(b) Each Transferring Affiliate’s execution, delivery and performance of the Transaction
Documents to which it is a party will not violate any Court Decree or Order.
(c) For purposes of this paragraph, the term Court Decree or Order means a decree, order or
other official action of any court or other governmental body that is, to the best of my knowledge,
specifically applicable to FMCH, NMC or any Transferring Affiliate as a named party.
October 16, 2008
Page 6
(d) The execution, delivery and performance by each Parent Group Member of the Transaction
Documents to which it is named as a party (a) to the best of my knowledge, does not result in or
require the creation of any lien, security interest or other charge or encumbrance upon or with
respect to any of such Person’s properties (except as may be specifically contemplated in the
Transaction Documents) and (b) does not require compliance with any bulk sales act or similar law.
(e) To the best of my knowledge, no authorization, approval, consent or other action by, and
no notice to or filing with, any governmental authority or regulatory body is required for the due
execution, delivery and performance by any Parent Group Member of any Transaction Document to which
it is named as a party.
(f) To the best of my knowledge, there are no actions, suits, orders, decrees, investigations,
or other proceedings pending or threatened at law, in equity, in arbitration or before any
governmental agency, commission or official against or affecting any Parent Group Member or FME
KGaA which challenges or affects the legality, validity or enforceability of any Transaction
Document or, except as otherwise disclosed in Exhibit A attached hereto, which would
otherwise be reasonably likely to have a Material Adverse Effect.
(g) To the best of my knowledge and belief there are no governmental authorization, approvals,
orders, licenses, certificates, franchises or permits of and from any governmental regulatory
officials and bodies, that are necessary in order for any Parent Group Member to own its respective
properties and to conduct its respective businesses as now being conducted, which have not been
obtained, except where the failure to have so obtained any such authorization, approvals, orders,
licenses, certificates franchises or permits, individually or in the aggregate, would not have a
Material Adverse Effect.
10. Investment Company Act. Neither FMCH, NMC, the Transferor nor any Transferring Affiliate is or
is controlled by an “investment company” within the meaning of the Investment Company Act of 1940,
as amended, and therefore none of them is subject to registration as an “investment company.”
11. Public Utility Holding Company Act. Neither FMCH, NMC, the Transferor nor any Transferring
Affiliate is a “holding company” within the meaning of the Public Utility Holding Company Act of
1935, as amended.
12. The execution, delivery and performance of the TAA and the Amended Transferring Affiliate
Letter (collectively, the “Amendments”) would not cause me to modify any of the opinions or legal
conclusions set forth in my opinion dated October 23, 2003 (the
“Original Opinion”), a copy of
which is attached hereto as Exhibit B. Subject to all applicable assumptions, limitations
and qualifications set forth in the Original Opinion and in this opinion, I hereby reaffirm such
opinions and legal conclusions as of the date hereof, both before and after giving effect to the
Amendments.
The foregoing opinion is subject in its entirety to the following qualifications:
The opinions expressed in this letter are solely for the use of the Agent, the Conduit
Investors, the Administrative Agents, and the Bank Investors and their permitted assignees and
participants, and their legal counsel. These opinions may not be relied on by any other persons,
may not be quoted in whole or in part, and may not be filed with any governmental agency, in each
case without my express prior written approval; provided that these opinions may be disclosed to,
and relied upon by, any rating agency then
October 16,
2008
Page 7
rating obligations of Paradigm, GBFC, Liberty Street, the Related CP Issuer, any Credit Support
Provider, any Liquidity Provider and Arent Fox PLLC.
The opinions expressed in this letter are rendered as of the date hereof and I express no
opinion as to circumstances or events that may occur in the future. The opinions expressed in this
letter are limited to the matters set forth in this letter, and no other opinions should be
inferred beyond the matters expressly stated.
This opinion is based and relies upon the current status of the laws of The Commonwealth of
Massachusetts and the United States, and the General Corporation Law of the State of Delaware and
in all respects this opinion is subject to and may be limited by amendments or other changes in
such laws, rules and regulations, and any future laws, rules and regulations, as well as by
developing case law.
[Signature page to follow]
October 16, 2008
Page 8
I have relied without investigation on certificates and other communications from public
officials as to matters of fact. I have executed and delivered this opinion in my capacity as an
officer of Fresenius Medical Care Holdings, Inc.
Very truly yours,
Xxxxxxx X. Xxxx
Vice President, Assistant Secretary and
Deputy General Counsel
SCHEDULE I
LIST OF TRANSFERRING AFFILIATES
|
|
|
Chief Executive Office for each
|
|
000 Xxxxxx Xxxxxx |
Transferring Affiliate:
|
|
Waltham, Massachusetts 02451 |
|
|
|
|
|
|
|
|
|
State of |
|
|
|
Transferring Affiliates |
|
Incorporation |
|
FEIN |
|
Angleton Dialysis, Inc. |
|
Texas |
|
|
* |
|
Bio-Medical Applications Home Dialysis Services, Inc. |
|
Delaware |
|
|
* |
|
Bio-Medical Applications Management Company, Inc |
|
Delaware |
|
|
* |
|
Bio-Medical Applications of Aguadilla, Inc. |
|
Delaware |
|
|
* |
|
Bio-Medical Applications of Alabama, Inc. |
|
Delaware |
|
|
* |
|
Bio-Medical Applications of Anacostia, 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 |
|
|
* |
|
|
|
|
|
|
|
|
|
|
State of |
|
|
|
Transferring Affiliates |
|
Incorporation |
|
FEIN |
|
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 |
|
|
* |
|
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 Ponce, 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 |
|
|
* |
|
Brazoria Kidney Center, Inc. |
|
Texas |
|
|
* |
|
|
|
|
|
|
|
|
|
|
State of |
|
|
|
Transferring Affiliates |
|
Incorporation |
|
FEIN |
|
Conejo Valley Dialysis, Inc. |
|
California |
|
|
* |
|
Con-Med Supply Company, Inc. |
|
Illinois |
|
|
* |
|
Diabetes Care Group, Inc. |
|
Delaware |
|
|
* |
|
Dialysis America Alabama, LLC |
|
Delaware |
|
|
* |
|
Dialysis America Georgia, LLC |
|
Delaware |
|
|
* |
|
Dialysis Associates of Northern New Jersey, L.L.C. |
|
New Jersey |
|
|
* |
|
Dialysis Centers of America — Illinois, Inc. |
|
Illinois |
|
|
* |
|
Dialysis Licensing Corp. |
|
Delaware |
|
|
* |
|
Dialysis Management Corporation |
|
Texas |
|
|
* |
|
Dialysis Services of Atlanta, Inc. |
|
Georgia |
|
|
* |
|
Dialysis Services of Cincinnati, Inc. |
|
Ohio |
|
|
* |
|
Dialysis Services, Inc. |
|
Texas |
|
|
* |
|
Dialysis Specialists of Topeka, Inc. |
|
Kansas |
|
|
* |
|
Dialysis Specialists of Tulsa, Inc. |
|
Oklahoma |
|
|
* |
|
Du Page Dialysis, Ltd. |
|
Illinois |
|
|
* |
|
Everest Healthcare Holdings, Inc. |
|
Delaware |
|
|
* |
|
Everest Healthcare Indiana, Inc. |
|
Indiana |
|
|
* |
|
Everest Healthcare Ohio, Inc. |
|
Ohio |
|
|
* |
|
Everest Healthcare Rhode Island, Inc. |
|
Delaware |
|
|
* |
|
Everest Healthcare Texas Holding Corp |
|
Delaware |
|
|
* |
|
Everest Healthcare Texas, L.P. |
|
Delaware |
|
|
* |
|
Everest Management, Inc. |
|
Delaware |
|
|
* |
|
FMS New York, Inc. |
|
Delaware |
|
|
* |
|
Xxxxxxx Dialysis Clinic, Inc. |
|
Texas |
|
|
* |
|
Fort Xxxxx Regional Dialysis Center, Inc. |
|
Missouri |
|
|
* |
|
Four State Regional Dialysis Center, Inc. |
|
Missouri |
|
|
* |
|
Fresenius Management Services, Inc. |
|
Delaware |
|
|
* |
|
Fresenius Medical Care Dialysis Services — Oregon, LLC |
|
Oregon |
|
|
* |
|
Fresenius Medical Care Dialysis Services Colorado LLC |
|
Delaware |
|
|
* |
|
Fresenius USA Home Dialysis, Inc. |
|
Delaware |
|
|
* |
|
Fresenius USA Marketing, Inc. |
|
Delaware |
|
|
* |
|
Fresenius USA Sales, Inc. |
|
Massachusetts |
|
|
* |
|
Fresenius USA, Inc. |
|
Massachusetts |
|
|
* |
|
Gulf Region Mobile Dialysis, Inc. |
|
Delaware |
|
|
* |
|
Haemo-Stat, Inc. |
|
California |
|
|
* |
|
Xxxxx Dialysis Center, LLC |
|
Georgia |
|
|
* |
|
Xxxxxx Dialysis Clinic, LLC |
|
Georgia |
|
|
* |
|
Home Dialysis of America, Inc. |
|
Arizona |
|
|
* |
|
Home Dialysis of Muhlenberg County, Inc. |
|
Kentucky |
|
|
* |
|
Home Intensive Care, Inc. |
|
Delaware |
|
|
* |
|
Jefferson County Dialysis, Inc. |
|
Arkansas |
|
|
* |
|
KDCO, Inc. |
|
Missouri |
|
|
* |
|
Kentucky Renal Care Group, LLC |
|
Delaware |
|
|
* |
|
Xxxxxx Dialysis, Inc. |
|
Arkansas |
|
|
* |
|
|
|
|
|
|
|
|
|
|
State of |
|
|
|
Transferring Affiliates |
|
Incorporation |
|
FEIN |
|
Little Rock Dialysis, Inc. |
|
Arkansas |
|
|
* |
|
Maumee Dialysis Services, LLC |
|
Delaware |
|
|
* |
|
Mercy Dialysis Center, Inc. |
|
Wisconsin |
|
|
* |
|
Miami Regional Dialysis Center, Inc. |
|
Missouri |
|
|
* |
|
Michigan Home Dialysis Center, Inc. |
|
Michigan |
|
|
* |
|
Naples Dialysis Center, LLC |
|
Florida |
|
|
* |
|
National Medical Care, Inc |
|
Delaware |
|
|
* |
|
National Nephrology Associates Management
Company of Texas, Inc. |
|
Texas |
|
|
* |
|
National Nephrology Associates of Texas, L.P. |
|
Texas |
|
|
* |
|
Neomedica, Inc |
|
Delaware |
|
|
* |
|
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, X.X.X. |
|
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 |
|
|
* |
|
North Xxxxxxx Dialysis Center, Inc. |
|
Delaware |
|
|
* |
|
Northeast Alabama Kidney Clinic, Inc. |
|
Alabama |
|
|
* |
|
Northern New Jersey Dialysis, L.L.C. |
|
Delaware |
|
|
* |
|
Northwest Dialysis, Inc. |
|
Arkansas |
|
|
* |
|
Physicians Dialysis Company, Inc. |
|
Pennsylvania |
|
|
* |
|
Qualicenters, Inc. |
|
Colorado |
|
|
* |
|
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 |
|
|
* |
|
|
|
|
|
|
|
|
|
|
State of |
|
|
|
Transferring Affiliates |
|
Incorporation |
|
FEIN |
|
RCG Xxxxxx, LLC |
|
Delaware |
|
|
* |
|
RCG Xxxxxx, LLC |
|
Delaware |
|
|
* |
|
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 |
|
|
* |
|
|
|
|
|
|
|
|
|
|
State of |
|
|
|
Transferring Affiliates |
|
Incorporation |
|
FEIN |
|
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. |
|
NewJersey |
|
|
* |
|
Renex Dialysis Facilities, Inc. |
|
Mississippi |
|
|
* |
|
Renex Dialysis Homecare of Greater St. Louis, Inc. |
|
Missouri |
|
|
* |
|
Renex Management Services, Inc. |
|
Florida |
|
|
* |
|
San Diego Dialysis Services, Inc. |
|
Delaware |
|
|
* |
|
Santa Xxxxxxx Community Dialysis Center, Inc. |
|
California |
|
|
* |
|
Smyrna Dialysis Center, LLC |
|
Georgia |
|
|
* |
|
Spectra East, Inc. |
|
Delaware |
|
|
* |
|
Spectra Laboratories, Inc. |
|
Nevada |
|
|
* |
|
SSKG, Inc. |
|
Illinois |
|
|
* |
|
STAT Dialysis Corporation |
|
Delaware |
|
|
* |
|
Stone Mountain Dialysis Center, LLC |
|
Georgia |
|
|
* |
|
Stuttgart Dialysis, LLC |
|
Arkansas |
|
|
* |
|
Xxxxxxx Dialysis Center, L.L.C. |
|
Delaware |
|
|
* |
|
Three Rivers Dialysis Services, LLC |
|
Delaware |
|
|
* |
|
West Palm Dialysis, LLC |
|
Virginia |
|
|
* |
|
Xxxxxxx Dialysis, Inc. |
|
Texas |
|
|
* |
|
WSKC Dialysis Services, Inc. |
|
Illinois |
|
|
* |
|
Schedule II
1. |
|
Amendment Agreement. |
|
2. |
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Fourth Amended and Restated Transfer and Administration Agreement. |
|
3. |
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Amended and Restated Parent Agreement, relating to changes in financial covenants and transfer of rights of Agent to WestLB. |
|
4. |
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Amended and Restated Receivables Purchase Agreement. |
|
5. |
|
Amended and Restated Transferring Affiliate Letter. |
|
6. |
|
Opinion of Xxxxxxx X. Xxxx. |
|
7. |
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Opinion of Arent Fox Xxxxxxx Xxxxxxx & Xxxx relating to corporate, UCC and other matters. |
|
8. |
|
True sale and non-consolidation opinion of Arent Fox Xxxxxxx Xxxxxxx & Xxxx. |
|
9. |
|
Opinion of German counsel. |
|
10. |
|
Certificate of the Secretary of the Transferor. |
|
11. |
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Certificate of the Secretary of the Collection Agent. |
|
12. |
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Certificate of the Secretary of each Transferring Affiliate. |
|
13. |
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Good Standing Certificates for the Transferor from the Secretary of the Commonwealth of Massachusetts and the Secretary of State of Delaware. |
|
14. |
|
Good Standing Certificates for the Collection Agent from the Secretary of the Commonwealth of Massachusetts and the Secretary of State of Delaware. |
|
15. |
|
Good Standing Certificates for each Transferring Affiliate from the Secretary of the Commonwealth of Massachusetts and the Secretary of State of Delaware. |
|
16. |
|
Fourth Amended and Restated Investor Fee Letter. |
|
17. |
|
Amended and Restated Agent Fee Letter. |
|
18. |
|
Amended and Restated Liquidity Asset Purchase Agreement for Paradigm Funding LLC. |
|
19. |
|
Third Amended and Restated Fee Letter (Helaba) relating to Paradigm LAPA. |
20. |
|
Amended and Restated Fee Letter (WestLB) relating to Paradigm LAPA. |
|
21. |
|
Bank of America Account Control Agreements. |
|
22. |
|
UCC summary. |
EXHIBIT A
The following is an excerpt from the Form 6-K filing of Fresenius Medical Care G & Co. KGaA (the
“Company”) with the Securities and Exchange Commission for the period ending June 30, 2008:
Legal Proceedings
Commercial Litigation
The Company was originally formed as a result of a series of transactions it completed
pursuant to the Agreement and Plan of Reorganization dated as of February 4,1996, by and between
X.X. Xxxxx & Co. and Xxxxxxxxx SE (the “Merger”). At the time of the Merger, a X.X. Xxxxx & Co.
subsidiary known as X.X. Xxxxx & Co.-Xxxx. had, and continues to have, significant liabilities
arising out of product-liability related litigation (including asbestos-related actions),
pre-Merger tax claims and other claims unrelated to National Medical Care, Inc. (“NMC”), which was
X.X. Xxxxx & Co.’s dialysis business prior to the Merger. In connection with the Xxxxxx, X.X. Xxxxx
& Co.-Xxxx. agreed to indemnify the Company, FMCH, and NMC against all liabilities of X.X. Xxxxx &
Co., whether relating to events occurring before or after the Merger, other than liabilities
arising from or relating to NMC’s operations. X.X. Xxxxx & Co. and certain of its subsidiaries
filed for reorganization under Chapter 11 of the U.S. Bankruptcy Code (the “Grace Chapter 11
Proceedings”) on April 2, 2001.
Prior to and after the commencement of the Grace Chapter 11 Proceedings, class action
complaints were filed against X.X. Xxxxx & Co. and FMCH by plaintiffs claiming to be creditors of
X.X. Xxxxx & Co.-Xxxx., and by the asbestos creditors’ committees on behalf of the X.X. Xxxxx & Co.
bankruptcy estate in the Grace Chapter 11 Proceedings, alleging among other things that the Merger
was a fraudulent conveyance, violated the uniform fraudulent transfer act and constituted a
conspiracy. All such cases have been stayed and transferred to or are pending before the U.S.
District Court as part of the Grace Chapter 11 Proceedings.
In 2003, the Company reached agreement with the asbestos creditors’ committees on behalf of
the X.X. Xxxxx & Co. bankruptcy estate and X.X. Xxxxx & Co. in the matters pending in the Grace
Chapter 11 Proceedings for the settlement of all fraudulent conveyance and tax claims against it
and other claims related to the Company that arise out of the bankruptcy of X.X. Xxxxx & Co. Under
the terms of the settlement agreement as amended (the “Settlement Agreement”), fraudulent
conveyance and other claims raised on behalf of asbestos claimants will be dismissed with prejudice
and the Company will receive protection against existing and potential future X.X. Xxxxx & Co.
related claims, including fraudulent conveyance and asbestos claims, and indemnification against
income tax claims related to the non-NMC members of the X.X. Xxxxx & Co. consolidated tax group
upon confirmation of a X.X. Xxxxx & Co. bankruptcy reorganization plan that contains such
provisions. Under the Settlement Agreement, the Company will pay a total of $115,000 without
interest to the X.X. Xxxxx & Co. bankruptcy estate, or as otherwise directed by the Court, upon
plan confirmation. No admission of liability has been or will be made. The Settlement Agreement has
been approved by the U.S. District Court. Subsequent to the Xxxxxx, X.X. Xxxxx & Co. was involved
in a multi-step transaction
1
involving Sealed Air Corporation (“Sealed Air,” formerly known as Grace Holding, Inc.). The Company
is engaged in litigation with Sealed Air to confirm its entitlement to indemnification from Sealed
Air for all losses and expenses incurred by the Company relating to pre-Merger tax liabilities and
Merger-related claims. Under the Settlement Agreement, upon confirmation of a plan that satisfies
the conditions of the Company’s payment obligation, this
litigation will be dismissed with prejudice.
In April 2008, X.X. Xxxxx & Co. announced an agreement in principle with the asbestos
creditors’ and equity security holders’ committees in the Grace Chapter 11 Proceedings to settle
all present and future asbestos-related personal injury claims. The agreement in principle and X.X.
Xxxxx & Co.’s related bankruptcy reorganization plan are subject to conditions including resolution
of claims of other creditors and Bankruptcy Court and District Court approvals.
On April 4, 2003, FMCH filed a suit in the U. S. District Court for the Northern District of
California, styled Fresenius USA, Inc., et al., x. Xxxxxx International Inc., et al., Case No. C
03-1431, seeking a declaratory judgment that FMCH does not infringe on patents held by Xxxxxx
International Inc. and its subsidiaries and affiliates (“Baxter”), that the patents are invalid,
and that Baxter is without right or authority to threaten or maintain suit against FMCH for alleged
infringement of Xxxxxx’x patents. In general, the alleged patents concern the use of touch screen
interfaces for hemodialysis machines. Baxter filed counterclaims against FMCH seeking more than
$140,000 in monetary damages and injunctive relief, and alleging that FMCH willfully infringed on
Xxxxxx’x patents. On July 17, 2006, a jury verdict was entered in favor of FMCH finding that all
the asserted claims of the Baxter patents are invalid as obvious and/or anticipated in light of
prior art. On February 13, 2007, the court granted Xxxxxx’x motion to set aside the jury’s verdict
in favor of FMCH and reinstated the patents and entered judgment of infringement. Following a
retrial on damages, the court entered judgment on November 6, 2007 in favor of Baxter on a jury
award of $14,300. On April 4, 2008, the court denied Xxxxxx’x motion for a new trial, established a
royalty payable to Baxter of 10% of the sales price for continuing sales of FMCH’s 2008K
hemodialysis machines and 7% of the sales price of related disposables, parts and service beginning
November 7, 2007, and enjoined sales of the 2008K machine effective January 1, 2009. We have
appealed the court’s rulings to the Court of Appeals for the Federal Circuit. We are confident that
we will prevail on appeal and have made no provision in our financial statements for any potential
liability in this matter. If we are unsuccessful on all appeals, including any appeal of the
royalty, the royalties payable to Baxter on the machines and disposable supplies that are subject
to the court’s order are estimated to be in the range of $2 million to $4 million per month. In the
interim period until our appeal is decided, we are funding a court-approved escrow account at the
rate noted above. If we win the appeal, the escrowed funds will be returned to us with interest. We
are pursuing design modifications to the 2008K machine that we expect will limit the scope of
royalty payment exposure and permit the continued sale of the modified 2008K machine after the
January 1, 2009 injunction effective date, irrespective of the outcome of our appeal.
Gambro Pty Limited and Gambro Lundia AB (“Gambro AB” and, together with Gambro Pty Limited,
“the Gambro Group”) commenced litigation against FMC AG & Co. KGaA’s Australian subsidiary,
Fresenius Medical Care Australia Pty Limited (“Fresenius Medical Care Australia”) regarding
infringement and damages with respect to a Gambro AB patent protecting
2
intellectual property in relation to a system for preparation of dialysis or replacement fluid, the
Gambro Bicart device in Australia (the “Gambro Patent”). As a result of the commercialization of a
system for the preparation of dialysis fluid based on the Fresenius Medical Care Bibag device in
Australia, the Australian courts concluded that Fresenius Medical Care Australia infringed the
Gambro Patent. In May 2008, the Gambro Group and Fresenius Medical Care Australia and FMC AG & Co.
KGaA entered into a Deed of Settlement and Release pursuant to which Xxxxxxxxx Medical Care made
certain cash payments to the Gambro Group and pursuant to which the proceedings and all claims
under the Gambro Patent, including any claims for relief for losses alleged to have been incurred
after the expiry of the Gambro Patent, were resolved.
Two patent infringement actions have been pending in Germany between Gambro Industries
(“Gambro”) on the one side and D-GmbH and FMC AG & Co. KGaA on the other side (hereinafter
collectively “Fresenius Medical Care”). Xxxxxx herein alleged patent infringements concerning a
patent on a device for the preparation of medical solutions by Fresenius Medical Care. The first
case was dismissed as being unfounded. Such decision has already become final. In the second case,
the District Court of Mannheim rendered a judgement on June 27, 2008 deciding in favor of Xxxxxx
and declaring that Fresenius Medical Care has infringed a patent claim. Accordingly, the court
ordered Xxxxxxxxx Medical Care to pay compensation (to be determined in a separate court
proceeding) for alleged infringement and to stop offering the alleged patent infringing technology
in its current form in Germany. Such verdict could be enforced provisionally by way of security to
be deposited by Xxxxxx, however the Company has received no notice that Xxxxxx has applied for
provisional enforceability, as yet. D-GmbH brought an invalidity action in the Federal German
Patent Court (“BPatG”) against Xxxxxx’s patent. This case is currently pending with the Federal
Court of Justice as the court of appeal. Fresenius Medical Care has also filed an appeal against
the District Court’s verdict. Irrespective of the outcome of the appeal, Xxxxxxxxx Medical Care
pursues to develop design modifications to the concerned devices that Fresenius Medical Care
expects will enable it to provide an alternative technical solution. In view of the pending appeal
against BPatG’s verdict and Xxxxxxxxx Medical Care’s appeal against the District Court’s verdict,
Fresenius Medical Care continues to believe that the alleged patent infringing technology does not
infringe any valid patent claims of Gambro. Therefore, the Company has made no provision in the
financial statements for any potential liability in this matter.
Other Litigation and Potential Exposures
Renal Care Group (“RCG”) was named as a nominal defendant in a second amended complaint filed
September 13, 2006 in the Chancery Court for the State of Tennessee Twentieth Judicial District at
Nashville against former officers and directors of RCG which purports to constitute a class action
and derivative action relating to alleged unlawful actions and breaches of fiduciary duty in
connection with the Company’s acquisition of RCG (the “RCG Acquisition”) and in connection with
alleged improper backdating and/or timing of stock option grants. The amended complaint was styled
Indiana State District Council of Laborers and Hod Carriers Pension Fund, on behalf of itself and
all others similarly situated and derivatively on behalf of RCG, Plaintiff, vs. RCG, Xxxx Xxxxxxxx,
Xxxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx,
Xxxxxxx X. XxXxxxxx, Xxxxx X. Xxxx, C.
3
Xxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxxx Xxxxx and X. Xxxx Xxxxxxx, Defendants. The complaint sought
damages against former officers and directors and did not state a claim for money damages directly
against RCG. On August 30, 2007, this suit was dismissed by the trial court without leave to amend.
Plaintiff subsequently appealed and the matter remains pending in the appellate court of Tennessee.
In October 2004, FMCH and its subsidiaries, including RCG (prior to the RCG Acquisition),
received subpoenas from the U.S. Department of Justice, Eastern District of New York in connection
with a civil and criminal investigation, which requires production of a broad range of documents
relating to FMCH’s and RCG’s operations, with specific attention to documents relating to
laboratory testing for parathyroid hormone (“PTH”) levels and vitamin D therapies. The Company is
cooperating with the government’s requests for information. The Company believes that it has
fulfilled all requests for information made by government investigators in this matter, and that it
has complied with applicable laws relating to PTH testing and use of vitamin D therapies.
FMCH and its subsidiaries, including RCG (prior to the RCG Acquisition), received a subpoena
from the U.S. Department of Justice, Eastern District of Missouri, in connection with a joint civil
and criminal investigation. FMCH received its subpoena in April 2005. RCG received its subpoena in
August 2005. The subpoenas require production of a broad range of documents relating to FMCH’s and
RCG’s operations, with specific attention to documents related to clinical quality programs,
business development activities, medical director compensation and physician relationships, joint
ventures, and anemia management programs, RCG’s supply company, pharmaceutical and other services
that RCG provides to patients, RCG’s relationships to pharmaceutical companies, and RCG’s purchase
of dialysis equipment from FMCH. The Office of the Inspector General of the U.S. Department of
Health and Human Services and the U.S. Attorney’s office for the Eastern District of Texas have
also confirmed that they are participating in the review of the anemia management program issues
raised by the U.S. Attorney’s office for the Eastern District of Missouri. On July 17, 2007, the
U.S. Attorney’s office filed a civil complaint against RCG and FMCH in its capacity as RCG’s
current corporate parent in United States District Court, Eastern District of Missouri. The
complaint seeks monetary damages and penalties with respect to issues arising out of the operation
of RCG’s Method II supply company through 2005, prior to the date of FMCH’s acquisition of RCG. The
complaint is styled United States of America ex rel. Xxxxx Xxxxxxxx et al. vs. Renal Care Group,
Renal Care Group Supply Company and FMCH. The Company believes that RCG’s operation of its Method
II supply company was in compliance with applicable law and will defend this litigation vigorously.
We will continue to cooperate in the ongoing investigation.
In May 2006, RCG received a subpoena from the U.S. Department of Justice, Southern District of
New York in connection with an investigation into RCG’s administration of its stock option programs
and practices, including the procedure under which the exercise price was established for certain
of the option grants. The subpoena required production of a broad range of documents relating to
the RCG stock option program prior to the RCG Acquisition. The Company believes that is has
fulfilled all requests for information made by government investigators in this matter, and that
RCG complied with applicable laws relating to the issuance of stock options.
4
In August 2007, the Sheet Metal Workers National Pension Fund filed a complaint in the United
States District Court for the Central District of California, Western Division (Los Angeles),
alleging that Amgen, Inc., the Company and DaVita Inc., marketed Amgen’s products, Epogen® and
Aranesp®, to hemodialysis patients for uses not approved by the FDA and thereby caused a putative
class of commercial insurers to pay for unnecessary prescriptions of these products. Although the
court dismissed the original allegations against the Company, it granted plaintiff leave to amend
and this litigation was subsequently consolidated with other cases against Epogen® and Aranesp®
Off-Label Marketing and Sales Practices Multidistrict Litigation and assigned to the Central
District of California. On July 2, 2008, a consolidated complaint was filed in the Multidistrict
Litigation that renews allegations against the Company and DaVita, in addition to those against
Amgen.
On November 27, 2007, the United States District Court for the Western District of Texas (El
Paso) unsealed and permitted service of two complaints previously filed under seal by a qui tam
relator, a former FMCH local clinic employee (Qui tam is a legal provision under the United States
False Claims Act, which allows for private individuals to bring suit on behalf of the U.S. federal
government, as far as such individuals believe to have knowledge of presumable fraud committed by
third parties). The first complaint alleges that a nephrologist unlawfully employed in his practice
an assistant to perform patient care tasks that the assistant was not licensed to perform and that
Medicare xxxxxxxx by the nephrologist and FMCH therefore violated the False Claims Act. The second
complaint alleges that FMCH unlawfully retaliated against the relator by discharging her from
employment constructively. The United States Attorney for the Western District of Texas has
declined to intervene and to prosecute on behalf of the United States. Counsel for the nephrologist
has asserted that a criminal investigation of the relator’s allegations is continuing and has moved
the Court to stay all activity in the qui tam until the alleged criminal investigation has
concluded. FMCH has received no other notice of the pendency of any criminal investigation related
to this matter.
From time to time, the Company is a party to or may be threatened with other litigation or
arbitration, claims or assessments arising in the ordinary course of its business. Management
regularly analyzes current information including, as applicable, the Company’s defenses and
insurance coverage and, as necessary, provides accruals for probable liabilities for the eventual
disposition of these matters.
The Company, like other health care providers, conducts its operations under intense
government regulation and scrutiny. It must comply with regulations which relate to or govern the
safety and efficacy of medical products and supplies, the operation of manufacturing facilities,
laboratories and dialysis clinics, and environmental and occupational health and safety. The
Company must also comply with the Anti-Kickback Statute, the False Claims Act, the Xxxxx Statute,
and other federal and state fraud and abuse laws. Applicable laws or regulations may be amended, or
enforcement agencies or courts may make interpretations that differ from the Company’s
interpretations or the manner in which it conducts its business. Enforcement has become a high
priority for the federal government and some states. In addition, the provisions of the False
Claims Act authorizing payment of a portion of any recovery to the party bringing the suit
encourage private plaintiffs to commence “whistle blower” actions. By virtue of this
5
regulatory environment, as well as the Company’s corporate integrity agreement with the U.S.
federal government, the Company’s business activities and practices are subject to extensive review
by regulatory authorities and private parties, and continuing audits, investigative demands,
subpoenas, other inquiries, claims and litigation relating to the Company’s compliance with
applicable laws and regulations. The Company may not always be aware that an inquiry or action has
begun, particularly in the case of “whistle blower” actions, which are initially filed under court
seal.
The Company operates many facilities throughout the United States. In such a decentralized
system, it is often difficult to maintain the desired level of oversight and control over the
thousands of individuals employed by many affiliated companies. The Company relies upon its
management structure, regulatory and legal resources, and the effective operation of its compliance
program to direct, manage and monitor the activities of these employees. On occasion, the Company
may identify instances where employees, deliberately or inadvertently, have submitted inadequate or
false xxxxxxxx. The actions of such persons may subject the Company and its subsidiaries to
liability under the Anti-Kickback Statute, the Xxxxx Statute and the False Claims Act, among other
laws.
Physicians, hospitals and other participants in the health care industry are also subject to a
large number of lawsuits alleging professional negligence, malpractice, product liability, worker’s
compensation or related claims, many of which involve large claims and significant defense costs.
The Company has been and is currently subject to these suits due to the nature of its business and
expects that those types of lawsuits may continue. Although the Company maintains insurance at a
level which it believes to be prudent, it cannot assure that the coverage limits will be adequate
or that insurance will cover all asserted claims. A successful claim against the Company or any of
its subsidiaries in excess of insurance coverage could have a material adverse effect upon it and
the results of its operations. Any claims, regardless of their merit or eventual outcome, could
have a material adverse effect on the Company’s reputation and business.
The Company has also had claims asserted against it and has had lawsuits filed against it
relating to alleged patent infringements or businesses that it has acquired or divested. These
claims and suits relate both to operation of the businesses and to the acquisition and divestiture
transactions. The Company has, when appropriate, asserted its own claims, and claims for
indemnification. A successful claim against the Company or any of its subsidiaries could have a
material adverse effect upon its business, financial condition, and the results of its operations.
Any claims, regardless of their merit or eventual outcome, could have a material adverse effect on
the Company’s reputation and business.
Accrued Special Charge for Legal Matters
At December 31, 2001, the Company recorded a pre-tax special charge of $258,159 to reflect
anticipated expenses associated with the defense and resolution of pre-Merger tax claims,
Merger-related claims, and commercial insurer claims. The costs associated with the Settlement
Agreement and settlements with insurers have been charged against this accrual. With the
6
exception of the proposed $115,000 payment under the Settlement Agreement, all other matters
included in the special charge have been resolved. While the Company believes that its remaining
accrual reasonably estimates its currently anticipated costs related to the continued defense and
resolution of this matter, no assurances can be given that its actual costs incurred will not
exceed the amount of this accrual.
7
EXHIBIT B
Fresenius Medical Care
October 23, 2003
Giro Multi-Funding Corporation
c/o Global Securitization Services
110 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Paradigm Funding LLC
c/o WestLB AG, New York Branch
1200 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Asset One Securitization, LLC
c/o AMACAR Group, LLC
6500 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Liberty Street Funding Corp.
c/o Global Securitization Services, LLC
110 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
WestLB AG, New York Branch, as Administrative Agent and as Agent
1200 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Bayerische Landesbank, New York Branch, as Administrative Agent
560 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Société Générale, as Administrative Agent
1200 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
The Bank of Nova Scotia, as Administrative Agent
Onx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Each of the “Bank Investors”
(as defined in the Third Amended and Restated Transfer and
Administration Agreement described in this letter)
Arent Fox Xxxxxxx Xxxxxxx & Xxxx
1000 Xxxxxxxxxxx Xxxxxx, X.X.
Xashington, D.C. 20036-5339
Fresenius Medical Care North America
Corporate Headquarters 95 Xxxxxx Xxxxxx Xxxxxxxxx, XX 00000-0192 781-402-9000
October 23, 2003
Page 2
|
|
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RE: |
|
Fresenius Medical Care Holdings, Inc., National Medical Care, Inc. and NMC
Funding Corporation — Third Amended and Restated Transfer and Administration Agreement |
Ladies and Gentlemen
I have acted as counsel to Fresenius Medical Care Holdings, Inc., a New York corporation
(“FMCH”), and National Medical Care, Inc., a Delaware corporation (“NMC”), in connection with (a)
the Receivables Purchase Agreement dated as of August 28, 1997 between NMC, as seller, and NMC
Funding Corporation (the “Transferor”), as purchaser (as amended, the “Receivables Purchase
Agreement”), (b) the Third Amended and Restated Transfer and Administration Agreement (as
amended, the “TAA”) dated as of October 23, 2003 among the Transferor, NMC as initial Collection
Agent, Paradigm Funding LLC (“Paradigm”), Giro Multi-Funding Corporation (“GMFC”), Asset One
Securitization, LLC (“Asset One”), Liberty Street Funding Corp. (“Liberty Street”), the Bank
Investors listed in such agreement, Bayerische Landesbank, New York Branch (“BayernLB”), Société
Générale (“SG”), The Bank of Nova Scotia (“Scotiabank”) and WestLB AG, New York Branch
(“WestLB”), as Administrative Agent and as Agent for the benefit of the Investors, (c) the Parent
Agreement dated as of August 28, 1997 among FMCH and Fresenius Medical Care AG , a corporation
organized and existing under the laws of the Federal Republic of Germany (“FMCAG”) in favor of
the Transferor, and the Agent (as amended by amendments Nos. 1-6 and by Amendment No. 7 dated the
date hereof, the “Parent Agreement”), (d) the Transferring Affiliate Letter dated as of August
28, 1997 between NMC, as Seller, and each of the Transferring Affiliates (as amended from time to
time, the “Transferring Affiliate Letter”), (e) the Investor Fee Letter dated October 23, 2003
among the Transferor, WestLB, BLB, SG, and Scotiabank (the “Investor Fee Letter”), (f) the Agent
Fee Letter among the Transferor and WestLB dated October 23, 2003 (the “Agent Fee Letter”), and
(g) the Amendment Agreement among the Transferor, NMC, GMFC, Asset One, BayernLB, SG, WestLB,
Bank of Ameirca, N.A., and the other-parties thereto, dated as of October 23, 2003 (the
“Amendment Agreement”). I have also acted as counsel to (x) each of the
corporations listed on Schedule I to this letter (each, a “Transferring Affiliate”, and
collectively, the “Transferring Affiliates” and together with FMCH, NMC and the Transferor
collectively, the “Parent Group Members”) and (y) for the limited purpose of rendering the
opinion set forth in Section 9(g) hereof, FMCAG. The Receivables Purchase Agreement, the TAA, the
Parent Agreement, the Transferring Affiliate Letter, the Investor Fee Letter, the Agent Fee
Letter and the Amendment Agreement together with each of the other instruments and agreements
listed on Schedule II hereto are collectively referred to herein as the “Transaction
Documents.” I am a Deputy General Counsel, Vice President and the Assistant Secretary of FMCH.
Capitalized terms not defined herein have the meanings assigned to them in the Transaction
Documents, except as otherwise indicated herein.
I have examined and relied upon such corporate records and certificates of officers of the
Parent Group Members, certificates of public officials and the representations and warranties
of the Parent Group Members in the relevant Transaction Documents, and have made such
examination of law as I deemed relevant to the opinions set forth herein. Based upon the above,
and subject to the qualifications set forth below, it is my opinion that:
1. Organization, Existence and Good Standing.
(a) FMCH is a corporation duly formed, validly existing and in good standing under the
laws of the State of New York, and is duly qualified and in good standing in each other state
in which the nature of the business it conducts or the assets it owns or leases requires such
qualification and in which the failure to be so qualified would have a Material Adverse Effect
on its business or operations.
October 23, 2003
Page 3
(b) NMC is a corporation duly formed, validly existing and in good standing under the laws
of the State of Delaware, and is duly qualified and in good standing in each other state in
which the nature of the business it conducts or the assets it owns or leases requires such qualification and
in which the failure to be so qualified would have a Material Adverse Effect on its business or
operations.
(c) Except as set forth in Schedule 1(c) hereto, each Transferring Affiliate is a corporation duly
formed, validly existing and in good standing under the laws of the state of its
incorporation, and is duly qualified and in good standing in each other state in which the nature of the business
it conducts or the assets it owns or leases requires such qualification and in which the failure to be in
good standing or so qualified would have a Material Adverse Effect on the business or operations of such
Transferring Affiliate.
2. Power and Authority.
(a) FMCH has the requisite corporate power and authority to execute and deliver, and to
perform its obligations under, each of the Transaction Documents to which it is a party.
(b) NMC has the requisite corporate power and authority to execute and deliver, and to
perform its obligations under, each of the Transaction Documents to which it is a party.
(c) Each Transferring Affiliate has the requisite corporate power and authority to execute
and deliver, and to perform its obligations under, each of the Transaction Documents to which it
is a party.
3. Due Authorization.
(a) The execution, delivery and performance of the Parent Agreement by FMCH have been duly
authorized by all necessary corporate action of FMCH.
(b) The execution, delivery and performance of the Transaction Documents, to which
it is a party, by NMC have been duly authorized by all necessary corporate action of NMC.
(c) The execution, delivery and performance of the Transaction Documents, to which it is a
party, by each Transferring Affiliate have been duly authorized by all necessary corporate action
of each Transferring Affiliate.
4. No Violation of Organic Documents.
(a) FMCH’s execution and delivery of, and its performance of its obligations under, the
Parent Agreement will not violate its charter or
by-laws.
(b) NMC’s execution and delivery of, and its performance of its obligations under, the
Transaction Documents to which it is a party will not violate its charter or by-laws.
(c) Each Transferring Affiliate’s execution and delivery of, and its performance of its
obligations under, the Transaction Documents to which it is a party will not violate its
charter or by-laws.
5. Due Execution and Delivery; Validity; Xxxxxxx Effect and General
Enforceability
(a) FMCH has duly executed and delivered the Parent Agreement.
October 23, 2003
Page 4
(b) NMC has duly executed and delivered each of the Transaction Documents to which it is a
party.
(c) Each Transferring Affiliate has duly executed and delivered each of the Transaction
Documents to which it is a party.
(d) The Parent Agreement constitutes the legal and valid obligation of, and is binding on and
enforceable against, FMCH in accordance with its terms.
(e) Assuming that the transactions contemplated by the Transaction Documents bear a
reasonable relationship to the State of New York, in any action or proceeding arising out of
or relating to any Transaction Document in any court of The Commonwealth of Massachusetts or in any federal
court sitting in The Commonwealth of Massachusetts, such court should recognize and give effect to
the provisions thereof wherein the parties agree that such Transaction Document shall be governed
by, and construed in accordance with, the laws of the State of New York. However, in the event that
any such court shall determine that any of the Transaction Documents are governed by the laws of The
Commonwealth of Massachusetts, each of the Transaction Documents constitutes the legal and
valid obligation of, and is binding on and enforceable against, each of the Parent Group Members
parties thereto.
6. General Qualifications. The opinions set forth in Section 5 are subject to the following
qualifications:
(a) The enforceability of the Transaction Documents may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other laws or other equitable
principles relating to or affecting the rights of creditors or other obligees generally.
(b) The enforceability of the Transaction Documents may be limited by applicable principles
of equity, whether such principles are applied by a court of equity or a court of law, and I
express no opinion on whether a court would grant specific performance, injunctive relief or any
other equitable remedy.
(c) The provisions regarding the remedies available to the Agent on default as set forth in
the Transaction Documents may be subject to certain procedural requirements that are not expressly
stated in the Transaction Documents, but neither the existence of these procedural requirements nor the
failure to specify them in the Transaction Documents make the remedies unenforceable.
(d) A court could refuse to permit the Agent to foreclose any security interest in favor of
the Agent or enforce the Agent’s remedies under the Transaction Documents by reason of (i) a
waiver by the Agent, (ii) unconscionable conduct by the Agent, (iii) the exercise of remedies by the Agent
without providing adequate notice to FMCH, NMC or any of the Transferring Affiliates, as applicable of
the default and a reasonable opportunity to cure the default, (iv) the court’s determination that
FMCH, NMC or any of the Transferring Affiliates, as applicable are entitled to an opportunity to be
heard by the court before the Agent is entitled to exercise any remedies, (v) the court’s determination that a
remedy is a penalty or is unconscionable, (vi) the court’s determination that the Agent is seeking to
exercise remedies with respect to a breach that is immaterial or that does not adversely affect the Agent or the
Agent’s security, (vii) defenses arising from the Agent’s failure to act in accordance with the terms
and conditions of the Transaction Documents, (viii) defenses arising as a consequence of the passage of time
(e.g., laches or statutes of limitation), (ix) defenses arising as a result of the Agent’s failure to act in
a commercially reasonable manner or in good faith or (x) public policy considerations.
October 23, 2003
Page 5
(e) I express no opinion with respect to any of the following provisions if they are
contained in any of the Transaction Documents: (i) self-help, non-judicial remedies or provisions
purporting to grant a right of possession without resort to judicial action to the extent
inconsistent with the Uniform Commercial Code or other applicable law; (ii) any provisions that
entitle the Agent, as a matter of right, to the appointment of a receiver; (iii) any provisions
imposing penalties, forfeitures, increased interest/discount rates and/or late payment charges
upon delinquency in payment or the occurrence of a default; (iv) any provisions under which FMCH,
NMC or any of the Transferring Affiliates, as applicable, waive any of its legal or equitable
rights except to the extent the waived rights are expressly waivable pursuant to a statute or
constitution provision; (v) any provisions entitling the Agent to obtain reimbursement for
attorneys’ fees and other costs incurred by the Agent; (vi) any provision permitting the Agent to
accelerate the Obligations or exercise any remedies in the event of a transfer or encumbrancing
of an immaterial portion of any collateral or immaterial changes in the beneficial ownership of
FMCH, NMC or any of the Transferring Affiliates, as applicable; (vii) any provision exonerating
or indemnifying the Agent (or any agent or employee of the Agent or any party acting on behalf of
the Agent) from the consequences of its own acts or omissions; (viii) any severability provision;
(ix) provisions relating to setoff rights; (x) any provision granting a power of attorney or
similar right; (xi) any provision to the effect that rights or remedies are not exclusive, that
every right or remedy is cumulative and may be exercised in addition to or with any other right
or remedy or that the election of a particular remedy does not preclude recourse to one or more
other remedies; (xii) any provision pursuant to which a party has granted to another party any
power to execute documents, settle claims or appear in judicial proceedings on behalf of such
party or to take any other action on behalf of such party; (xiii) any provision which purports to
affect jurisdiction or venue of any specified court or which purports to establish evidentiary
standards, or which waives trial by jury; (xiv) choice of law provision (except as discussed in
Section 5 above); (xv) any provision by which any party agrees to take action if that party’s
ability to take the action in question is subject to conditions another party to the Transaction
Documents controls; or (xvi) any provision that purports to grant the Agent relief from any
provisions of the Bankruptcy Code.
7. No Violations of Other Contracts.
(a) FMCH’s execution, delivery and performance of the Parent Agreement will not breach any
Other Contract.
(b) NMC’s execution, delivery and performance of the Transaction Documents to which it is
a party will not breach any Other Contract.
(c) Each Transferring Affiliate’s execution, delivery and performance of the Transaction
Documents to which it is a party will not breach any Other Contract.
(d) For purposes of this section, the term “Other Contract” means an indenture, mortgage,
deed of trust, loan agreement, or other material agreement or instrument of which I have
knowledge, to which, to the best of my knowledge, FMCH, NMC or any Transferring Affiliate is a party.
8. No Violations of Applicable Laws.
(a) To the best of my knowledge, FMCH’s execution, delivery and performance of the
Parent Agreement will not violate any Applicable Law.
(b) To the best of my knowledge, NMC’s execution, delivery and performance of the
Transaction Documents to which it is a party will not violate any Applicable Law.
October 23, 2003
Page 6
(c) To the best of my knowledge, the Transferor’s and each Transferring Affiliate’s
execution, delivery and performance of the Transaction Documents to which it is a party will
not violate any Applicable Law.
(d) For purposes of this paragraph, the term Applicable Law means, subject to the following
sentences, any provision of federal or Massachusetts law or regulation or Delaware General
Corporation Law that is generally applicable to organizations such as FMCH, NMC or any Transferring
Affiliate or that relates to transactions of this type. The term Applicable Law excludes federal and state
securities and blue-sky laws, tax laws, healthcare laws and related rules and regulations.
9. No Violations of Court Decrees or Orders and other Matters.
(a) FMCH’s execution, delivery and performance of the Parent Agreement will not violate
any Court Decree or Order.
(b) NMC’s execution, delivery and performance of the Transaction Documents to which it is
a party will not violate any Court Decree or Order.
(c) Each Transferring Affiliate’s execution, delivery and performance of the Transaction
Documents to which it is a party will not violate any Court Decree or Order.
(d) For purposes of this paragraph, the term Court Decree or Order means a decree, order or
other official action of any court or other governmental body that is, to the best of my
knowledge, specifically applicable to FMCH, NMC or any Transferring Affiliate as a named party.
(e) The execution, delivery and performance by each Parent Group Member of the
Transaction Documents to which it is named as a party (a) to the best of my knowledge, does
not result in or require the creation of any lien, security interest or other charge or encumbrance upon or
with respect to any of such Person’s properties (except as may be specifically contemplated in the
Transaction Documents) and (b) does not require compliance with any bulk sales act or similar law.
(f) To the best of my knowledge, no authorization, approval, consent or other action by, and
no notice to or filing with, any governmental authority or regulatory body is required for the
due execution, delivery and performance by any Parent Group Member of any Transaction Document to
which it is named as a party.
(g) To the best of my knowledge, there are no actions, suits, orders, decrees, investigations,
or other proceedings pending or threatened at law, in equity, in arbitration or before any
governmental agency, commission or official against or affecting any Parent Group Member or FMCAG which
challenges or affects the legality, validity or enforceability of any Transaction Document or,
except as otherwise disclosed in Exhibit A attached hereto, which would otherwise be reasonably
likely to have a Material Adverse Effect.
(h) To the best of my knowledge and belief there are no governmental authorization, approvals,
orders, licenses, certificates, franchises or permits of and from any governmental regulatory
officials and bodies, that are necessary in order for any Parent Group Member to own its respective
properties and to conduct its respective businesses as now being conducted, which have not been
obtained, except where the failure to have so obtained any such authorization, approvals, orders,
licenses, certificates franchises or permits, individually or in the aggregate, would not have a
Material Adverse Effect.
October 23, 2003
Page 7
10. Investment Company Act. Neither FMCH, NMC, the Transferor nor any Transferring Affiliate is
or is controlled by an “investment company” within the meaning of the Investment Company Act of
1940, as amended, and therefore none of them is subject to registration as an “investment company.”
11. Public Utility Holding Company Act. Neither FMCH, NMC, the Transferor nor any Transferring
Affiliate is a “holding company” within the meaning of the Public Utility Holding Company Act of
1935,
as amended.
12. The execution, delivery and performance of the TAA and the Parent Agreement (collectively, the
“Amendments”) would not cause me to modify any of the opinions or legal conclusions set forth in my
opinion dated September 27, 1999 (the “Original Opinion”), a copy of which is attached hereto as
Exhibit B. Subject to all applicable assumptions, limitations and qualifications set forth in the
Original Opinion
and in this opinion, I hereby reaffirm such opinions and legal conclusions as of the date hereof,
both
before and after giving effect to the Amendments.
The foregoing opinion is subject in its entirety to the following qualifications:
The opinions expressed in this letter are solely for the use of the Agent, the Conduit
Investors, the Administrative Agents, and the Bank Investors and their permitted assignees and
participants, and their legal counsel. These opinions may not be relied on by any other persons,
may not be quoted in whole or in part, and may not be filed with any governmental agency, in each
case without my express prior written approval; provided that these opinions may be disclosed to,
and relied upon by, any rating agency then rating obligations of Paradigm, Asset One, GMFC,
Liberty Street, the Related CP Issuer, any Credit Support Provider, any Liquidity Provider and
Arent, Fox, Xxxxxxx, Xxxxxxx & Xxxx.
The opinions expressed in this letter are rendered as of the date hereof and I express no
opinion as to circumstances or events that may occur in the future. The opinions expressed in this letter
are limited to the matters set forth in this letter, and no other opinions should be inferred beyond the
matters expressly stated.
This opinion is based and relies upon the current status of the laws of The Commonwealth of
Massachusetts and the United States, and the General Corporation Law of the State of Delaware and
in all respects this opinion is subject to and may be limited by amendments or other changes in
such laws, rules and regulations, and any future laws, rules and regulations, as well as by
developing case law.
I have relied without investigation on certificates and other communications from public
officials as to matters of fact. I have executed and delivered this opinion in my capacity as an
officer of Fresenius Medical Care Holdings, Inc.
Very truly yours,
Xxxxxxx X. Xxxx
Vice President, Assistant Secretary and
Deputy General Counsel
October 23, 2003
Page 8
Schedule 1(c)
Dialysis Specialists of Topeka, Inc. is currently not in good standing. The company did not file
its 2003 Annual Report. The company is in the process of filing the report and will then be in good
standing.
Santa Xxxxxxx Community Dialysis Services, Inc. is currently not in good standing. The company did
not file a Statement of Information. The company is in the process of filing the statement and
paying the necessary fees and will then be in good standing.
SCHEDULE I
LIST OF TRANSFERRING AFFILIATES
|
|
|
Chief Executive Office for each |
|
00 Xxxxxx Xxxxxx |
Transferring Affiliate: |
|
Lexington, Massachusetts 02420-9192 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Original Transferring Affiliates |
|
State of |
|
|
|
(before December 21, 2001) |
|
Incorporation |
|
FEIN |
|
Bio-Medical Applications Management Company, Inc. |
|
Delaware |
|
|
* |
|
Bio-Medical Applications of Aquadilla, Inc. |
|
Delaware |
|
|
* |
|
Bio-Medical Applications of Alabama, Inc. |
|
Delaware |
|
|
* |
|
Bio-Medical Applications of Anacostia, Inc. |
|
Delaware |
|
|
* |
|
Bio-Medical Applications of Arecibo, Inc. |
|
Delaware |
|
|
* |
|
Bio-Medical Applications of Arizona, Inc. |
|
Delaware |
|
|
* |
|
Bio-Medical Applications of Arkansas, Inc. |
|
Delaware |
|
|
* |
|
Bio-Medical Applications of Bayamon, 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 Columbia Heights, Inc. |
|
Delaware |
|
|
* |
|
Bio-Medical Applications of Connecticut, Inc. |
|
Delaware |
|
|
* |
|
Bio-Medical Applications of Delaware, Inc. |
|
Delaware |
|
|
* |
|
Bio-Medical Applications of East Orange, Inc. |
|
Delaware |
|
|
* |
|
Bio-Medical Applications of Eureka, 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 Hillside, 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 Irvington, Inc. |
|
Delaware |
|
|
* |
|
Bio-Medical Applications of Jersey City, Inc. |
|
Delaware |
|
|
* |
|
Bio-Medical Applications of Kansas, Inc. |
|
Delaware |
|
|
* |
|
Bio-Medical Applications of Kentucky, Inc. |
|
Delaware |
|
|
* |
|
Bio-Medical Applications of Las Americas, Inc. |
|
Delaware |
|
|
* |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Original Transferring Affiliates |
|
State of |
|
|
|
(before December 21, 2001) |
|
Incorporation |
|
FEIN |
|
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 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 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 Pine Brook, Inc. |
|
Delaware |
|
|
* |
|
Bio-Medical Applications of Ponce, 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 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 Trenton, 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 |
|
|
* |
|
FMC Dialysis Services — Oregon, LLC (f/k/a Willamette Valley Kidney Center, LLC) |
|
Oregon |
|
|
* |
|
FMC Dialysis Services Colorado, LLC (f/k/a Bio-Medical Applications of Colorado, Inc.) |
|
Delaware |
|
|
* |
|
Fresenius USA, Inc. |
|
Massachusetts |
|
|
* |
|
Home Intensive Care, Inc. |
|
Delaware |
|
|
* |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Original Transferring Affiliates |
|
State of |
|
|
|
(before December 21, 2001) |
|
Incorporation |
|
FEIN |
|
National Medical Care, Inc |
|
Delaware |
|
|
* |
|
Neomedica, Inc |
|
Delaware |
|
|
* |
|
San Diego Dialysis Services, Inc. |
|
Delaware |
|
|
* |
|
Spectra East, Inc. |
|
Delaware |
|
|
* |
|
Spectra Laboratories, Inc. |
|
Nevada |
|
|
* |
|
|
|
|
|
|
|
|
New Transferring Affiliates |
|
State of |
|
|
|
(added on or after December 21, 2001) |
|
Incorporation |
|
FEIN |
|
Bio-Medical Applications Home Dialysis Services, Inc. |
|
Delaware |
|
|
* |
|
Bio-Medical Applications of Blue Springs, Inc |
|
Delaware |
|
|
* |
|
Bio-Medical Applications of Clinton, Inc. |
|
Delaware |
|
|
* |
|
Bio-Medical Applications of Dover, Inc. |
|
Delaware |
|
|
* |
|
Bio-Medical Applications of Essex, Inc. |
|
Delaware |
|
|
* |
|
Bio-Medical Applications of Fayetteville, Inc. |
|
Delaware |
|
|
* |
|
Bio-Medical Applications of Hoboken, Inc. |
|
Delaware |
|
|
* |
|
Bio-Medical Applications of Manchester, Inc. |
|
Delaware |
|
|
* |
|
Bio-Medical Applications of Nevada, Inc |
|
Nevada |
|
|
* |
|
Bio-Medical Applications of New York, Inc. |
|
Delaware |
|
|
* |
|
Bio-Medical Applications of San Antonio, Inc. |
|
Delaware |
|
|
* |
|
Con-Med Supply Company, Inc. |
|
Illinois |
|
|
* |
|
Conejo Valley Dialysis, Inc. |
|
California |
|
|
* |
|
Dialysis America Alabama, LLC |
|
Delaware |
|
|
* |
|
Dialysis America Georgia, LLC |
|
Delaware |
|
|
* |
|
Dialysis Associates of Northern Now Jersey, LLC |
|
New Jersey |
|
|
* |
|
Dialysis Services, Inc. |
|
Texas |
|
|
* |
|
Dialysis Services of Cincinnati, Inc. |
|
Ohio |
|
|
* |
|
Dialysis Specialists of Topeka, Inc. |
|
Kansas |
|
|
* |
|
Dialysis Specialists of Tulsa, Inc. |
|
Oklahoma |
|
|
* |
|
DuPage Dialysis Ltd. |
|
Illinois |
|
|
* |
|
Everest Healthcare Holdings, Inc. |
|
Delaware |
|
|
* |
|
Everest Healthcare Indiana, Inc. |
|
Indiana |
|
|
* |
|
Everest Healthcare Ohio, Inc. |
|
Ohio |
|
|
* |
|
Everest Healthcare Rhode Island, Inc. |
|
Delaware |
|
|
* |
|
Everest Healthcare Texas Holding Corp |
|
Delaware |
|
|
* |
|
Everest Healthcare Texas, LP |
|
Delaware |
|
|
* |
|
Everest Management, Inc. |
|
Delaware |
|
|
* |
|
Fresenius Management Services, Inc. |
|
Delaware |
|
|
* |
|
Fresenius USA Home Dialysis, Inc. |
|
Delaware |
|
|
* |
|
Fresenius USA Marketing, Inc. |
|
Delaware |
|
|
* |
|
Fresenius USA of Puerto Rico, Inc. |
|
Delaware |
|
|
* |
|
Fresenius USA Sales, Inc. |
|
Massachusetts |
|
|
* |
|
Gulf Region Mobile Dialysis, Inc. |
|
Delaware |
|
|
* |
|
Haemo-Stat, Inc. |
|
California |
|
|
* |
|
Home Dialysis of America, Inc. |
|
Arizona |
|
|
* |
|
Home Dialysis of Muhlenberg County, Inc. |
|
Kentucky |
|
|
* |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Original Transferring Affiliates |
|
State of |
|
|
|
(before December 21, 2001) |
|
Incorporation |
|
FEIN |
|
Mercy Dialysis Center, Inc. |
|
Wisconsin |
|
|
* |
|
NMC A, LLC |
|
Delaware |
|
|
* |
|
North Xxxxxxx Dialysis Center, Inc. |
|
Delaware |
|
|
* |
|
Northern New Jersey Dialysis, LLC |
|
Delaware |
|
|
* |
|
Prime Medical, Inc. |
|
Massachusetts |
|
|
* |
|
Qualicenters, Inc. |
|
Colorado |
|
|
* |
|
Renal Scientific Services, Inc. |
|
Delaware |
|
|
* |
|
Santa Xxxxxxx Community Dialysis Center, Inc. |
|
California |
|
|
* |
|
Xxxxxxx Dialysis Center, LLC |
|
Delaware |
|
|
* |
|
WSKC Dialysis Services, Inc. |
|
Illinois |
|
|
* |
|
Schedule II
1. |
|
Amendment Agreement. |
|
2. |
|
Third Amended and Restated Transfer and Administration Agreement. |
|
3. |
|
Amended and Restated Transfer Certificate, reflecting transfer of rights of Agent to WestLB. |
|
4. |
|
Amendment to Concentration Account with JPMorgan Chase Bank, reflecting transfer of rights of
Agent to WestLB. |
|
5. |
|
Amendment No. 7 to Parent Agreement, relating to changes in financial covenants and
transfer of rights of Agent to WestLB. |
|
6. |
|
Amendment No. 4 to the Receivables Purchase Agreement, reflecting transfer of rights of Agent
to WestLB. |
|
7. |
|
Amendment No. 3 to Transferring Affiliate Letter, reflecting transfer of rights of Agent to
WestLB. |
|
8. |
|
Reaffirmation opinion of Xxxxxxx X. Xxxx. |
|
9. |
|
Reaffirmation opinion of Arent Fox Xxxxxxx Xxxxxxx & Xxxx. |
|
10. |
|
Certificate of the Secretary of the Transferor. |
|
11. |
|
Certificate of the Secretary of the Collection Agent. |
|
12. |
|
Good Standing Certificates for the Transferor from the Secretary of the Commonwealth of
Massachusetts and the Secretary of State of Delaware. |
|
13. |
|
Good Standing Certificates for the Collection Agent from the Secretary of the Commonwealth of
Massachusetts and the Secretary of State of Delaware. |
|
14. |
|
Investor Fee Letter. |
|
15. |
|
Agent Fee Letter. |
|
16. |
|
UCC financing statement assignments reflecting transfer of rights of Agent to WestLB. |
|
17. |
|
Certificate of the Secretary of NMC A, LLC. |
|
18. |
|
Good Standing Certificate for NMC A, LLC from the Secretary of State of Delaware. |
|
19. |
|
UCC-1 Financing Statement for NMC A, LLC. |
20. |
|
Amendment to UCC-1 for Bio-Medical Applications of Louisiana, Inc. (change of name to
Bio-Medical Applications of Louisiana, LLC). |
|
21. |
|
Up-Front Fee Letter (WestLB). |
|
22. |
|
Up-Front Fee Letter (Scotiabank). |
|
23. |
|
Up-Front Fee Letter (SocGen). |
|
24. |
|
Up-Front Fee Letter (BayernLB). |
2
EXHIBIT A
The following is an excerpt from the Form 10Q filing of Fresenius Medical Care Holdings, Inc. (the
“Company”) with the Securities and Exchange Commission for the period ending June 30, 2003:
LEGAL PROCEEDINGS
COMMERCIAL LITIGATION
The Company was formed as a result of a series of transactions pursuant to the Agreement and
Plan of Reorganization (the “Merger”) dated as of February 4, 1996 by and between X.X. Xxxxx & Co.
and Xxxxxxxxx AG. At the time of the Merger, a X.X. Xxxxx & Co. subsidiary known as X.X. Xxxxx &
Co.-Xxxx. had, and continues to have, significant potential liabilities arising out of
product-liability related litigation, pre-Merger tax claims and other claims unrelated to NMC,
which was Xxxxx’s dialysis business prior to the Merger. In connection with the Xxxxxx, X.X. Xxxxx
& Co.-Xxxx. agreed to indemnify the Company, and NMC against all liabilities of X.X. Xxxxx & Co.,
whether relating to events occurring before or after the Merger, other than liabilities arising
from or relating to NMC’s operations. X.X. Xxxxx & Co. and certain of its subsidiaries filed for
reorganization under Chapter 11 of the U.S. Bankruptcy Code (the “Grace Chapter 11 Proceedings”) on
April 2, 2001.
Pre-Merger tax claims or tax claims that would arise if events were to violate the tax-free
nature of the Merger, could ultimately be the obligation of the Company. In particular X. X. Xxxxx
& Co. has disclosed in its filings with the Securities and Exchange Commission that: its tax
returns for the l993 to 1996 tax years are under audit by the Internal Revenue Service (the
“Service”); X. X. Xxxxx & Co. has received the Service’s examination report on tax periods 1993 to
1996; that during those years Grace deducted approximately $122.1 million in interest attributable
to corporate owned life insurance (“COLI”) policy loans; that X.X. Xxxxx & Co. has paid $21.2
million of tax and interest related to COLI deductions taken in tax years prior to 1993; that a
U.S. District Court ruling has denied interest deductions of a taxpayer in a similar situation and
that X.X. Xxxxx Co. is seeking a settlement of the Service’s claims. Subject to certain
representations made by X.X. Xxxxx & Co., the Company and Fresenius AG, X.X. Xxxxx & Co. and
certain of its affiliates agreed to indemnify the Company against this and other pre-Merger and
Xxxxxx related tax liabilities.
Prior to and after the commencement of the Grace Chapter 11 Proceedings, class action
complaints were filed against X.X. Xxxxx & Co. and the Company by plaintiffs claiming to be
creditors of X.X. Xxxxx & Co.- Xxxx., and by the asbestos creditors’ committees on behalf of the
X.X. Xxxxx & Co. bankruptcy estate in the Grace Chapter 11 Proceedings, alleging among other
things that the Merger was a fraudulent conveyance, violated the uniform fraudulent transfer act
and constituted a conspiracy. All such cases have been stayed and transferred to or are pending
before the U.S. District Court as part of the Grace Chapter 11 Proceedings.
On February 6, 2003, the Company reached a definitive agreement with the asbestos creditors’
committees on behalf of the X.X. Xxxxx and Co. bankruptcy estate in the matters pending in the
Grace Chapter 11 Proceedings for the settlement of all fraudulent conveyance claims against it and
other claims related to the Company that arise out of the bankruptcy of X.X. Xxxxx & Co.
Subsequently, the settlement agreement was amended and X.X. Xxxxx was added as a settling party.
Under the terms of the settlement agreement as amended (the “Settlement Agreement”), fraudulent
conveyance and other claims raised on behalf of asbestos claimants will be dismissed with
prejudice and the Company will receive protection against existing and potential future X.X. Xxxxx
& Co. related claims, including fraudulent conveyance and asbestos claims, and indemnification
against income tax claims related to the non-NMC members of the X.X. Xxxxx & Co. consolidated tax
group upon confirmation of a X.X. Xxxxx & Co. bankruptcy reorganization plan that contains such
provisions. Under the Settlement Agreement, the Company will pay a total of $115 million to the
X.X. Xxxxx & Co. bankruptcy estate, or as otherwise directed by the Court, upon plan confirmation.
No admission of liability has been or will be made. The Settlement Agreement has been approved by
the U.S. District Court. Subsequent to the Merger, X.X. Xxxxx & Co. was involved in a multi-step
transaction involving Sealed Air Corporation (formerly known as Grace Holding, Inc.). The Company
is engaged in litigation with Sealed Air Corporation (“Sealed Air”) to confirm the Company’s
entitlement to indemnification from Sealed Air for all losses and expenses incurred by the Company
relating to pre-Merger tax liabilities and Merger-related claims. Under the Settlement Agreement,
upon confirmation of a plan that satisfies the conditions to the Company’s payment obligation,
this litigation will be dismissed with prejudice.
In April 2003, the Company, NMC, and the certain NMC subsidiaries agreed to settle all
litigation filed by a group of insurance companies concerning allegations of inappropriate billing
practices and misrepresentations and the Company’s counterclaims against the plaintiffs in these
matters based on inappropriate claim denials and delays in claim payments. The costs of the
settlement will be charged against previously established accruals. See “Accrued Special Charge for
Legal Matters” below. Other private payors have contacted the Company regarding similar claims and
may file their own lawsuit seeking reimbursement and other damages. Although the ultimate outcome
on the Company of any such proceedings cannot be predicted at this time, an adverse result could
have a material adverse effect on the Company’s business, financial condition and results of
operations.
On April 4, 2003, the Company filed a suit in the United States District Court for the
Northern District of California, Fresenius USA, Inc., et al., x. Xxxxxx International Inc., et
al., Case No. C 03-1431, seeking a declaratory judgment that the Company does not infringe on
patents held by Xxxxxx International, Inc. and its subsidiaries and affiliates (“Baxter”), that
the patents are invalid, and that Baxter is without right or authority to threaten or maintain
suit against the Company for alleged infringement of Xxxxxx’x patents. In general, the alleged
patents concern touch screens, conductivity alarms, power failure data storages, and balance
xxxxxxxx for hemodialysis machines. Baxter has filed
counterclaims against the Company seeking monetary damages and injunctive relief, and alleging
that the Company willfully infringes on the Xxxxxx’x patents. The Company believes its claims are
meritorious, although the ultimate outcome of any such proceedings cannot be predicted at this
time and an adverse result could have a material adverse effect on the Company’s business,
financial condition, and results of operations.
OTHER LITIGATION AND POTENTIAL EXPOSURES
From time to time, the Company is a party to or may be threatened with other litigation
arising in the ordinary course of its business. Management regularly analyzes current information
including, as applicable, the Company’s defenses and insurance coverage and, as necessary,
provides accruals for probable liabilities for the eventual disposition of these matters.
The Company, like other health care providers, conducts its operations under intense
government regulation and scrutiny. The Company must comply with regulations which relate to or
govern the safety and efficacy of medical products and supplies, the operation of manufacturing
facilities, laboratories and dialysis clinics, and environmental and occupational health and
safety. The Company must also comply with the Anti-Kickback Statute, the False Claims Act, the
Xxxxx Statute, and other federal and state fraud and abuse laws. Applicable laws or regulations may
be amended, or enforcement agencies or courts may make interpretations that differ from the
Company’s or the manner in which the Company conduct its business. Enforcement has become a high
priority for the federal government and some states. In addition, the provisions of the False
Claims Act authorizing payment of a portion of any recovery to the party bringing the suit
encourage private plaintiffs to commence “whistle blower” actions. By virtue of this regulatory
environment, as well as our corporate integrity agreement with the government, the Company expects
that its business activities and practices will continue to be subject to extensive review by
regulatory authorities and private parties, and expects continuing inquiries, claims and litigation
relating to its compliance with applicable laws and regulations. The Company may not always be
aware that an inquiry or action has begun, particularly in the case of “whistle blower” actions,
which are initially filed under court seal.
The Company operates many facilities throughout the U.S. In such a decentralized system, it
is often difficult to maintain the desired level of oversight and control over the thousands of
individuals employed by many affiliated companies. The Company relies upon its management
structure, regulatory and legal resources, and the effective operation of its compliance program
to direct, manage and monitor the activities of these employees. On occasion, the Company may
identify instances where employees, deliberately or inadvertently, have submitted inadequate or
false xxxxxxxx. The actions of such persons may subject the Company and its subsidiaries to
liability under the Anti-Kickback Statute, the Xxxxx Statute and the False Claims Act, among
other laws.
Physicians, hospitals and other participants in the health care industry are also subject
to a large number of lawsuits alleging professional negligence, malpractice,
product liability, worker’s compensation or related claims, many of which involve large claims and
significant defense costs. The Company has been subject to these suits due to the nature of its
business and the Company expects that those types of lawsuits may continue. Although the Company
maintains insurance at a level which it believes to be prudent, the Company cannot assure that the
coverage limits will be adequate or that insurance will cover all asserted claims. A successful
claim against the Company or any of its subsidiaries in excess of insurance coverage could have a
material adverse effect upon the Company and the results of its operations. Any claims, regardless
of their merit or eventual outcome, also may have a material adverse effect on the Company’s
reputation and business.
The Company has also had claims asserted against it and has had lawsuits filed against it
relating to businesses that it has acquired or divested. These claims and suits relate both to
operation of the businesses and to the acquisition and divestiture transactions. The Company has
asserted its own claims, and claims for indemnification. Although the ultimate outcome on the
Company cannot be predicted at this time, an adverse result could have a material adverse effect
upon the Company’s business, financial condition, and results of operations.
ACCRUED SPECIAL CHARGE FOR LEGAL MATTERS
At December 31, 2001, the Company recorded a pre-tax special charge of $258 million to
reflect anticipated expenses associated with the continued defense and resolution of pre-Merger
tax claims, Merger-related claims, and commercial insurer claims. The costs associated with the
Settlement Agreement and settlement with insurers are charged against this accrual. While the
Company believes that its remaining accruals reasonably estimate the Company’s currently
anticipated costs related to the continued defense and resolution of the remaining matters, no
assurances can be given that the actual costs incurred by the Company will not exceed the amount
of these accruals.
September 27, 1999
Enterprise Funding Corporation
c/o Bank of America, N.A.
Bank of America, N.A. Corporate Center
Charlotte, NC 28255
Compass US Acquisition, LLC
c/o Westdeutsche Landesbank
Girozentrale, New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Bank of America, N.A., as Administrative Agent and as Agent
Bank of America Corporate Center
Charlotte, North Carolina 28255
Westdeutsche Landesbank
Girozentrale, New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Each of the “Bank Investors”
(as defined in the Amended and Restated Transfer and
Administration Agreement described in this letter)
Arent Fox Xxxxxxx Xxxxxxx & Xxxx
0000 Xxxxxxxxxxx Xxxxxx, X.X.
Washington, D.C. 20036-5339
|
|
|
RE: |
|
Fresenius Medical Care Holdings, Inc., National Medical
Care, Inc. and NMC Funding Corporation — Amended and Restated Transfer and
Administration Agreement |
Ladies and Gentlemen
I have acted as counsel to Fresenius Medical Care Holdings, Inc., a New
York corporation (“FMCH”), and National Medical Care, Inc., a Delaware
corporation (“NMC”), in connection with (a) the Receivables Purchase Agreement
dated as of
Fresenius Medical Care North America
Corporate Headquarters: Two Ledgemont Center 00 Xxxxxx Xxxxxx Xxxxxxxxx, XX 00000-0000 (000) 000-0000
September 27, 1999
Page 2
August 28, 1997 between NMC, as seller, and NMC Funding Corporation (the “Transferor”), as
purchaser (the “Receivables Purchase Agreement”), (b) the Amended and Restated Transfer and
Administration Agreement (the “TAA”) dated as of the date hereof among the Transferor, NMC as
initial Collection Agent, Enterprise Funding Corporation (“Enterprise”), Compass US Acquisition,
LLC (“Compass”), the Bank Investors listed in such agreement, Westdeutsche Landesbank,
Girozentrale, New York Branch and Bank of America, N.A., as Administrative Agent and as Agent for
the benefit of Enterprise, Compass and the Bank Investors and (c) the Parent Agreement dated as of
August 28, 1997 among FMCH and Fresenius Medical Care AG, a corporation organized and existing
under the laws of the Federal Republic of Germany (“FMC AG”) in favor of the Transferor, Enterprise
and the Agent, as amended by Amendment No. 1 to Parent Agreement dated as of the date hereof by
FMCH and FMC AG (as amended, the “Parent Agreement”). I have also acted as counsel to (x) each of
the corporations listed on Schedule I to this letter (each, a “Transferring Affiliate”, and
collectively, the “Transferring Affiliates” and together with FMCH, NMC and the Transferor
collectively, the “Parent Group Members”) and (y) for the limited purpose of rendering the opinion
set forth in Section 9(g) hereof, FMC AG. The Receivables Purchase Agreement, the TAA, and the
Parent Agreement together with each of the other instruments and agreements listed on Schedule
II hereto are collectively referred to herein as the “Transaction Documents.” I am an Associate
General Counsel, Vice President and Assistant Secretary of FMCH. Capitalized terms not defined
herein have the meanings assigned to them in the Transaction Documents, except as otherwise
indicated herein.
I have examined and relied upon such corporate records and certificates of officers of the Parent
Group Members, certificates of public officials and the representations and warranties of the
Parent Group Members in the relevant Transaction Documents, and have made such examination of law
as I deemed relevant to the opinions set forth herein. Based upon the above, and subject to the
qualifications set forth below, it is my opinion that:
1. Organization, Existence and Good Standing.
(a) FMCH is a corporation duly formed, validly existing and in good standing under the laws of
the State of New York, and is duly qualified and in good standing in each other state in which the
nature of the business it conducts or the assets it owns or leases requires such qualification and
in which the failure to be so qualified would have a material adverse effect on its business or
operations.
(b) NMC is a corporation duly formed, validly existing and in good standing under the laws of
the State of Delaware, and is duly qualified and in good standing in each other state in which the
nature of the business it conducts or the assets it owns or leases requires such qualification and
in which the failure to be so qualified would have a material adverse effect on its business or
operations.
September 27, 1999
Page 3
(c) Each Transferring Affiliate is a corporation duly formed, validly existing and
in good standing under the laws of the state of its incorporation, and is duly qualified and
in good standing in each other state in which the nature of the business it conducts or the
assets it owns or leases requires such qualification and in which the failure to be in good
standing or so qualified would have a material adverse effect on the business or operations
of such Transferring Affiliate.
2. Power and Authority.
(a) FMCH has the requisite corporate power and authority to execute and deliver, and to
perform its obligations under, each of the Transaction Documents to which it is a party.
(b) NMC has the requisite corporate power and authority to execute and deliver, and to
perform its obligations under, each of the Transaction Documents to which it is a party.
(c) Each Transferring Affiliate has the requisite corporate power and authority
to execute and deliver, and to perform its obligations under, each of the Transaction
Documents to which it is a party.
3. Due Authorization.
(a) The execution, delivery and performance of the Parent Agreement by FMCH have been duly
authorized by all necessary corporate action of FMCH.
(b) The execution, delivery and performance of the Transaction Documents by NMC have
been duly authorized by all necessary corporate action of NMC.
(c) The execution, delivery and performance of the Transaction Documents by each
Transferring Affiliate have been duly authorized by all necessary corporate action of each
Transferring Affiliate.
4. No Violation of Organic Documents.
(a) FMCH’s execution and delivery of, and its performance of its obligations
under, the Parent Agreement will not violate its charter or
by-laws.
(b) NMC’s execution and delivery of, and its performance of its obligations under, the
Transaction Documents will not violate its charter or by-laws.
(c) Each Transferring Affiliate’s execution and delivery of, and its performance of its
obligations under, the Transaction Documents will not violate its charter or by-laws.
September 27, 1999
Page 4
5. Due Execution and Delivery; Validity; Xxxxxxx Effect and General
Enforceability
(a) FMCH has duly executed and delivered the Parent Agreement.
(b) NMC has duly executed and delivered each of the Transaction Documents to which
it is a party.
(c) Each Transferring Affiliate has duly executed and delivered each of the Transaction
Documents to which it is a party.
(d) The Parent Agreement constitutes the legal and valid obligation of, and is binding on and
enforceable against, FMCH in accordance with its terms.
(e) In any action or proceeding arising out of or relating to any Transaction Document in any
court of The Commonwealth of Massachusetts or in any federal court sitting in The Commonwealth of
Massachusetts, such court should recognize and give effect to the provisions thereof wherein the
parties agree that such Transaction Document shall be governed by, and construed in accordance
with, the laws of the State of New York. However, in the event that any such court shall determine
that any of the Transaction Documents are governed by the laws of The Commonwealth of
Massachusetts, each of the Transaction Documents constitutes the legal and valid obligation of, and
is binding on and enforceable against, each of the Parent Group Members parties thereto.
6. General Qualifications. The opinions set forth in Section 5 are subject to the following
qualifications:
(a) The enforceability of the Transaction Documents may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws or other equitable principles
relating to or affecting the rights of creditors or other obligees generally.
(b) The enforceability of the Transaction Documents may be limited by applicable principles of
equity, whether such principles are applied by a court of equity or a court of law, and we express
no opinion on whether a court would grant specific performance, injunctive relief or any other
equitable remedy.
(c) The provisions regarding the remedies available to the Agent on default as set forth in
the Transaction Documents may be subject to certain procedural requirements that are not expressly
staled in the Transaction Documents, but neither the existence of these procedural requirements nor
the failure to specify them in the Transaction Documents make the remedies unenforceable.
September 27, 1999
Page 5
(d) A court could refuse to permit the Agent to foreclose any security interest in favor of
the Agent or enforce the Agent’s remedies under the Transaction Documents by reason of (i) a
waiver by the Agent, (ii) unconscionable conduct by the Agent, (iii) the exercise of remedies by
the Agent without providing adequate notice to FMCH, NMC or any of the Transferring Affiliates, as
applicable of the default and a reasonable opportunity to cure the default, (iv) the court’s
determination that FMCH, NMC or any of the Transferring Affiliates, as applicable are entitled to
an opportunity to be heard by the court before the Agent is entitled to exercise any remedies, (v)
the court’s determination that a remedy is a penalty or is unconscionable, (vi) the court’s
determination that the Agent is seeking to exercise remedies with respect to a breach that is
immaterial or that does not adversely affect the Agent or the Agent’s security, (vii) defenses
arising from the Agent’s failure to act in accordance with the terms and conditions of the
Transaction Documents, (viii) defenses arising as a consequence of the passage of time (e.g.,
laches or statutes of limitation), (ix) defenses arising as a result of the Agent’s failure to act
in a commercially reasonable manner or in good faith or (x) public policy considerations.
(e) I express no opinion with respect to any of the following provisions if they are contained
in any of the Transaction Documents: (i) self-help, non-judicial remedies or provisions purporting
to grant a right of possession without resort to judicial action to the extent inconsistent with
the Uniform Commercial Code or other applicable law; (ii) any provisions that entitle the Agent, as
a matter of right, to the appointment of a receiver; (iii) any provisions imposing penalties,
forfeitures, increased interest/discount rates and/or late payment charges upon delinquency in payment or the
occurrence of a default; (iv) any provisions under which FMCH, NMC or any of the
Transferring Affiliates, as applicable, waive any of its legal or equitable rights except to the
extent the waived rights are expressly waivable pursuant to a statute or constitution provision;
(v) any provisions entitling the Agent to obtain reimbursement for attorneys’ fees and other costs
incurred by the Agent; (vi) any provision permitting the Agent to accelerate the Obligations or
exercise any remedies in the event of a transfer or encumbrancing of an immaterial portion of any
collateral or immaterial changes in the beneficial ownership of FMCH, NMC or any of the
Transferring Affiliates, as applicable; (vii) any provision exonerating or indemnifying the Agent
(or any agent or employee of the Agent or any party acting on behalf of the Agent) from the
consequences of its own acts or omissions; (viii) any severability provision; (ix) provisions
relating to setoff rights; (x) any provision granting a power of attorney or similar right; (xi)
any provision to the effect that rights or remedies are not exclusive, that every right or remedy
is cumulative and may be exercised in addition to or with any other right or remedy or that the
election of a particular remedy does not preclude recourse to one or more other remedies; (xii) any
provision pursuant to which a party has granted to another party any power to execute documents,
settle claims or appear in judicial proceedings on behalf of such party or to take any other action
on behalf of such party; (xiii) any provision which purports to affect jurisdiction or venue of any
specified court or which purports to establish evidentiary standards, or which waives trial by
jury; (xiv) choice of law provision (except as discussed in paragraph 5 above);
September 27, 1999
Page 6
(xv) any provision by which any party agrees to take action if that party’s ability to take the
action in question is subject to conditions another party to the Transaction Documents controls; or
(xvi) any provision that purports to grant the Agent relief from any provisions of the Bankruptcy
Code.
7. No Violations of Other Contracts.
(a) FMCH’s execution, delivery and performance of the Parent Agreement and the Reaffirmation
Agreement will not breach any Other Contract.
(b) NMC’s execution, delivery and performance of the Transaction Documents to which it
is a party will not breach any Other Contract.
(c) Each Transferring Affiliate’s execution, delivery and performance of the Transaction
Documents to which it is a party will not breach any Other Contract.
(d) For purposes of this section, the term Other Contract means an indenture, mortgage, deed
of trust, loan agreement, or other material agreement or instrument to which, to the best of my
knowledge, FMCH, NMC or any Transferring Affiliate is a party.
8. No Violations of Applicable Laws.
(a) To the best of my knowledge, FMCH’s execution, delivery and performance of the
parent Agreement will not violate any Applicable Law.
(b) To the best of my knowledge, NMC’s execution, delivery and performance of the Transaction
Documents to which it is a party will not violate any Applicable Law.
(c) To the best of my knowledge, the Transferor’s and each Transferring Affiliate’s execution,
delivery and performance of the Transaction Documents to which it is a party will not violate any
Applicable Law.
(d) For purposes of this paragraph, the term Applicable Law means, subject to the following
sentences, any provision of federal or Massachusetts law or regulation or Delaware General
Corporation Law that is generally applicable to organizations such as FMCH, NMC or any Transferring
Affiliate or that relates to transactions of this type. The term Applicable Law excludes federal
and state securities and blue-sky laws, tax laws, healthcare laws and related rules and
regulations.
9. No Violations of Court Decrees or Orders and other Matters.
(a) FMCH’s execution, delivery and performance of the Parent Agreement will not
violate any Court Decree or Order.
September 27, 1999
Page 7
(b) NMC’s execution, delivery and performance of the Transaction Documents to which it
is a party will not violate any Court Decree or Order.
(c) Each Transferring Affiliate’s execution, delivery and performance of the Transaction
Documents to which it is a party will not violate any Court Decree or Order.
(d) For purposes of this paragraph, the term Court Decree or Order means a decree, order or
other official action of any court or other governmental body that is, to the best of my knowledge,
specifically applicable to FMCH, NMC or any Transferring Affiliate as a named party.
(e) The execution, delivery and performance by each Parent Group Member of the Transaction
Documents to which it is named as a party (a) to the best of my knowledge, does not result in or
require the creation of any lien, security interest or other charge or encumbrance upon or with
respect to any of such Person’s properties (except as may be specifically contemplated in the
Transaction Documents) and (b) does not require compliance with any bulk sales act or similar law.
(f) To the best of my knowledge, no authorization, approval, consent or other action by, and
no notice to or filing with, any governmental authority or regulatory body is required for the due
execution, delivery and performance by any Parent Group Member of any Transaction Document to which
it is named as a party.
(g) To the best of my knowledge, there are no actions, suits, orders, decrees, investigations, or other proceedings pending or threatened at law, in equity, in
arbitration or before any governmental agency, commission or official against or affecting any
Parent Group Member or FMC AG which challenges or affects the legality, validity or enforceability
of any Transaction Document or, except as otherwise disclosed in Exhibit A attached hereto,
which would otherwise be reasonably likely to have a Material Adverse Effect
(h) To the best of my knowledge and belief there are no governmental authorization,
approvals, orders, licenses, certificates, franchises or permits of and from any governmental
regulatory officials and bodies, that are necessary in order for any Parent Group Member to own its
respective properties and to conduct its respective businesses as now being conducted, which have
not been obtained, except where the failure to have so obtained any such authorization, approvals,
orders, licenses, certificates franchises or permits, individually or in the aggregate, would not
have a Material Adverse Effect.
10. Investment Company Act. Neither FMCH, NMC, the Transferor nor any Transferring
Affiliate is or is controlled by an “investment company” within the
September 27, 1999
Page 8
meaning of the Investment Company Act of 1940, as amended, and therefore none of them is
subject to registration as an “investment company.”
11. Public Utility Holding Company Act. Neither FMCH, NMC, the Transferor nor any
Transferring Affiliate is a “holding company” within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
The foregoing opinion is subject in its entirety to the following qualifications:
The opinions expressed in this letter are solely for the use of the Agent, Enterprise,
Compass, the Administrative Agents and the Bank Investors, and their permitted assignees and
participants, and their legal counsel. These opinions may not be relied on by any other persons,
may not be quoted in whole or in part, and may not be filed with any governmental agency, in each
case without my express prior written approval; provided that these opinions may be disclosed to,
and relied upon by, any rating agency then rating obligations of Enterprise, Compass, the Related
CP Issuer, any Credit Support Provider, any Liquidity Provider and Arent, Fox, Kintner, Xxxxxxx &
Xxxx.
The opinions expressed in this letter are rendered as of the date hereof and I express no
opinion as to circumstances or events that may occur in the future. The opinions expressed in
this letter are limited to the matters set forth in this letter, and no other opinions should be
inferred beyond the matters expressly stated.
This opinion is based and relies upon the current status of the laws of The Commonwealth
of Massachusetts and the United States, and the General Corporation
Law of the State of Delaware and in all respects this opinion is subject to and may be limited
by amendments or other changes in such laws, rules and regulations, and any future laws, rules
and regulations, as well as by developing case law.
I have relied without investigation on certificates and other communications from public
officials as to matters of fact.
Very truly yours,
Xxxxxxx X. Xxxx
Vice President, Assistant Secretary and
Associate General Counsel
September _, 1999
Page 9
SCHEDULE I
(LIST OF TRANSFERRING AFFILIATES)
Exhibit
[ ]
EXHIBIT A
LIST OF TRANSFERRING AFFILIATES
Transferring Affiliates
|
|
|
Chief Executive Office for each
|
|
Two Ledgemont Center |
Transferring Affiliation:
|
|
00 Xxxxxx Xxxxxx |
|
|
Lexington, Massachusetts 02420-9192 |
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Dialysis Services |
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State of Incorporation |
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Bio-Medical Applications Management Company, Inc
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Delaware |
|
|
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Bio-Medical Applications of Aguadilla,
Inc.
|
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Delaware |
|
|
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Bio-Medical Applications of Alabama, Inc.
|
|
Delaware |
|
|
|
Bio-Medical Applications of Alameda
County, Inc.
|
|
Delaware |
|
|
|
Bio-Medical Applications of Anacostia,
Inc.
|
|
Delaware |
|
|
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Bio-Medical Applications of Arecibo, Inc.
|
|
Delaware |
|
|
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Bio-Medical Applications of Arizona, Inc.
|
|
Delaware |
|
|
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Bio-Medical Applications of Arkansas,
Inc.
|
|
Delaware |
|
|
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Bio-Medical Applications of Bayamon, Inc.
|
|
Delaware |
Page 1
Exhibit [ ]
|
|
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Dialysis Services |
|
State of Incorporation |
|
|
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Bio-Medical
Applications of Blue Springs,
Inc
|
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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
Colorado, 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
East Orange, Inc
|
|
Delaware |
|
|
|
Bio-Medical Applications of
Essex, Inc.
|
|
Delaware |
Page 2
Exhibit [ ]
|
|
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Dialysis Services |
|
State of Incorporation |
|
|
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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
Hillside, Inc.
|
|
Delaware |
|
|
|
Bio-Medical Applications of Hoboken,
Inc.
|
|
Delaware |
|
|
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Bio-Medical Applications Home Dialysis
Services, 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 Irvington,
Inc.
|
|
Delaware |
|
|
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Page 3
Exhibit [ ]
|
|
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Dialysis Services |
|
State of Incorporation |
|
|
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Bio-Medical Applications of Jersey
City, 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 Angeles,
Inc.
|
|
Delaware |
|
|
|
Bio-Medical Applications of Los Gatos, Inc.
|
|
Delaware |
|
|
|
Bio-Medical Applications of Louisiana, Inc.
|
|
Delaware |
|
|
|
Bio-Medical Applications of Maine, Inc.
|
|
Delaware |
|
|
|
Bio-Medical Applications of Manchester,
Inc.
|
|
Delaware |
|
|
|
Bio-Medical Applications of Maryland, Inc.
|
|
Delaware |
|
|
|
Bio-Medical Applications of Massachusetts,
Inc.
|
|
Delaware |
|
|
|
Bio-Medical Applications of Mayaguez, Inc.
|
|
Delaware |
|
|
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Bio-Medical Applications of Michigan, Inc.
|
|
Delaware |
|
|
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Bio-Medical Applications of Minnesota, Inc.
|
|
Delaware |
Page 4
Exhibit [ ]
|
|
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Dialysis Services |
|
State of Incorporation |
|
|
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Bio-Medical Applications of Mission Hills, Inc.
|
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Delaware |
|
|
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Bio-Medical Applications of Mississippi, Inc.
|
|
Delaware |
|
|
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Bio-Medical Applications of Missouri, Inc.
|
|
Delaware |
|
|
|
Bio-Medical Applications of MLK, Inc.
|
|
Delaware |
|
|
|
Bio-Medical Applications of Nevada, Inc.
|
|
Delaware |
|
|
|
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 New York, Inc.
|
|
Delaware |
|
|
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Bio-Medical Applications of North Carolina, Inc.
|
|
Delaware |
|
|
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Bio-Medical Applications of Northeast, D.C., Inc.
|
|
Delaware |
|
|
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Bio-Medical Applications of Oakland, Inc.
|
|
Delaware |
|
|
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Bio-Medical Applications of Ohio, Inc.
|
|
Delaware |
|
|
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Bio-Medical Applications of Oklahoma, Inc.
|
|
Delaware |
|
|
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Bio-Medical Applications of Pennsylvania, Inc.
|
|
Delaware |
Page 5
Exhibit [ ]
|
|
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Dialysis Services |
|
State of Incorporation |
|
|
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Bio-Medical Applications
of Pine Brook, Inc.
|
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Delaware |
|
|
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Bio-Medical Applications of
Ponce, Inc.
|
|
Delaware |
|
|
|
Bio-Medical Applications of Port
Orange, Inc.
|
|
Delaware |
|
|
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Bio-Medical Applications of
Puerto Rico, Inc.
|
|
Delaware |
|
|
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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 |
|
|
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Bio-Medical Applications of San
Xxxx, Inc.
|
|
Delaware |
|
|
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Bio-Medical Applications of
South Carolina, Inc.
|
|
Delaware |
|
|
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Bio-Medical Applications of
South Queens, Inc.
|
|
Delaware |
|
|
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Bio-Medical Applications of
Southeast Washington, Inc.
|
|
Delaware |
|
|
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.Bio-Medical Applications of
Tennessee, Inc.
|
|
Delaware |
|
|
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Bio-Medical Applications of
Texas, Inc.
|
|
Delaware |
|
|
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Bio-Medical Applications of The
District of Columbia, Inc.
|
|
Delaware |
|
|
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Page 6
Exhibit [ ]
|
|
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Dialysis Services |
|
State of Incorporation |
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|
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Bio-Medical Applications of Torrance, Inc.
|
|
Delaware |
|
|
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Bio-Medical Applications of Trenton, Inc.
|
|
Delaware |
|
|
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Bio-Medical Applications of Ukiah, Inc.
|
|
Delaware |
|
|
|
Bio-Medical Applications of Union City, 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 Whittier, Inc.
|
|
Delaware |
|
|
|
Bio-Medical
Applications of Woonsocket, Inc.
|
|
Delaware |
|
|
|
Conejo Valley Dialysis, Inc.
|
|
Delaware |
|
|
|
Dialysis Services, Inc.
|
|
Delaware |
|
|
|
Dialysis America, LLC.
|
|
Alabama Georgia |
|
|
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FMC Dialysis Services — Oregon, LLC
|
|
Oregon |
|
|
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Gulf Region Mobile Dialysis, Inc.
|
|
Delaware |
|
|
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Fresenius Management Services, Inc.
|
|
Delaware |
|
|
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Haemo-Stat, Inc.
|
|
California |
|
|
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Home Intensive Care, Inc.
|
|
Delaware |
|
|
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National Medical Care, Inc
|
|
Delaware |
Page 7
Exhibit [ ]
|
|
|
Dialysis Services |
|
State of Incorporation |
|
|
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Neomedica, Inc
|
|
Delaware |
|
|
|
Qualicenters, Inc.
|
|
Colorado |
|
|
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San Diego Dialysis Services, Inc.
|
|
Delaware |
|
|
|
Santa Xxxxxxx Community Dialysis Center,
Inc
|
|
Delaware |
|
|
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Willamette Valley Kidney Center, LLC
|
|
Oregon |
Page 8
Exhibit Q
|
|
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Dialysis Products |
|
|
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Fresenius USA, Inc
|
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Massachusetts |
|
|
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Fresenius USA Home Dialysis, Inc
|
|
Delaware |
|
|
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Fresenius USA Marketing, Inc
|
|
Delaware |
|
|
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Fresenius USA of Puerto Rico, Inc.
|
|
Delaware |
|
|
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Fresenius USA Sales, Inc
|
|
Massachusetts |
|
|
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Life
Assist Medical Products Corp
|
|
Puerto Rico |
|
|
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NMC Medical Products, Inc
|
|
Delaware |
|
|
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Prime Medical, Inc.
|
|
Delaware |
|
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Renal Scientific Services, Inc.
|
|
Delaware |
Page 9
September , 1999
Page 10
SCHEDULE II
(LIST OF TRANSACTION DOCUMENTS)
AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
Dated as of September 27, 1999
NMC FUNDING CORPORATION,
as Transferor
LIST OF CLOSING DOCUMENTS
A. Transfer and Sale Documentation
1. Amended and Restated Transfer and Administration Agreement (the “Amended and
Restated TAA”) dated as of September 27, 1999 among Enterprise Funding Corporation (“Enterprise”),
Compass US Acquisition LLC (“Compass”), NMC Funding Corporation (the “Transferor”), National
Medical Care, Inc., as collection agent (the “Collection Agent”), the Bank Investors, Westdeutsche
Landesbank Girozentrale, New York Branch (“WestLB”), as Administrative Agent, and Bank of America,
N.A. (“Bank of America”), as Administrative Agent and as Agent (#127126).
2.
Fee Letter among the Transferor, Bank of America and Enterprise
(#128368).
3. Fee Letter among the Transferor, WestLB and Compass (#129611).
4. Amendment to the Parent Agreement (#129357).
5. Assignment Agreement between Compass and Enterprise (#129431).
B. Opinions
6. Opinion of Xxxxxxx X. Xxxx.
7. Opinion of Arent Fox Xxxxxxx Xxxxxxx & Xxxx, Special Counsel to the Transferor.
8. Opinion of Xxxxxx XxXxxxxxx & Fish, LLP, special Massachusetts counsel.
9. Opinion of Xxxxxx Xxxxx, General Counsel of FMC.
C. Corporate Documents
10. Good Standing Certificates for the Transferor from the Secretary of the
Commonwealth of Massachusetts and the Secretary of State of Delaware.
11. Good Standing Certificates for the Collection Agent from the Secretary of the
Commonwealth of Massachusetts and the Secretary of State of Delaware.
12. A Certificate of the Secretary of the Transferor substantially in the form of Exhibit
L of the TAA.
13. A Certificate of the Secretary of the Collection Agent substantially in the form of
Exhibit L of the TAA.
14. UCC-3 Amendments to the financing statements filed against the Transferor, filed
in the offices of the Town Clerk of Massachusetts and the Secretary of the Commonwealth of
Massachusetts (#130060).
2
September
, 1999
Page 11
EXHIBIT A
(LEGAL PROCEEDINGS)
EXHIBIT A
LIST OF ACTIONS AND SUITS
Exhibit A
Page 1
[Excerpted from Fresenius Medical Care Holdings. Inc.’s Report filed on Form 10-Q filed with the
Securities Exchange Commission for the quarter ended June 30, 1999 (the “10-Q”). Defined terms not
capitalized herein have the meaning given to them in the 10-Q]
NOTE 5. COMMITMENTS AND CONTINGENCIES
Contingent Non-NMC Liabilities of Grace New York (Now Known as Fresenius Medical Care
Holdings, Inc.)
In connection with the Merger, Grace Chemicals has agreed to indemnify the Company and NMC
against all liabilities of the Company and its successors, whether relating to events occurring
before or after the Merger, other than liabilities arising from or relating to NMC operations.
After the Merger the Company will remain contingently liable for certain liabilities with respect
to pre-Merger matters that are not related to NMC operations. The Company believes that in view of
the nature of the non-NMC liabilities and the expected impact of the Merger on Grace Chemicals’
financial position, the risk of significant loss from non-NMC liabilities is remote.
Were events to violate the tax-free nature of the Merger, the resulting tax liability would
be the obligation of the Company. Subject to representations by Grace Chemicals, the Company, and
Fresenius AG, Grace Chemicals has agreed to indemnify the Company for such a tax liability. If the
Company was not able to collect on the indemnity, the tax liability would have a material adverse
effect on the Company’s business, the financial condition of the Company and the results of
operations.
Legal Proceedings
Government Investigations
OIG Investigative Subpoenas
In October 1995, NMC received five investigative subpoenas from the Office of the Inspector
General (“OIG”) of the Department of Health and Human Services. The subpoenas were issued in
connection with an investigation being conducted by the OIG, the U.S. Attorney for the District of
Massachusetts and others concerning possible violations of federal laws, including the
anti-kickback statutes and the False Claims Act (the “OIG Investigation”). The subpoenas call for
extensive document production relating to various aspects of NMC’s business.
In connection with the OIG Investigation, the Company continues to receive additional
subpoenas directed to NMC or the Company to obtain supplemental information and documents
regarding the above-noted issues, or to clarify the scope of the original subpoenas.
The Company is cooperating with the OIG Investigation in providing supplemental information
and documents. The Company believes that the government continues to review and evaluate the
voluminous information the Company has provided. As
Exhibit A
Page 2
indicated above, the government continues, from time to time, to seek supplementing and/or
clarifying information from the Company. The Company understands that the government has utilized a
grand jury to investigate these matters. The Company expects that this process will continue while
the government completes its evaluation of the issues.
The OIG Investigation covers the following areas: (a) NMC’s dialysis services business
(“Dialysis Services”), principally relating to its Medical Director contracts and compensation;
(b) NMC’s treatment of credit balances resulting from overpayments received under the Medicare,
Medicaid, CHAMPUS and other government and commercial payors, its billing for home dialysis
services, and its payment of supplemental medical insurance premiums on behalf of indigent
patients; (c) NMC’s LifeChem laboratory subsidiary’s (“LifeChem”) business, including testing
procedures, marketing, customer relationships, competition, overpayments totaling approximately
$4.9 million that were received by LifeChem from the Medicare program with respect to laboratory
services rendered between 1989 and 1993, a 1997 review of dialysis facilities’ standing orders,
and the provision of discounts on products from NMC’s products division, grants, equipment and
entertainment to customers; and (d) NMC’s homecare division (“Homecare”) and, in particular,
information concerning intradialytic parenteral nutrition (“IDPN”) utilization, documentation of
claims and billing practices including various services, equipment and supplies and payments made
to third parties as compensation for administering IDPN therapy.
The government has indicated that the areas identified above are not exclusive, and that it
may pursue additional areas. As noted, the penalties applicable under the anti-kickback statutes,
the U.S. Federal False Claims Act (the “False Claims Act”) and other federal and state statutes
and regulations applicable to NMC’s business can be substantial. While NMC asserts that it is able
to offer legal and/or factual defenses with respect to many of the areas the government has
identified, it is expected that the government will assert that NMC has violated multiple
statutory and regulatory provisions. Additionally, qui tam actions alleging that NMC submitted
false claims to the government have been filed under seal by former or current NMC employees or
other individuals who may have familiarity with one or more of the issues under investigation. As
noted, under the False Claims Act, any such private plaintiff could pursue an action against NMC
in the name of the U.S. at his or her own expense if the government declines to do so.
Since October 1995 when the initial subpoenas were served NMC and the government have met
periodically to discuss issues in connection with the OIG Investigation, including theories of
liability. NMC and the government have been exploring the possibility of settling the matters
which are encompassed by the OIG Investigation and, as referenced below, have settled the
diagnostics investigation matter. There can be no assurance that any of the other matters subject
to the OIG Investigation will be settled. If however, one or more of the matters encompassed by
the OIG Investigation is settled, it may result in NMC acknowledging that its past practices
violated federal statutes, as well as NMC incurring substantial civil and criminal financial
penalties which could have a material adverse effect on the Company. If one or more of these
matters is not settled, the government may be expected to seek
Exhibit A
Page 3
substantial civil and criminal financial penalties and other sanctions including the suspension of
payments by, and the exclusion of NMC and its subsidiaries from, the Medicare program, Medicaid
program and other federal health care programs. See “Management’s Discussion and Analysis of
Financial Condition and Results of Operations — Contingencies.”
Diagnostics Subpoena
In October 1996, Biotrax International, Inc. (“Biotrax”) and NMC Diagnostics, Inc., (“DSI”)
both of which are subsidiaries of NMC, received a civil investigative subpoena from the OIG
concerning the possible submission of false or improper claims to, and their payment by, the
Medicare program. In May, 1999 the Company and the government entered into a settlement agreement
pursuant to which, among other things, the government has agreed to release the Company with
respect to this matter in exchange for a payment of approximately $16.8 million from the Company.
Medical Director Compensation
The government is investigating whether Dialysis Services compensation arrangements with its
Medical Directors constitute payments to induce referrals, which would be illegal under the
anti-kickback statutes, rather than payment for services rendered. Dialysis Services compensated
the substantial majority of its Medical Directors on the basis of a percentage of the earnings of
the dialysis center for which the Medical Director was responsible from the inception of NMC’s
predecessor in 1972 until January 1, 1995, the effective date of
Xxxxx II. Under the arrangements
in effect prior to January 1, 1995, the compensation paid to Medical Directors was adjusted to
include “add backs.” which represented a portion of the profit earned by NMC’s Medical Products
Group (“MPG”) on products purchased by the Medical
Director’s facility from MPG and (until January 1, 1992) a portion of the profit earned by LifeChem on laboratory services provided to patients at
the Medical Director’s facility. These adjustments were designed to allocate a profit factor to
each dialysis center relating to the profits that could have been realized by the center if it had
provided the items and services directly rather than through a subsidiary of NMC. The percentage of
profits paid to any specific Medical Director was reached through negotiation, and was typically a
provision of a multi-year consulting agreement.
To comply with provisions of OBRA 93 (as hereinafter defined) known as “Xxxxx II” if
Designated Health Services (as defined in Xxxxx II) are involved, Medical Director compensation
must not exceed fair market value and may not take into account the volume or value of referrals
or other business generated between the parties. Since January 1, 1995, Dialysis Services has
compensated its Medical Directors on a fixed compensation arrangement intended to comply with the
requirements of Xxxxx II. In renegotiating its Medical Director compensation arrangements in
connection with Xxxxx XX, Dialysis Services took and continues to take account of the
compensation levels paid to its Medical Directors in prior years.
Exhibit A
Page 4
Certain government representatives have expressed the view in meetings with counsel for NMC
that arrangements where the Medical Director was or is paid amounts
in excess of the “fair market
value” of the services rendered may evidence illegal payments to induce referrals, and that hourly
compensation is a relevant measure for evaluating the “fair market value” of the services. Dialysis
Services does not compensate its Medical Directors on an hourly basis and has asserted to the
government that hourly compensation is not a determinative measure of fair market value. Although
the Company believes that the compensation paid to its Medical Directors is generally reflective of
fair market value, there can be no assurances that the government will agree with this position or
that the Company ultimately will be able to defend its position successfully. Because of the wide
variation in local market factors and in the profit percentage contractually negotiated between
Dialysis Services and its Medical Directors prior to January 1, 1995, there is a wide variation in
the amounts that have been paid to Medical Directors.
As a result, the compensation that Dialysis Services has paid and is continuing to pay to a
material number of its Medical Directors could be viewed by the government as being in excess of
“fair market value,” both in absolute terms and in terms of hourly compensation. NMC has asserted
to the government that its compensation arrangements do not constitute Illegal payments to induce
referrals. NMC has also asserted to the government that OIG auditors repeatedly reviewed NMC’s
compensation arrangements with its Medical Directors in connection with their audits of the costs
claimed by Dialysis Services that the OIG stated in its audit reports that, with the exception of
certain technical issues, NMC had complied with applicable Medicare laws and regulations
pertaining to the ESRD program; and that NMC reasonably relied on these audit reports in
concluding that its program for or compensating Medical Directors was
lawful. There has been no
indication that the government will accept NMC’s assertions
concerning the legality of NMC’s arrangements generally or
NMC’s assertion that NMC reasonably relied on OIG audits, or
that the government will not focus on specific arrangements that Dialysis Services has made with one or
more Medical Directors and assert that those specific arrangements were or are unlawful.
The government is also investigating whether Dialysis Services profit sharing arrangements
with its Medical Directors influenced them to order unnecessary ancillary services and items. NMC
has asserted to the government that the rate of utilization of ancillary services and items by its
Medical Directors is reasonable and that it did not provide illegal inducements to Medical
Directors to order ancillary services and items.
Credit Balances
In the ordinary course of business, medical service providers like Dialysis Services receive
overpayments from Medicare intermediaries and other payors for services that they provide to
patients. Medicare intermediaries commonly direct such providers to notify them of the
overpayment and not remit such amounts to the intermediary by check or otherwise unless
specifically requested to do so. In 1992, the Health Care Financing Administration (“HCFA”)
adopted a regulation requiring certain Medicare providers, including dialysis centers, to file a
quarterly form listing unrecouped overpayments with the Medicare intermediary responsible for
reimbursing the provider.
Exhibit A
Page 5
The first
such filing was required to be made as of June 30, 1992 for the period beginning with
the initial date that the provider participated in the Medicare program and ending on June
30, 1992.
The government is investigating whether Dialysis Services intentionally understated the
Medicare credit balance reflected on its books, and records for the period ending June 30, 1992 by
reversing entries out of its credit balance account and taking overpayments into income in
anticipation of the institution of the new filing requirement. Dialysis Services policy was to
notify Medicare intermediaries in writing of overpayments upon receipt and to maintain unrecouped
Medicare overpayments as credit balances on the books and records of Dialysis Services for four
years; overpayments not recouped by Medicare within four years would be reversed from the credit
balance account and would be available to be taken into income. NMC asserts that Medicare
overpayments that have not been recouped by Medicare within four years are not subject to recovery
under applicable regulations and that its initial filing with the intermediaries disclosed the
credit balance on the books and records of Dialysis Services as shown in accordance with its
policy, but there can be no assurance that the government will accept NMC’s views. The government
has inquired whether other divisions including Homecare, LifeChem and DSI have appropriately
treated Medicare credit balances as well as credit balances of other
payors.
The government is also investigating whether Dialysis Services failed to disclose Medicare
overpayments that resulted from Dialysis Services obligation to
rebill commercial payors for
amounts originally billed to Medicare under HCFA’s Initial implementation of the Omnibus Budget
Reconciliation Act of 1993 (“OBRA 93”) amendments to the
secondary payor provisions of the Medicare
Act. Dialysis Services experienced delays in reporting a material amount of overpayments after the
Implementation of the OBRA 93 amendments. NMC asserts that most of these delays were the result of
the substantial administrative burdens placed on Dialysis Services as a consequence of the
changing and inconsistent instructions issued by HCFA with respect to the OBRA 93 amendments and
were not intentional. Substantially all overpayments resulting from the rebilling effort associated
with the OBRA 93 amendments have now been reported. Procedures are in place that are designed to
ensure that subsequent overpayments resulting from the OBRA 93 amendments will be reported on a
timely basis.
Exhibit A
Page 6
LifeChem made these disclosures to the government as part of an application to be admitted
to a voluntary disclosure program begun by the government in mid-1995. At the time of the
disclosures, LifeChem tendered repayment to the government of the $4.9 million in overpayments.
After the OIG Investigation was announced, the government indicated that LifeChem had not been
accepted into its voluntary disclosure program. The government has deposited the $4.9 million
check with NMC’s approval. The matters disclosed in LifeChem’s September 22, 1995 voluntary
disclosure are a subject of the OIG Investigation.
On June 7, 1996, LifeChem voluntarily disclosed an additional billing problem to the
government that had resulted in LifeChem’s receipt of between $40,000 and $160,000 in overpayments
for laboratory services rendered in 1991. LifeChem advised the government that this overpayment
resulted from the submission for payment of a computer billing tape that had not been subjected to
a “billing rules” program designed to eliminate requests for payments for laboratory tests that are
included in the Composite Rate and that were not eligible for separate reimbursement. LifeChem also
advised the government that there may have been additional instances during the period from 1990 to
1992 when other overpayments were received as a result of the submission of computer billing tapes
containing similar errors and that it was in the process of determining whether such additional
overpayments were received. On June 21, 1996, LifeChem advised the government that the 1991 billing
problem disclosed on June 7, 1996 resulted in an overpayment of approximately $112,000. LifeChem
also advised the government that certain records suggested instances in July 1990 and August 31
through September 11, 1990, when billing tapes may have been
processed without rules processing.
LifeChem continued its effort to determine whether any other
overpayments occurred relating to
the “billing rules” problem and, in March 1997, advised the government that an additional
overpayment of approximately $260,000 was made by Medicare.
On
April 6, 1999, LifeChem voluntarily disclosed an additional billing problem to the
government that resulted in LifeChem’s receipt of overpayments for laboratory services rendered
between 1994 and 1999. In 1994, as a result of the advice of a billing consultant, LifeChem
began to bill for platelet testing performed in connection with complete blood counts. This
advice was confirmed by the consultant in 1997 as part of a review performed by the consultant
under the auspices of LifeChem’s then outside counsel. In 1999, however, an internal inquiry
resulted in a reexamination of this advice and LifeChem determined that the prior advice was
incorrect. As a result LifeChem voluntarily disclosed and repaid the overpayment to the
government in the amount of $8.6 million. LifeChem also has notified the government of the
disclosure. There can be no assurances that the government will agree that LifeChem’s
disclosure should not result in a sanction beyond repayment of the
overpayment amount.
Capitation for routine tests and panel design. In October 1994, the OIG issued a special
fraud alert in which it stated its view that the industry practice of offering to perform or
performing the routine tests covered by the composite rate payment method (the “Composite
Rate”) at a price below fair market value, coupled with an agreement by a dialysis center to
refer all or most of its non-Composite Rate tests to the laboratory,
Exhibit A
Page 8
Supplemental Medical Insurance
Dialysis Services provided grants or loans for the payment of premiums for supplemental
medical insurance (under which Medicare Part B coverage is provided) on behalf of a small
percentage of its patients who are financially needy. The practice of providing loans or grants
for the payment of supplemental medical insurance premiums by NMC was one of the subjects of
review by the government as part of the OIG Investigation.
The Government, however, advised the Company orally that it is no longer pursuing this
issue. Furthermore, as a result of the passage of HIPAA, the Company terminated making such
payments on behalf of its patients. Instead, the Company, together with other representatives
of the industry, obtained an advisory opinion from the OIG, whereby, consistent with specified
conditions, the Company and other similarly situated providers may make contributions to a
non-profit organization that has volunteered to make these payments on behalf of indigent ESRD
patients, Including patients of the Company. In addition, the government has indicated that it
is investigating the method by which NMC made Medigap payments on behalf of its indigent
patients.
Overpayments for Home Dialysis Services
NMC acquired Home Intensive Care, Inc. (“HIC”), an in-center and home dialysis service
provider, in 1993. At the time of the acquisition, HIC was the subject of a claim by HCFA that HIC
had received payments for home dialysis services in excess of the Medicare reasonable charge for
services rendered prior to February 1, 1990. NMC settled the HCFA claim against HIC in 1994. The
government is investigating whether the settlement concerning the alleged overpayments made to
HIC resolved all issues relating to such alleged overpayments. The government is also investigating
Whether an NMC subsidiary, Home Dialysis Services, Inc. (“HDS”), received payments similar to the
payments that HIC received, and whether HDS improperly billed for home dialysis services in excess
of the monthly cost cap for services rendered on or after February 1, 1990. The government is
investigating whether NMC was overpaid for services rendered. NMC asserts that the xxxxxxxx by HDS
were proper, but there can be no assurance that the government will accept NMC’s view.
LifeChem
Overpayments. On September 22, 1995, LifeChem voluntarily disclosed certain billing
problems to the government that had resulted In LifeChem’s receipt of approximately $4.9
million in overpayments from the Medicare program for laboratory services rendered between
1989 and 1993. LifeChem asserts that most of these overpayments relate to errors caused by a
change in LifeChem’s computer systems and that the remainder of the overpayments were the
result of the incorrect practice of billing for a complete blood count with differential when
only a complete blood count was ordered and performed, and of the incorrect practice of
billing for a complete blood count when only a hemoglobin or hematocrit test was ordered.
LifeChem asserts that the overpayments it received were not caused by fraudulent activity, but
there can be no assurance that the government will accept LifeChem’s view.
Exhibit A
Page 7
violates the anti-kickback statutes. In response to this alert, LifeChem changed its practices
with respect to testing covered by the Composite Rate to increase the amount charged to both
Dialysis Services and third-party dialysis centers and reduce the number of tests provided for the
fixed rate. The government is investigating LifeChem’s practices with respect to these tests.
Benefits provided to dialysis centers and persons associated with dialysis centers. The
government is investigating whether Dialysis Services or any third-party dialysis center or any
person associated with any such center was provided with benefits in order to induce them to use
LifeChem services. Such benefits could include, for example, discounts on products or supplies,
the provision of computer equipment, the provision of money for the purchase of computer
equipment, the provision of research grants and the provision of entertainment to customers. NMC
has identified certain instances in which benefits were provided to customers who purchased
medical products from NMC Medical Products, Inc., NMC’s products
company, and used LifeChem’s
laboratory services. The government may assert that the provision of such benefits violates,
among other things, the anti-kickback statutes. In December 1998, the former Vice President of
Sales responsible for NMC’s laboratory and products divisions plead guilty to the payment of
illegal kickbacks to obtain laboratory business for LifeChem. In February 1999, the former
President of NMC Medical Products, Inc. was indicted by the government for the payment of these
same and/or similar kickbacks.
Business and testing practices. As noted above, the government has identified a number of
specific categories of documents that it is requiring NMC to produce in connection with LifeChem
business and testing practices. In addition to documents relating to the areas discussed above,
the government has also required LifeChem to produce documents relating to the equipment and
systems used by LifeChem in performing and billing for clinical laboratory blood tests, the design
of the test panels offered and equisition forms used by LifeChem, the utilization rate for
certain tests performed by LifeChem, recommendations concerning diagnostic codes to be used in
ordering tests for patients with given illnesses or conditions, internal and external audits and
Investigations relating to LifeChem’s billing and testing. Subsequently, the government served an
investigative subpoena for documents concerning the Company’s 1997 review of dialysis facilities’
standing orders, and responsive documents were provided. The government has served investigative
subpoenas requiring NMC to update its production on the above issues and to produce contract files
for twenty-three identified dialysis clinic customers. The government is investigating each of
these areas, and asserts that LifeChem and/or NMC have violated the False Claims Act and/or the
Anti-Kickback Statute through the test ordering, paneling, requisitioning, utilization, coding,
billing and auditing practices described above. In June 1999, a former Vice President of Marketing
of NMC Medical Products, Inc. plead guilty to a charge of conspiracy to defraud Medicare in
connection with the marketing of certain hepatitis tests.
Intradialytic Parenteral Nutrition
Administration kits. One of the activities of SRM is to provide IDPN therapy to dialysis
patients at both NMC-owned facilities and at facilities owned by other providers.
Exhibit A
Page 9
IDPN therapy was provided by Homecare prior to its divestiture. IDPN therapy is typically
provided to the patient 12-13 times per month during dialysis
treatment. Bills are submitted
to Medicare on a monthly basis and include separate claims for reimbursement for supplies,
including, among other things, nutritional solutions, administration kits and infusion pumps.
In February 1991, the Medicare carrier responsible for processing Homecare’s IDPN claims
issued a Medicare advisory to all parenteral and enteral nutrition suppliers announcing a
coding change for reimbursement of administration kits provided in connection with IDPN
therapy for claims filed for items provided on or after April 1, 1991. The Medicare allowance
for administration kits during this period was approximately $625 per month per patient. The
advisory stated that IDPN providers were to indicate the “total number of actual days” when
administration kits were “used,” instead of indicating that a one-month supply of
administration kits had been provided. In response, Homecare billed for administration kits on
the basis of the number of days that the patient was on an IDPN treatment program during the
billing period, which typically represented the entire month, as opposed to the number of days
the treatment was actually administered. During the period from April 1991 to June 1992,
Homecare had an average of approximately 1,200 IDPN patients on service.
In May 1992, the carrier issued another Medicare advisory to all PEN suppliers in which
it stated that it had come to the carrier’s attention that some IDPN suppliers had not been
prorating their billing for administration kits used by IDPN patients and that providers
should not bill for administration kits on the basis of the number of days that the patient
was on an IDPN treatment program during the billing period. The advisory stated further that
the carrier would be conducting “a special study to determine whether or not overpayments
have occurred as a result of incorrect billing” and that “if overpayments have resulted,
providers that have incorrectly billed” would “be contacted so that refunds can be
recovered.” Homecare revised its billing practices in response to
this advisory for claims filed for items provided or after July 1,
1992. Home care was
not asked to refund any amounts relating to its billings for administration kits following
the issuance of the second advisory.
The government asserts that NMC submitted false claims for administration kits during
the period from 1988 to June 30, 1996, and that Homecare’s billing for administration kits
during this period violated, among other things, the False Claims Act.
Infusion
Pumps and IV Poles. During the time period covered by the
subpoenas, Medicare
regulations permitted IDPN providers to bill Medicare for the infusion pumps and, until 1992,
for IV poles provided to IDPN patients in connection with the administration of IDPN
treatments. These regulations do not expressly specify that a particular pump and IV pole be
dedicated to a specific patient, and NMC asserts that these regulations permitted Homecare to
bill Medicare for an infusion pump and IV pole so long as the patient was infused using a
pump and IV pole. Despite the absence of an express regulatory specification, Homecare
developed a policy to deliver to a dialysis center a dedicated infusion pump and IV pole for
each patient, although the Company cannot represent that Homecare followed this policy in
every instance. The government is investigating the propriety of Homecare’s billings for
infusion pumps and IV poles and asserts that Homecare’s billings violate the False Claims
Act.
Exhibit A
Page 10
As noted above, under the new policies published by HCFA with respect to IDPN therapy, the
Company has not been able to bill for infusion pumps after July 1, 1996. The government
discontinued reimbursement for IV poles in 1992.
“Hang fees” and other payments. IDPN therapy is typically provided to the patient during
dialysis by personnel employed by the dialysis center treating the patient with supplies provided
and billed to Medicare by Homecare in accordance with the Medicare parenteral nutrition supplier
rules. In order to compensate dialysis centers for the costs incurred in administering IDPN
therapy and monitoring the patient during therapy, Homecare followed the practice common in the
industry of paying a “hang fee” to the center. Dialysis centers are responsible for reporting such
fees to HCFA on their cost reports. For Dialysis Services dialysis centers, the fee was $30 per
administration, based upon internal Dialysis Services cost calculations. For third-party dialysis
centers, the fee was negotiated with each center, typically pursuant to a written contract, and
ranged from $15 to $65 per administration. The Company has identified instances in which other
payments and amounts beyond that reflected in a contract were paid to these third-party centers.
The Company has stopped paying “hang fees” to both Dialysis Services and third-party facilities.
In July 1993, the OIG issued a management advisory alert to HCFA in which it stated that
“hang fees” and other payments made by suppliers of IDPN to dialysis centers “appear to be illegal
as well as unreasonably high.” The government is investigating the nature and extent of the “hang
fees” and other payments made by Homecare as well as payments by Homecare to physicians whose
patients have received IDPN therapy. The government asserts that the payments by Homecare to
dialysis centers violate, among other things, the anti-kickback statutes.
Utilization of IDPN. Since 1984, when HCFA determined that Medicare should cover IDPN and
other parenteral nutrition therapies, the Company has been an industry leader in identifying
situations in which IDPN therapy is beneficial to end-stage renal disease (“ESRD”) patients. It is
the policy of the Company to seek Medicare reimbursement for IDPN therapy only when it is
prescribed by a patient’s treating physician and when it believes that the circumstances satisfy
the requirements published by HCFA and its carrier agents. Prior to 1994, HCFA and its carriers
approved for payment more than 90% of the IDPN claims submitted by Homecare. After 1993, the rate
of approval for Medicare reimbursement for IDPN claims submitted by Homecare for new patients and
by the infusion industry in general, fell to approximately 9%. The Company contends that the
reduction in rates of approval occurred because HCFA and its carriers implemented an unauthorized
change in coverage policy without giving notice to providers. While NMC continued to offer IDPN to
patients pursuant to the prescription of the patients’ treating physicians and to submit claims
for Medicare reimbursement when it believed the requirements stated in HCFA’s published
regulations were satisfied, other providers responded to the drop in the approval rate for new
Medicare IDPN patients by abandoning the Medicare IDPN business, cutting back on the number of
Medicare patients to whom they provide IDPN, or declining to add new Medicare patients. Beginning
in 1994 the number of patients to whom NMC provided IDPN increased as a result.
Exhibit A
Page 11
The government is investigating the utilization rate of IDPN therapy among NMC
patients, whether NMC submitted IDPN claims to Medicare for patients who were not eligible for
coverage, and whether documentation of eligibility was adequate. NMC asserts that the utilization
rate of IDPN therapy among its dialysis patients, which, in 1995, averaged less than 3.5%, is the
result of the factors discussed above and that it is the policy of Homecare to seek Medicare
reimbursement for IDPN therapy prescribed by the patients’ treating physician in accordance with
the requirements published by HCFA and its carrier agents. There can be no assurance that the
government will accept NMC’s view. The government asserts that Homecare submitted IDPN claims for
individuals who were not eligible for coverage and/or with inadequate documentation of eligibility.
The Company believes that it has presented to the government substantial defenses which
support NMC’s interpretation of coverage rules of IDPN as HCFA and its carriers published and
explained them, and which demonstrated that HCFA and its carriers improperly implemented
unpublished, more restrictive criteria after 1993. Nevertheless, the government is expected to
assert in the OIG Investigation that, on a widespread basis, NMC submitted and received payments
on claims for IDPN to Medicare for patients who were not eligible for coverage, and for whom the
documentation of eligibility was inadequate.
In addition, the government asserts that, in a substantial number of cases, documentation of
eligibility was false or inaccurate. With respect to some claims, the Company has determined that
false or inaccurate documentation was submitted, deliberately
or otherwise. The
government continues to investigate the IDPN claims.
Qui Tam Actions
The Company and NMC is aware that certain qui tam actions have been filed in various
jurisdictions. Each of these actions is under seal and in each action, pursuant to court order the
seal has been modified to permit the Company, NMC and other affiliated defendants to disclose the
complaint to any relevant investors, financial institutions and/or underwriters, their successors
and assigns and their respective counsel and to disclose the allegations in the complaints in
their respective U.S. Securities and Exchange Commission (the “SEC” or the “Commission”) and New
York Stock Exchange (“NYSE”) periodically required filings.
A
qui tam action was filed in the United States District Court for the
Southern District of
Florida in June 1994, amended on July 8, 1996 and disclosed to the Company on July 10, 1996. It
alleges, among other things, that Grace Chemicals and NMC violated the False Claims Act in
connection with certain billing practices regarding IDPN and the administration of EPO and that as
a result of this allegedly wrongful conduct, the United States suffered actual damages in excess
of $200 million. The Amended Complaint also seeks the imposition of a constructive trust on the
proceeds of the NMC dividend to Grace Chemicals for the benefit of the United States on the ground
that the Merger constitutes a fraudulent conveyance that will render NMC unable to satisfy the
claims asserted in the Amended Complaint.
Exhibit A
Page 12
A qui tam action was filed in the United States District Court for the Southern
District of Florida in December 1994 and disclosed to the Company on April 16, 1999. It alleges,
among other things, that NMC violated the False Claims Act in connection with certain billing
practices regarding IDPN and the cost relating thereto. The second qui tam was filed by the same
relator which filed the first qui tam and covers the same services covered by the first qui tam
complaint.
A qui tam action was filed in the United States District Court for the Middle District of
Florida in 1995 and disclosed to the Company on or before November 7, 1996. It alleges, among
other things, that NMC and certain NMC subsidiaries violated the False Claims Act in connection
with the alleged retention of over-payments made under the Medicare program, the alleged
submission of claims in violation of applicable cost caps and the payment of supplemental Medicare
insurance premiums as an alleged inducement to patients to obtain dialysis products and services
from NMC. The complaint alleges that as a result of this allegedly wrongful conduct, the United
States suffered damages in excess of $10 million including applicable fines.
A qui tam action was filed in the United States District Court for the Eastern District of
Pennsylvania in May 1995 and was disclosed to the Company in August 1997. It alleges, among other
things, that Biotrax violated the False Claims Act in connection with its submission of claims to
the Medicare program for diagnostic tests and induced overutilization of such tests in the medical
community through improper marketing practices also in violation of the False Claims Act. This qui
tam action was dismissed as part of the diagnostics civil investigation settlement reached in May
1999. See “Note 5 -Commitments and Contingencies — Diagnostics Subpoena.
A
qui tam action was filed in the United States District Court for the Eastern District of
Pennsylvania in August 1996 and was disclosed to the Company in
August 1997. It alleges, among
other things, that Biotrax and NMC Diagnostic Services induced overutilization of diagnostic tests
by several named and unnamed physician defendants in the local medical community, through improper
marketing practices and fee arrangements, in violation of the False
Claims Act. This qui tam action
was dismissed as part of the diagnostics civil investigation settlement reached in May 1999. See
“Note 5 — Commitments and Contingencies — Diagnostics Subpoena.”
A qui tam action was filed in the United States District Court for the Eastern District of
Pennsylvania in November 1996 and was disclosed to the Company in August 1997. It alleges, among
other things, that NMC, DSI and Biotrax violated the False Claims Act in connection with the
submission of claims to the Medicare program by improperly upcoding and otherwise billing for
various diagnostic tests. This qui tam action was dismissed as part of the diagnostics civil
investigation settlement reached in May 1999. See “Note 5 — Commitments and Contingencies —
Diagnostics Subpoena.”
A qui tam action was filed in the United States District Court for the District of Delaware
in January 1997 and was disclosed to the Company in September 1997. It alleges, among other
things, that NMC and Biotrax violated the False Claims Act in connection with the submission of
claims to the Medicare program for diagnostic tests,
Exhibit A
Page 13
and induced overutilization of such tests through improper marketing practices which
provided impermissible incentives to health care providers to order these tests. This qui tam
action was dismissed as part of the diagnostics civil investigation settlement reached in May
1999. See “Note 5 — Commitments and Contingencies — Diagnostics Subpoena.”
A qui tam action was filed in the United States District Court for the District of New
Jersey in February 1997 and was disclosed to the Company in September 1997. It alleges, among
other things, that DSI and NMC violated the False Claims Act in connection with the submission
of claims to the Medicare program for reimbursement for diagnostic tests, by causing unnamed
physicians to overutilize these tests though a variety of fee arrangements and other
impermissible inducements. This qui tam action was dismissed as part of the diagnostics civil
investigation settlement reached in May 1999. See “Note 5 — Commitments and Contingencies —
Diagnostics Subpoena.”
A qui tam was filed in the United States District Court for the District of Massachusetts
in 1994 and was disclosed to the Company in February 1999. It alleges among other things that
NMC violated the False Claims Act and the Anti-Kickback Statute in connection with certain
billing and documentation practices regarding IDPN therapy, home oxygen therapy and certain
medical billings in NMC’s Chicago office.
Each of the qui tam complaints asserts that as a result of the allegedly wrongful conduct,
the United States suffered damages and that the defendants are liable to the United States for
three times the amount of the alleged damages plus civil penalties of up to $10,000 per false
claim. An adverse result in any of the qui tam actions could have a material adverse effect on
the Company’s business, financial condition or results of operations.
OIG Agreements
As a result of discussions with representatives of the United States in connection with the
OIG Investigation, certain agreements (the “OIG Agreements”) have been entered into to guarantee
the payment of any obligations of NMC to the United States (an “Obligation”) relating to or
arising out of the OIG Investigation and the qui tam action filed in the Southern District of
Florida (the “Government Claims”). For the purposes of the OIG Agreements, an Obligation is (a)
a liability or obligation of NMC to the United States in respect of a Government Claim pursuant
to a court order (i) which is final and nonappealable or (ii) the enforcement of which has not
been stayed pending appeal or (b) a liability or obligation agreed to be an Obligation in a
settlement agreement executed by Fresenius Medical Care, the Company or NMC, on the one hand,
and the United States, on the other hand. As stated elsewhere herein, the outcome of the OIG
Investigation cannot be predicted.
Pursuant to the OIG Agreements, upon consummation of the Merger, FMC, the Company and NMC
provided the United States with a joint and several unconditional guarantee of payment when due
of all Obligations (the “Primary Guarantee”). As credit support for this guarantee, NMC
delivered an irrevocable standby letter of credit in the amount of $150 million. The United
States will return such letter of credit (or any renewal
Exhibit A
Page 14
or replacement) for cancellation when all Obligations have been paid in full or it is
determined that NMC has no liability in respect of the Government Claims. Under the terms of the
Merger, any potential resulting monetary liability has been retained
by NMC, and the Company has
indemnified Grace Chemicals against all potential liability arising from or relating to the OIG
Investigation.
FMC and the Company and the United States state in the OIG Agreements that they will
negotiate in good faith to attempt to arrive at a consensual resolution of the Government Claims
and, in the context of such negotiations, will negotiate in good faith as to the need for any
restructuring of the payment of any Obligations arising under such resolution, taking into account
the ability of FMC and the Company to pay the Obligations. The OIG Agreements state that the
foregoing statements shall not be construed to obligate any person to enter into any settlement of
the Government Claims or to agree to a structured settlement. Moreover, the OIG Agreements state
that the statements described in the first sentence of this paragraph are precatory and statements
of intent only and that (a) compliance by the United States with such provisions is not a
condition or defense to the obligations of FMC and the Company under the OIG Agreements and (b)
breach of such provisions by the United States cannot and will not be
raised by FMC and the
Company to excuse performance under the OIG Agreements. Neither the entering into of the OIG
Agreements nor the providing of the Primary Guarantee and the $150 million letter of credit is an
admission of liability by any party with respect to the OIG Investigation, nor does it indicate
the liability, if any, which may result therefrom.
The foregoing describes the material terms of the OIG Agreements, copies of which were
previously filed with the Commission and copies of which may be examined without charge at the
public reference facilities maintained by the Commission at
Room 0000, 000 Xxxxx Xxxxxx, X.X.
Washington, D.C. 20549, and at the Regional Offices of the Commission located at Xxxxx 0000,
Xxxxxxxx Xxxxxx, 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-2551 and Room 1300, 0 Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Copies of such material will also be made available by mail
from the Public Reference Branch of the Commission at 000 Xxxxx
Xxxxxx, X.X. Washington, D.C.
20549, at prescribed rates. The foregoing description does not purport to be complete and is
qualified in its entirety by reference to such agreements.
An adverse determination with respect to any of the issues addressed by the subpoenas, or
any of the other issues that have been or may be identified by the government, could result in
the payment of substantial fines, penalties and forfeitures, the suspension of payments or
exclusion of the Company or one or more of its subsidiaries from the Medicare program and other
federal programs, and changes in billing and other practices that could adversely affect the
Company’s revenues. Any such result could have a material adverse effect on the Company’s
business, financial condition and results of operations.
Omnibus Budget Reconciliation Act of 1993
OBRA 93 affected the payment of benefits under Medicare and employer health plans for
certain eligible ESRD patients. In July 1994, HCFA issued an instruction to
Exhibit A
Page 15
Medicare claims processors to the effect that Medicare benefits for the patients affected
by OBRA 93 would be subject to a new 18-month “coordination of benefits” period. This instruction
had a positive impact on NMC’s dialysis revenues because, during the 18-month coordination of
benefits period, patients’ employer health plans were responsible for payment, which was
generally at rates higher than that provided under Medicare.
In April 1995, HCFA issued a new instruction, reversing its original instruction in a
manner that would substantially diminish the positive effect of the original instruction on
NMC’s dialysis business. HCFA further proposed that its new instruction be effective retroactive
to August 1993, the effective date of OBRA 93.
NMC ceased to recognize the incremental revenue realized under the original Program
Memorandum as of July 1, 1995, but it continued to bill employer health plans as primary payors
for patients affected by OBRA 93 through December 31, 1995. As of January 1, 1996, NMC commenced
billing Medicare as primary payor for dual eligible ESRD patients affected by OBRA 93, and then
began to rebill in compliance with the revised policy for services rendered between-April 24 and
December 31, 1995.
On May 5, 1995, NMC filed a complaint in the U.S. District Court for the District of Columbia
(National Medical Care, Inc. and Bio-Medical Applications of Colorado, Inc. d/b/a Northern
Colorado Kidney Center v. Shalala, C.A. No. 95-0860 (WBB)) seeking to preclude HCFA from
retroactively enforcing its April 24, 1995 implementation of the OBRA 93 provisions relating to
the coordination of benefits for dual eligible ESRD patients. On May 9, 1995, NMC moved for a
preliminary injunction to preclude HCFA from enforcing its new policy retroactively, that is, to
billings for services provided between August 10, 1993 and April 23, 1995. On June 6, 1995, the
court granted NMC’s request for a preliminary injunction and in December of 1996, NMC moved for
partial summary judgment seeking a declaration from the Court that HCFA’s retroactive
application of the April 1995 rule was legally invalid.
HCFA cross moved for summary judgment on the grounds that the April 1995 rule was validly
applied prospectively. In January 1998, the court granted NMC’s motion for partial summary
judgment and entered a declaratory judgment in favor of NMC, holding HCFA’s retroactive
application of the April 1995 rule legally invalid, and based on its finding, the Court also
permanently enjoined HCFA from enforcing and applying the April 1995 rule retroactively against
NMC. The Court took no action on HCFA’s motion for summary judgment pending completion of
outstanding discovery. On October 5, 1998 NMC filed it’s own motion for summary judgment
requesting that the Court declare HCFA’s prospective application of the April 1995 rule invalid
and permanently enjoin HCFA from prospectively enforcing and applying the April 1995 rule. The
Court has not yet ruled on the parties’ motions. HCFA elected not to appeal from the Court’s June
1995 and January 1998 orders. HCFA may, however, appeal all rulings at the conclusion of the
litigation. If HCFA should successfully appeal so that the revised interpretation would be applied
retroactively, Dialysis Services may be required to refund the payments received from employer
health plans for services provided after August 10, 1993 under HCFA’s original implementation, and
to re-bill Medicare for the same services, which would result in a net loss to Dialysis Services
of approximately $120 million attributable to all periods prior to December 31, 1995. Also, in
such event, the Company’s business, financial position and results of operations would be
materially adversely affected.
Exhibit A
Page 16
Intradialytic Parenteral Nutrition Coverage Issues
SRM administers IDPN therapy to chronic dialysis patients who suffer from severe
gastrointestinal malfunctions. IDPN therapy was provided by Homecare prior to its divestiture.
After 1993, Medicare claims processors sharply reduced the number of IDPN claims approved for
payment as compared to prior periods. NMC believes that the reduction in IDPN claims represented an
unauthorized policy coverage change. Accordingly, NMC and other IDPN providers pursued various
administrative and legal remedies, including administrative appeals, to address this reduction.
In November 1995, NMC filed a complaint in the U.S. District Court for the Middle District of
Pennsylvania seeking a declaratory judgment and injunctive relief to prevent the implementation of
this policy coverage change. (National Medical Care, Inc. v. Shalala, 3:CV-95-1922 (RPC)).
Subsequently, the District Court affirmed a prior report of the magistrate judge dismissing NMC’s
complaint, without considering any substantive claims, on the grounds that the underlying cause of
action should be submitted fully to the administrative review processes available under the
Medicare Act. NMC decided not to appeal the Court’s decision, but rather, to pursue the claims
through the available administrative processes.
NMC was successful in pursuing these claims through the administrative process, receiving
favorable decisions from Administrative Law Judges in more than 80% of its cases. In early 1998, a
group of claims which had been ruled on favorably were remanded by the Medicare Appeals Council to
a single Administrative Law Judge (the “ALJ”) with
extensive instructions concerning the review of
these decisions. A hearing was scheduled on the remanded claims to take place in July, but later
postponed until October 1998.
Prior
to the July hearing date, the United States Attorney for the District of Massachusetts requested that the hearing be
stayed pending resolution of the OIG Investigation, on the basis that proceeding could adversely
effect the government’s investigation as well as the government’s efforts to confirm its belief
that these claims are false. Prior to the ALJ issuing a decision on the stay request, the U.S.
Attorney’s Office requested that NMC agree to a stay in the proceedings in order to achieve a
potential resolution of the IDPN claims subject to the OIG Investigation as well as those which are
subject to the administrative appeals process. NMC agreed to this request, and together with the
U.S. Attorney’s Office requested a stay. The ALJ agreed to this request in order to allow the
parties the opportunity to resolve both the IDPN claims which are the subject of the OIG
Investigation and the IDPN claims which are the subject of the administrative proceedings. In March
1999 negotiations between NMC and the U.S. Attorney’s Office failed to progress and NMC requested
that the stay be lifted. The ALJ agreed to NMC’s request and on April 19, 1999 the ALJ hearing
began. The hearing process is expected to proceed for several months. At the same time, NMC and the
U.S. Attorney’s Office are continuing to discuss potential settlement of both the claims relating
to the OIG Investigation and the claims which are subject to administrative appeals. At this time,
it is not possible to determine whether NMC and
Exhibit A
Page 17
the government will be able to resolve issues
surrounding the IDPN claims. Further proceedings on other administrative appeals related to unpaid
claims remain stayed.
Exhibit A
Page 18
Although NMC management believes that those unpaid IDPN claims were consistent with
published Medicare coverage guidelines and ultimately will be approved for payment, there can be no
assurance that the claims on appeal will be approved for payment or, to the extent approved,
collected in full. Such claims represent substantial accounts receivable of NMC, amounting to
approximately $150 million as of June 30, 1999.
If NMC is unable to collect its IDPN receivable, either through the administrative appeal
process or through negotiation, or if IDPN coverage is reduced or eliminated, depending on the
amount of the receivable that is not collected and/or the nature of the coverage change, the
Company’s business, financial condition and results of operations could be materially adversely
affected. NMC’s IDPN receivables are included in the net assets of the Company’s discontinued
operations. However, these receivables have not been sold and will remain classified as
discontinued operations until they have been settled. See Notes to Consolidated Financial
Statements Note 4 -“Discontinued Operations.”
Other Legal Proceedings
District of New Jersey Investigation
NMC has received multiple subpoenas from a federal grand jury in the District of New Jersey
investigating, among other things, whether NMC sold defective products, the manner in which NMC
handled customer complaints and certain matters relating to the development of a new dialyzer
product line. NMC is cooperating with this investigation and has provided the grand jury with
extensive documents. In February, 1996, NMC received a letter from the U.S. Attorney for the
District of New Jersey indicating that it is the target of a federal grand jury investigation into
possible violations of criminal law-in connection with Its efforts to
persuade the FDA to lift a January 1991 import
hold issued with respect to NMC’s Dublin, Ireland,
manufacturing facility. In June 1996, NMC
received a letter from the U.S. Attorney for the District of New Jersey indicating that the U.S.
Attorney had declined to prosecute NMC with respect to a submission related to NMC’s effort to
lift the import hold. The letter added that NMC remains a subject of a federal grand jury’s
investigation into other matters. NMC has produced documents in response to a June 1996 subpoena
from the federal grand jury requesting certain documents in connection with NMC’s imports of the
FOCUS(R) dialyzer from January 1991 to November 1995. The government investigators and the Company
have narrowed the issues with respect to which the government has previously expressed concerns
and are continuing discussions in order to resolve this investigation. However, the outcome and
impact, if any, of these discussions and potential resolution on the Company’s business, financial
condition or results of operations cannot be predicted at this time.
Commercial Insurer Litigation
In 1997, the Company, NMC and certain named NMC subsidiaries, were served with a civil
complaint filed by Aetna Life Insurance Company in the U.S. District Court for the Southern
District of New York (Aetna Life Insurance Company v. National Medical Care,
Exhibit A
Page 19
Inc. et al, 97-Civ-9310). In April 1999, Aetna amended its complaint to include its
affiliate, Aetna U.S. Healthcare, Inc., as an additional plaintiff, and to make certain other
limited changes in its pleading. Based in large part on information contained in prior securities
filings, the lawsuit alleges inappropriate billing practices for nutritional therapy, diagnostic
and clinical laboratory tests and misrepresentations. The amended complaint seeks unspecified
damages and costs. This matter is at a relatively early stage in the litigation process, with
substantial discovery just beginning and its outcome and impact on the Company cannot be predicted
at this time. However, the Company, NMC and its subsidiaries believe that they have substantial
defenses to the claims asserted, and intend to continue to vigorously defend the lawsuit. Other
private payors have contacted the Company and may assert that NMC received excess payments and
similarly, may join the lawsuit and seek reimbursement and other damages from NMC. An adverse
result could have a material adverse effect on the Company’s business, financial condition or
results of operations.
In May 1999, the Company filed counter-claims against Aetna Life Insurance Company and Aetna
U.S. Healthcare, Inc. based on inappropriate claim denials and delays in claim payments. The
Company is also investigating similar counter-claims against the other private payors which have
contacted the Company.
Administrative Appeals
The Company regularly pursues various administrative appeals relating to reimbursement issues
in connection with its dialysis facilities. One such appeal consists of a challenge to the
Medicare regulation which capped reimbursement for the bad debts incurred by dialysis facilities.
In 1998, the United States Court of Appeals for the District of Columbia ruled in favor of the
Company in connection with the bad debt Issue, holdinig that the Secretary of Health & Human
Services had not adequately justified the bad debt regulation and ruling that the government’s
order adopting the rule was xxxxxxxx and capricious. The Court of Appeals remanded the matter to
the Secretary to provide a more adequate explanation of the bad debt cap or to abandon It.
Subsequently, the Court modified its holding to continue the bad debt regulation in effect pending
remand. The Company is continuing settlement discussions with the government in an attempt to
recover reimbursement for disallowed bad debt expenses. The Company cannot predict the outcome of
these discussions.
Exhibit A
Page 20
ITEM 1. LEGAL PROCEEDINGS
As discussed in greater detail below, most aspects of NMC’s U.S. businesses are the subject of
criminal or civil investigations by several federal agencies and authorities, the outcome of which
cannot be predicted. If the government were successfully to pursue claims arising from any of these
investigations, NMC and one or more of its subsidiaries could be subject to civil or criminal
penalties, including substantial fines, suspension of payments or exclusion from the Medicare and
Medicaid programs as well as other federal health care benefit programs, which provide over 60% of
NMC’s revenues. In addition, NMC could be required to change billing or other practices which could
adversely affect NMC’s revenues. In addition, as discussed below, NMC has become aware that it is
the subject of qui tam or “whistleblower” actions with respect to some or all of the issues raised
by the government investigations, which whistleblower actions are filed under seal as a matter of
law in the first instance, thereby preventing disclosure to the Company and to the public except by
court order. In the process of unsealing federal whistleblower complaints, it is not unusual for
courts to allow the government to inform the Company and its counsel of a complaint prior to the
time the Company may be legally permitted to disclose it to the public. NMC may be the subject of
other “whistleblower” actions not known to the Company. Fresenius Medical Care and the Company have
guaranteed NMC’s obligations relating to or arising out of the
OIG Investigation and the qui tam
proceedings, and indemnified Grace Chemicals for any such liabilities.
An adverse determination with respect to any of the issues addressed by the subpoenas, or any
of the other issues that have been or may be identified by the government, could result in the
payment of substantial fines, penalties and forfeitures, the suspension of payments or exclusion
of the Company or one or more of its subsidiaries from the Medicare program and other federal
programs, and changes in billing and other practices that could adversely affect the Company’s
revenues. Any such result could have a material adverse effect on the Company’s business,
financial condition and results of operations.
OIG Investigation
In October 1995, NMC received five investigative subpoenas from the OIG. The subpoenas were
issued in connection with an investigation being conducted by the OIG, the U.S. Attorney for the
District of Massachusetts and others concerning possible violations of federal laws, including the
anti-kickback statutes and the False Claims Act. The subpoenas call for extensive document
production relating to various aspects of NMC’s business.
In connection with the OIG Investigation, the Company continues to receive additional
subpoenas directed to NMC or the Company to obtain supplemental
Exhibit A
Page 21
information and documents regarding the above-noted issues, or to clarify the scope of the
original subpoenas.
The Company is cooperating with the OIG Investigation in providing supplemental
information and documents. The Company believes that the government continues to review and
evaluate the voluminous information the Company has provided. As indicated above, the
government continues, from time to time, to seek supplementing and/or clarifying information
from the Company. The Company understands that the government has utilized a grand jury to
investigate these matters. The Company expects that this process will continue while the
government completes its evaluation of the issues.
The OIG Investigation covers the following areas: (a) NMC’s dialysis services business
(“Dialysis Services”), principally relating to its Medical Director contracts and compensation;
(b) NMC’s treatment of credit balances resulting from overpayments received under the Medicare,
Medicaid, CHAMPUS and other government and commercial payors, its billing for home dialysis
services, and its payment of supplemental medical insurance premiums on behalf of indigent
patients; (c) LifeChem’s laboratory business, including testing procedures, marketing, customer
relationships, competition, overpayments totaling approximately $4.9 million that were received
by LifeChem from the Medicare program with respect to laboratory services rendered between 1989
and 1993, a 1997 review of dialysis facilities’ standing orders, and the provision of discounts
on products from NMC’s products division, grants, equipment and entertainment to customers; and
(d) Homecare and, in particular, information concerning IDPN utilization, documentation of
claims and billing practices including various services, equipment and supplies and payments
made to third parties as compensation for administering IDPN therapy.
The government has indicated that the areas identified above are not exclusive, and that it
may pursue additional areas. As noted, the penalties applicable under the anti-kickback statutes,
the False Claims Act and other federal and state statutes and regulations applicable to NMC’s
business can be substantial. While NMC asserts that it is able to offer legal and/or factual
defenses with respect to many of the areas the government has identified, it is expected that the
government will assert that NMC has violated multiple statutory and regulatory provisions.
Additionally, qui tam actions alleging that NMC submitted false claims to the government have been
filed under seal by former or current NMC employees or other individuals who may have familiarity
with one or more of the issues under investigation. As noted, under the False Claims Act, any such
private plaintiff could pursue an action against NMC in the name of the U.S. at his or her own
expense if the government declines to do so.
Since October 1995 when the initial subpoenas were served NMC and the government have met
periodically to discuss issues in connection with the OIG Investigation, including theories of
liability. NMC and the government have been exploring the possibility of settling the matters
which are encompassed by the OIG Investigation and, as referenced below, have settled the
diagnostics investigation matter. There can be no assurance that any of the other matters
subject to the OIG Investigation will be settled. If, however, one or more of the matters
encompassed by the OIG Investigation is settled, it may result in NMC acknowledging that its
past
Exhibit A
Page 22
practices violated federal statutes, as well as NMC incurring substantial civil and criminal
financial penalties which could have a material adverse effect on the Company. If one or more of
these matters is not settled, the government may be expected to seek substantial civil and
criminal financial penalties and other sanctions including the suspension of payments by, and the
exclusion of NMC and its subsidiaries from, the Medicare program, Medicaid program and other
federal health care programs. See “Management’s Discussion and Analysis of Financial Condition and
Results of Operations — Contingencies.”
An adverse determination with respect to any of the issues addressed by the subpoenas, or
any of the other issues that have been or may be identified by the government, could result in
the payment of substantial fines, penalties and forfeitures, the suspension of payments or
exclusion of the Company or one or more of its subsidiaries from the Medicare program and other
federal programs, and changes in billing and other practices that could adversely affect the
Company’s revenues. Any such result could have a material adverse effect on the Company’s
business, financial condition and results of operations. Under the terms of the Merger, any
potential resulting monetary liability has been retained by NMC, and the Company has indemnified
Grace Chemicals against all potential liability arising from or relating to the OIG
Investigation. The Company has provided the U.S. government with a guarantee of payment of the
obligations, if any, arising from the OIG Investigation. In support of this guarantee, the
Company has delivered to the U.S. government a standby letter of credit in the amount of
$150
million.
Medical Director Compensation
The government is investigating whether Dialysis Services, compensation arrangements with its
Medical Directors constitute payments to induce referrals, which would be illegal under the
anti-kickback statutes, rather than payment for services rendered. Dialysis Services
compensated the substantial majority of its Medical
Directors on the basis of a percentage of the earnings of the dialysis center for which the
Medical Director was responsible from the inception of NMC’s predecessor in 1972 until January 1,
1995, the effective date of Xxxxx II. Under the arrangements in effect prior to January 1, 1995,
the compensation paid to Medical Directors was adjusted to include “add backs,” which represented
a portion of the profit earned by MPG on products purchased by the Medical Director’s facility
from MPG and (until January 1, 1992) a portion of the profit earned by LifeChem on laboratory
services provided to patients at the Medical Director’s facility. These adjustments were designed
to allocate a profit factor to each dialysis center relating to the profits that could have been
realized by the center if it had provided the items and services directly rather than through a
subsidiary of NMC. The percentage of profits paid to any specific Medical Director was reached
through negotiation, and was typically a provision of a multi-year consulting agreement.
To
comply with Xxxxx II if Designated Health Services are involved, Medical Director
compensation must not exceed fair market value and may not take into account the volume or value
of referrals or other business generated between the parties. Since January 1, 1995, Dialysis
Services has compensated its Medical Directors on a fixed
Exhibit A
Page 23
compensation arrangement intended to comply with the requirements of Xxxxx II. In renegotiating
its Medical Director compensation arrangements in connection with Xxxxx XX, Dialysis Services took
and continues to take account of the compensation levels paid to its Medical Directors in prior
years.
Certain government representatives have expressed the view in meetings with counsel for NMC
that arrangements where the Medical Director was or is paid amounts in excess of the “fair market
value” of the services rendered may evidence illegal payments to induce referrals, and that
hourly compensation is a relevant measure for evaluating the “fair market value” of the services.
Dialysis Services does not compensate its Medical Directors on an hourly basis and has asserted
to the government that hourly compensation is not a determinative measure of fair market value.
Although the Company believes that the compensation paid to its Medical Directors is generally
reflective of fair market value, there can be no assurances that the government will agree with
this position or that the Company ultimately will be able to defend its position successfully.
Because of the wide variation in local market factors and in the profit percentage contractually
negotiated between Dialysis Services and its Medical Directors prior to January 1, 1995, there is
a wide variation in the amounts that have been paid to Medical Directors.
As a result, the compensation that Dialysis Services has paid and is continuing to pay to a
material number of its Medical Directors could be viewed by the government as being in excess of
“fair market value,” both in absolute terms and in terms of hourly compensation. NMC has asserted
to the government that its compensation arrangements do not constitute illegal payments to induce
referrals. NMC has also asserted to the government that OIG auditors repeatedly reviewed Dialysis
Services’ compensation arrangements with its Medical Directors in connection with their audits of
the costs claimed by Dialysis Services; that the OIG stated in its audit reports that, with the
exception of certain technical issues, Dialysis Services had complied with applicable
Medicare laws and regulations pertaining to the ESRD program; and that Dialysis Services
reasonably relied on these audit reports in concluding that its program for compensating Medical
Directors was lawful. There has been no indication that the government will accept NMC’s
assertions concerning the legality of its arrangements generally or NMC’s assertion that it
reasonably relied on OIG audits, or that the government will not focus on specific arrangements
that DSD has made with one or more Medical Directors and assert that those specific arrangements
were or are unlawful.
The government is also investigating whether Dialysis Services’ profit sharing arrangements
with its Medical Directors influenced them to order unnecessary ancillary services and items. NMC
has asserted to the government that the rate of utilization of ancillary services and items by
its Medical Directors is reasonable and that it did not provide illegal inducements to Medical
Directors to order ancillary services and items.
Credit Balances
In the ordinary course of business, medical service providers like Dialysis Services receive
overpayments from Medicare intermediaries and other payors for
Exhibit A
Page 24
services that they provide to patients. Medicare intermediaries commonly direct such providers to
notify them of the overpayment and not remit such amounts to the intermediary by check or otherwise
unless specifically requested to do so. In 1992, HCFA adopted a regulation requiring certain
Medicare providers, including dialysis centers, to file a quarterly form listing unrecouped
overpayments with the Medicare intermediary responsible for reimbursing the provider. The first
such filing was required to be made as of June 30, 1992 for the period beginning with the initial
date that the provider participated in the Medicare program and ending on June 30, 1992.
The government is investigating whether DSD intentionally understated the Medicare credit
balance reflected on its books and records for the period ending June 30, 1992 by reversing
entries out of its credit balance account and taking overpayments into income in anticipation of
the institution of the new filing requirement. Dialysis Services policy was to notify Medicare
intermediaries in writing of overpayments upon receipt and to maintain unrecouped Medicare
overpayments as credit balances on the books and records of Dialysis Services for four years;
overpayments not recouped by Medicare within four years would be reversed from the credit balance
account and would be available to be taken into income. NMC asserts that Medicare overpayments
that have not been recouped by Medicare within four years are not subject to recovery under
applicable regulations and that its initial filing with the intermediaries disclosed the credit
balance on the books and records of Dialysis Services as shown in accordance with its policy, but
there can be no assurance that the government will accept NMC’s views. The government has inquired
whether other divisions including Homecare, LifeChem and DSI have appropriately treated Medicare
credit balances as well as credit balances of other payors.
The government is also investigating whether Dialysis Services failed to disclose
Medicare overpayments that resulted from Dialysis Services, obligation to rebill commercial payors
for amounts originally billed to Medicare under HCFA’s initial implementation of the OBRA 93
amendments to the secondary payor provisions of the Medicare Act. Dialysis Services experienced
delays in reporting a material amount of overpayments after the implementation of the OBRA 93
amendments. NMC asserts that most of these delays were the result of the substantial
administrative burdens placed on Dialysis Services as a consequence of the changing and
inconsistent instructions issued by HCFA with respect to the OBRA 93 amendments and were not
intentional. Substantially all overpayments resulting from the rebilling effort associated with
the OBRA 93 amendments have now been reported. Procedures are in place that are designed to ensure
that subsequent overpayments resulting from the OBRA 93 amendments will be reported on a timely
basis.
Supplemental Medical Insurance
Dialysis Services provided grants or loans for the payment of premiums for supplemental
medical insurance (under which Medicare Part B coverage is provided) on behalf of a small
percentage of its patients who are financially needy. The practice of providing loans or grants
for the payment of supplemental medical insurance premiums by NMC was one of the subjects of
review by the government as part of the OIG Investigation.
Exhibit A
Page 25
The Government, however, advised the Company orally that it is no longer pursuing this
issue. Furthermore, as a result of the passage of HIPAA, the Company terminated making such
payments on behalf of its patients. Instead, the Company, together with other representatives of
the industry, obtained an advisory opinion from the OIG, whereby, consistent with specified
conditions, the Company and other similarly situated providers may make contributions to a
non-profit organization that has volunteered to make these payments on behalf of indigent ESRD
patients, including patients of the Company. In addition, the government has indicated that it is
investigating the method by which NMC made Medigap payments on behalf of its indigent patients.
Overpayments for Home Dialysis Services
NMC acquired HIC, an in-center and home dialysis service provider, in 1993. At the time of
the acquisition, HIC was the subject of a claim by HCFA that HIC had received payments for home
dialysis services in excess of the Medicare reasonable charge for services rendered prior to
February 1, 1990. NMC settled the HCFA claim against HIC in 1994. The government is investigating
whether the settlement concerning the alleged overpayments made to HIC resolved all issues
relating to such alleged overpayments. The government is also investigating whether HDS received
payments similar to the payments that HIC received, and whether HDS improperly billed for home
dialysis services in excess of the monthly cost cap for services rendered on or after February 1,
1990. The government is investigating whether NMC was overpaid for services rendered. NMC asserts
that the xxxxxxxx by HDS were proper, but there can be no assurance that the government will
accept NMC’s view.
LifeChem
Overpayments. On September 22, 1995, LifeChem voluntarily disclosed certain billing problems
to the government that had resulted in LifeChem’s receipt of approximately $4.9 million in
overpayments from the Medicare program for laboratory services rendered between 1989 and 1993.
LifeChem asserts that most of these overpayments relate to errors caused by a change in LifeChem’s
computer systems and that the remainder of the overpayments were the result of the incorrect
practice of billing for a complete blood count with differential when only a complete blood count
was ordered and performed, and of the incorrect practice of billing for a complete blood count when
only a hemoglobin or hematocrit test was ordered. LifeChem asserts that the overpayments it
received were not caused by fraudulent activity, but there can be no assurance that the government
will accept LifeChem’s view.
LifeChem made these disclosures to the government as part of an application to be admitted
to a voluntary disclosure program begun by the government in mid-1995. At the time of the
disclosures, LifeChem tendered repayment to the government of the $4.9 million in overpayments.
After the OIG Investigation was announced, the government indicated that LifeChem had not been
accepted into its voluntary disclosure program. The government has deposited the $4.9 million
check with NMC’s approval. The matters
Exhibit A
Page 26
disclosed in LifeChem’s September 22, 1995 voluntary disclosure are a subject of the OIG
Investigation.
On
June 7, 1996, LifeChem voluntarily disclosed an additional billing problem to the
government that had resulted in LifeChem’s receipt of between $40,000 and $160,000 in overpayments
for laboratory services rendered in 1991. LifeChem advised the government that this overpayment
resulted from the submission for payment of a computer billing tape that had not been subjected to
a “billing rules” program designed to eliminate requests for payments for laboratory tests that are
included in the Composite Rate and that were not eligible for separate reimbursement. LifeChem also
advised the government that there may have been additional instances during the period from 1990 to
1992 when other overpayments were received as a result of the submission of computer billing tapes
containing similar errors and that it was in the process of determining whether such additional
overpayments were received. On June 21, 1996, LifeChem advised the government that the 1991 billing
problem disclosed on June 7, 1996 resulted in an overpayment of approximately $112,000. LifeChem
also advised the government that certain records suggested instances in July 1990 and August 31
through September 11, 1990, when billing tapes may have been processed without rules processing.
LifeChem continued its effort to determine whether any other overpayments occurred relating to the
“billing rules” problem and, in March 1997, advised the government that an additional overpayment
of approximately $260,000 was made by Medicare.
On April 6, 1999, LifeChem voluntarily disclosed an additional billing problem to
the government that resulted in LifeChem’s receipt of overpayments for laboratory
services rendered between 1994 and 1999. In 1994, as a result of the advice of a
billing
consultant, LifeChem began to bill for platelet testing performed in connection with
complete blood counts. This advice was confirmed by the consultant in 1997 as part of
a review performed by the consultant under the auspices of LifeChem’s then outside
counsel. In 1999, however, an internal inquiry resulted in a reexamination of this advice
and LifeChem determined that the prior advice was incorrect. As a result LifeChem voluntarily
disclosed and repaid the overpayment to the government in the amount of $8.6 million. LifeChem
also has notified the government of the disclosure. There can be no assurances that the government
will agree that LifeChem’s disclosure should not result in a sanction beyond repayment of the
overpayment amount.
Capitation for routine tests and panel design. In October 1994, the OIG issued a special
fraud alert in which it stated its view that the industry practice of offering to perform or
performing the routine tests covered by the Composite Rate at a price below fair market value,
coupled with an agreement by a dialysis center to refer all or most of its non-Composite Rate
tests to the laboratory, violates the anti-kickback statutes. In response to this alert, LifeChem
changed its practices with respect to testing covered by the Composite Rate to increase the
amount charged to both Dialysis Services and third-party dialysis centers and reduce the number
of tests provided for the fixed rate. The government is investigating LifeChem’s practices with
respect to these tests.
Benefits provided to dialysis centers and persons associated with dialysis centers. The
government is investigating whether Dialysis Services or any third-party
Exhibit A
Page 27
dialysis center or any person associated with any such center was provided with benefits in order
to induce them to use LifeChem services. Such benefits could include, for example, discounts on
products or supplies, the provision of computer equipment, the provision of money for the
purchase of computer equipment, the provision of research grants and the provision of
entertainment to customers. NMC has identified certain instances in which benefits were provided
to customers who purchased medical products from NMC Medical Products, Inc., NMC’s products
company, and used LifeChem’s laboratory services. The government asserts that the provision of
such benefits violates, among other things, the anti-kickback statutes. In December 1998, the
former Vice President of Sales responsible for NMC’s laboratory and products divisions plead
guilty to the payment of illegal kickbacks to obtain laboratory business for LifeChem. In
February 1999, the former President of NMC Medical Products, Inc., was indicted by the government
for the payment of these same and/or similar kickbacks.
Business and testing practices. As noted above, the government has identified a
number of specific categories of documents that it is requiring NMC to produce in
connection with LifeChem business and testing practices. In addition to documents
relating to the areas discussed above, the government has also required LifeChem to
produce documents relating to the equipment and systems used by LifeChem in
performing and billing for clinical laboratory blood tests, the design of the test panels
offered and requisition forms used by LifeChem, the utilization rate for certain tests
performed by LifeChem, recommendations concerning diagnostic codes to be used in
ordering tests for patients with given illnesses or conditions, Internal and external audits
and investigations relating to LifeChem’s billing and testing. Subsequently, the
government served an investigative subpoena for documents concerning the Company’s
1997 review of dialysis facilities standing orders, and responsive documents were
provided. The government has served investigative subpoenas requiring NMC to update
its production on the above issues and to produce contract files for twenty-three
identified dialysis clinic customers. The government is investigating each of these
areas, and asserts that LifeChem and/or NMC have violated the False Claims Act and/or the
Anti-Kickback Statute through the test ordering, paneling, requisitioning, utilization, coding,
billing and auditing practices described above. In June 1999, a former Vice President of
Marketing of NMC Medical Products, Inc. plead guilty to a charge of conspiracy to defraud
Medicare in connection with the marketing of certain hepatitis tests.
IDPN
Administration kits. As discussed above, one of the activities of SRM is to provide IDPN
therapy to dialysis patients at both NMC-owned facilities and at facilities owned by other
providers. IDPN therapy was provided by Homecare prior to its divestiture. IDPN therapy is
typically provided to the patient 12-13 times per month during dialysis treatment. Bills are
submitted to Medicare on a monthly basis and include separate claims for reimbursement for
supplies, including, among other things, nutritional solutions, administration kits and infusion
pumps. In February 1991, the Medicare carrier responsible for processing Homecare’s IDPN claims
issued a Medicare advisory to all parenteral and enteral nutrition suppliers announcing a coding
change for reimbursement of administration kits provided in connection with IDPN therapy for
Exhibit A
Page 28
claims filed for items provided on or after April 1, 1991. The Medicare allowance for
administration kits during this period was approximately $625 per month per patient. The advisory
stated that IDPN providers were to indicate the “total number of actual days” when administration
kits were “used,” instead of indicating that a one-month supply of administration kits had been
provided. In response, Homecare billed for administration kits on the basis of the number of days
that the patient was on an IDPN treatment program during the billing period, which typically
represented the entire month, as opposed to the number of days the treatment was actually
administered. During the period from April 1991 to June 1992, Homecare had an average of
approximately 1,200 IDPN patients on service.
In May 1992, the carrier issued another Medicare advisory to all PEN suppliers in which it
stated that it had come to the carrier’s attention that some IDPN suppliers had not been prorating
their billing for administration kits used by IDPN patients and that providers should not bill for
administration kits on the basis of the number of days that the patient was on an IDPN treatment
program during the billing period. The advisory stated further that the carrier would be
conducting “a special study to determine whether or not overpayments have occurred as a result of
incorrect billing” and that “if overpayments have resulted, providers that have incorrectly
billed” would “be contacted so that refunds can be recovered.” Homecare revised its billing
practices in response to this advisory for claims filed for items provided on or after July 1,
1992. Homecare was not asked to refund any amounts relating to its xxxxxxxx for administration
kits following the issuance of the second advisory.
The government asserts that NMC submitted false claims for administration kits during the
period from 1998 to June 30, 1996, and that Homecare’s billing for administration kits during
this period violated, among other things, the False Claims Act.
Infusion Pumps and IV Poles. During the time period covered by the subpoenas, Medicare
regulations permitted IDPN[ providers to bill Medicare for the
infusion pumps and, until 1992,
for IV poles provided to IDPN patients in connection with the administration of IDPN treatments.
These regulations do not expressly specify that a particular pump and IV pole be dedicated to a
specific patient, and NMC asserts that these regulations permitted Homecare to bill Medicare for
an infusion pump and IV pole so long as the patient was infused using a pump and IV pole. Despite
the absence of an express regulatory specification, Homecare developed a policy to deliver to a
dialysis center a dedicated infusion pump and IV pole for each patient, although the Company
cannot represent that Homecare followed this policy in every instance. The government is
investigating the propriety of Homecare’s xxxxxxxx for infusion pumps and IV poles and asserts
that Homecare’s xxxxxxxx violate the False Claims Act.
As noted above, under the new policies published by HCFA with respect to IDPN therapy, the
Company has not been able to bill for infusion pumps after July 1, 1996. The government
discontinued reimbursement for IV poles in 1992.
“Hang fees” and other payments. IDPN therapy is typically provided to the patient during
dialysis by personnel employed by the dialysis center treating the patient with supplies
provided and billed to Medicare by Homecare in accordance with the
Exhibit A
Page 29
Medicare parenteral nutrition supplier rules. In order to compensate dialysis centers for the
costs incurred in administering IDPN therapy and monitoring the patient during therapy, Homecare
followed the practice common in the industry of paying a “hang fee” to the center. Dialysis
centers are responsible for reporting such fees to HCFA on their cost reports. For Dialysis
Services dialysis centers, the fee was $30 per administration, based upon internal Dialysis
Services cost calculations. For third-party dialysis centers, the fee was negotiated with each
center, typically pursuant to a written contract, and ranged from $15 to $65 per administration.
The Company has identified instances in which other payments and amounts beyond that reflected in
a contract were paid to these third-party centers. The Company has stopped paying “hang fees” to
both Dialysis Services and third-party facilities.
In
July 1993, the OIG issued a management advisory alert to HCFA in which it stated that
“hang fees” and other payments made by suppliers of IDPN to dialysis centers “appear to be
illegal as well as unreasonably high.” The government is investigating the nature and extent of
the “hang fees” and other payments made by Homecare as well as payments by Homecare to physicians
whose patients have received IDPN therapy. The government asserts that the payments by Homecare
to dialysis centers violate, among other things, the anti-kickback statutes.
Utilization of IDPN. Since 1984, when HCFA determined that Medicare should cover IDPN and
other parenteral nutrition therapies, the Company has been an industry leader in identifying
situations in which IDPN therapy is beneficial to ESRD patients. It is the policy of the Company
to seek Medicare reimbursement for IDPN therapy only when it is prescribed by a patient’s treating
physician and when it believes that the circumstances satisfy the requirements published by HCFA
and its carrier agents. Prior to 1994, HCFA and its carriers approved for payment more than 90% of
the IDPN claims submitted by Homecare. After 1993, the rate of approval for Medicare reimbursement
for IDPN claims submitted by Homecare for new patients, and by the infusion industry in general,
fell to approximately 9%. The Company contends that the reduction in rates of approval occurred
because HCFA and its carriers implemented an unauthorized change in coverage policy without giving
notice to providers. While NMC continued to offer IDPN to patients pursuant to the prescription of
the patients’ treating physicians and to submit claims for Medicare reimbursement when it believed
the requirements stated in HCFA’s published regulations were satisfied, other providers responded
to the drop in the approval rate for new Medicare IDPN patients by
abandoning the Medicare IDPN,
business, cutting back on the number of Medicare patients to whom they provide IDPN, or declining
to add new Medicare patients. Beginning in 1994 the number of patients to whom NMC provided IDPN
increased as a result.
The government is investigating the utilization rate of IDPN therapy among the NMC
patients, whether the NMC submitted IDPN claims to Medicare for patients who were not eligible
for coverage, and whether documentation of eligibility was adequate. NMC asserts that the
utilization rate of IDPN therapy among its dialysis patients, which, in 1995, averaged less than
3.5%, is the result of the factors discussed above and that it is the policy of Homecare to seek
Medicare reimbursement for IDPN therapy prescribed by the patients’ treating physician in
accordance with the requirements published by HCFA and its carrier agents. There can be no
assurance that the government will
Exhibit A
Page 30
accept the NMC’s view. The government asserts that Homecare submitted IDPN claims for individuals
who were not eligible for coverage and/or with inadequate documentation of eligibility.
The Company believes that it has presented to the government substantial defenses which
support NMC’s interpretation of coverage rules of IDPN as HCFA and its carriers published and
explained them, and which demonstrated that HCFA and its carriers improperly implemented
unpublished, more restrictive criteria after 1993. Nevertheless, the government is expected to
assert in the OIG Investigation that, on a widespread basis, NMC submitted and received payments on
claims for IDPN to Medicare for patients who were not eligible for coverage, and for whom the
documentation of eligibility was inadequate.
In addition, the government asserts that, in a substantial number of cases, documentation of
eligibility was false or inaccurate. With respect to some claims, the Company has determined that
false or inaccurate documentation was submitted, deliberately or otherwise. The government
continues to investigate the IDPN claims.
Qui Tam Actions
The Company and NMC is aware that certain qui tam actions have been filed in various
jurisdictions. Each of these actions is under seal and in each action, pursuant to court order the
seal has been modified to permit the Company, NMC and other affiliated defendants to disclose the
complaint to any relevant investors, financial institutions and/or underwriters, their successors
and assigns and their respective counsel and to disclose the allegations in the complaints in
their respective U.S. Securities and Exchange Commission (the “SEC” or the Commission”) and New
York Stock Exchange (“NYSE”) periodically required filings.
A qui tam action was filed in the United States District Court for the Southern District of
Florida in June 1994, amended on July 8, 1996 and disclosed to the Company on July 10, 1996. It
alleges, among other things, that Grace Chemicals and NMC violated the False Claims Act in
connection with certain billing practices regarding IDPN and the administration of EPO and that as
a result of this allegedly wrongful conduct, the United States suffered actual damages in excess
of $200 million. The Amended Complaint also seeks the imposition of a constructive trust on the
proceeds of the NMC dividend to Grace Chemicals for the benefit of the United States on the ground
that the Merger constitutes a fraudulent conveyance that will render NMC unable to satisfy the
claims asserted in the Amended Complaint.
A qui tam action was filed in the United States District Court for the Southern District of
Florida in December 1994 and disclosed to the Company on
April 16, 1999. It alleges, among other
things, that NMC violated the False Claims Act in connection with certain billing practices
regarding IDPN and the cost relating thereto. The second qui tam was filed by the same relator
which filed the first qui tam and covers the same services covered by
the first qui tam complaint.
Exhibit A
Page 31
A qui tam action was filed in the United States District Court for the Middle District of
Florida in 1995 and disclosed to the Company on or before November 7, 1996. It alleges, among other
things, that NMC and certain NMC subsidiaries violated the False Claims Act in connection with the
alleged retention of over-payments made under the Medicare program, the alleged submission of
claims in violation of applicable cost caps and the payment of supplemental Medicare insurance
premiums as an alleged inducement to patients to obtain dialysis products and services from NMC.
The complaint alleges that as a result of this allegedly wrongful conduct, the United States
suffered damages in excess of $10 million including applicable fines.
A qui tam action was filed in the United States District Court for the Eastern District of
Pennsylvania in May 1995 and was disclosed to the Company in August 1997. It alleges, among other
things, that Biotrax violated the False Claims Act in connection with its submission of claims to
the Medicare program for diagnostic tests and induced overutilization of such tests in the medical
community through improper marketing practices also in violation of the False Claims Act. This qui
tam action was dismissed as part of the diagnostics civil investigation settlement reached in May
1999. See “Part II, Item 1, Legal Proceedings — Commitments and Contingencies — Diagnostics
Subpoena.”
A qui tam action was filed in the United States District Court for the Eastern District of
Pennsylvania in August 1996 and was disclosed to the Company in August 1997. It alleges, among
other things, that Biotrax and NMC Diagnostic Services induced overutilization of diagnostic tests
by several named and unnamed physician defendants in the local medical community, through improper
marketing practices and fee arrangements, in violation of the False Claims Act. This qui tam
action was dismissed as part of the diagnostics civil investigation settlement reached in May
1999. See “Part II, Item 1. Legal Proceedings —
Commitments and Contingencies — Diagnostics Subpoena.”
A qui tam action was filed in the United States District Court for the Eastem District of
Pennsylvania in November 1996 and was disclosed to the Company in August 1997. It alleges, among
other things, that NMC, DSI and Biotrax violated the False Claims Act in connection with the
submission of claims to the Medicare program by improperly upcoding and otherwise billing for
various diagnostic tests. This qui tam action was dismissed as part of the diagnostics civil
investigation settlement reached in May 1999. See “Part II, Item 1, Legal Proceedings —
Commitments and Contingencies — Diagnostics Subpoena.”
A qui tam action was filed in the United States District Court for the District of Delaware
in January 1997 and was disclosed to the Company in September 1997. It alleges, among other
things, that NMC and Biotrax violated the False Claims Act in connection with the submission of
claims to the Medicare program for diagnostic tests, and induced
overutilization of such tests
through improper marketing practices which provided impermissible incentives to health care
providers to order these tests. This qui tam action was dismissed as part of the diagnostics
civil investigation settlement reached in May 1999. See “Part II, Item 1, Legal Proceedings —
Commitments and Contingencies — Diagnostics Subpoena.”
Exhibit A
Page 32
A qui tam action was filed in the United States District Court for the District of New Jersey
in February 1997 and was disclosed to the Company in September 1997. It alleges, among other
things, that DSI and NMC violated the False Claims Act in connection with the submission of claims
to the Medicare program for reimbursement for diagnostic tests, by causing unnamed physicians to
overutilize these tests though a variety of fee arrangements and other impermissible inducements.
This qui tam action dismissed as part of the diagnostics civil investigation settlement reached in
May 1999. See “Part II, Item 1, Legal Proceedings — Commitments and Contingencies —Diagnostics
Subpoena.”
A qui tam was filed in the United States District Court for the District of Massachusetts in
1994 and was disclosed to the Company in February 1999. It alleges among other things that NMC
violated the False Claims Act and the Anti-Kickback Statute in connection with certain billing and
documentation practices regarding IDPN therapy, home oxygen therapy and certain medical xxxxxxxx
in NMC’s Chicago office.
Each of the qui tam complaints asserts that as a result of the allegedly wrongful conduct,
the United States suffered damages and that the defendants are liable to the United States for
three times the amount of the alleged damages plus civil penalties of up to $10,000 per false
claim. An adverse result in any of the qui tam actions could have a material adverse effect on the
Company’s business, financial condition or results of operations.
OIG Agreements
As a result of discussions with representatives of the United States in connection with the
OIG Investigation, certain agreements (the “OIG Agreements”) have been entered into to
guarantee the payment of any obligations of NMC to the United States (an “Obligation”) relating
to or arising out of the OIG Investigation and the qui tam action filed in the Southern District
of Florida (the “Government Claims”). For the purposes of the OIG Agreements, an Obligation is (a)
a liability or obligation of NMC to the United States in respect of a Government Claim pursuant to
a court order (i) which is final and nonappealable or (ii) the enforcement of which has not been
stayed pending appeal or (b) a liability or obligation agreed to be an Obligation in a settlement
agreement executed by Fresenius Medical Care, the Company or NMC, on the one hand, and the United
States, on the other hand. As stated elsewhere herein, the outcome of the OIG Investigation cannot
be predicted.
Pursuant
to the OIG Agreements, upon consummation of the Merger, Fresenius Medical Care, the
Company and NMC provided the United States with a joint and several unconditional guarantee of
payment when due of all Obligations (the “Primary Guarantee”). As credit support for this
guarantee, NMC delivered an irrevocable standby letter of credit in the amount of $150 million.
The United States will return such letter of credit (or any renewal or replacement) for
cancellation when all Obligations have been paid in full or it is determined that NMC has no
liability in respect of the Government Claims. Under the terms of the Merger, any potential
resulting monetary
Exhibit A
Page 33
liability has been retained by NMC, and the Company has indemnified Grace Chemicals against all
potential liability arising from or relating to the OIG Investigation.
FMC and the Company and the United States state in the OIG Agreements that they will negotiate
in good faith to attempt to arrive at a consensual resolution of the Government Claims and, in the
context of such negotiations, will negotiate in good faith as to the need for any restructuring of
the payment of any Obligations arising under such resolution, taking into account the ability of
FMC and the Company to pay the Obligations. The OIG Agreements state that the foregoing statements
shall not be construed to obligate any person to enter into any settlement of the Government Claims
or to agree to a structured settlement. Moreover, the OIG Agreements state that the statements
described in the first sentence of this paragraph are precatory and statements of intent only and
that (a) compliance by the United States with such provisions is not a condition or defense to the
obligations of FMC and the Company under the OIG Agreements and (b) breach of such provisions by
the United States cannot and will not be raised by FMC and the Company to excuse performance under
the OIG Agreements. Neither the entering into of the OIG Agreements nor the providing of the
Primary Guarantee and the $150 million letter of credit is an admission of liability by any party
with respect to the OIG Investigation, nor does it indicate the liability which may result
therefrom.
The foregoing describes the material terms of the OIG Agreements, copies of which were
previously filed with the Commission and copies of which may be examined without charge at the
public reference facilities maintained by the Commission at Room 0000, 000 Xxxxx Xxxxxx, X.X.
Washington, D.C. 20549, and at the Regional Offices of the Commission located at Xxxxx 0000,
Xxxxxxxx Xxxxxx, 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-2551 and Room 1300, 0 Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Copies of such material will also be made available by mail
from the Public Reference Branch of the commission at 000 Xxxxx
Xxxxxx, X.X. Washington, D.C. 20549, at
prescribed rates. The foregoing description does not purport to be completes and is qualified
in its entirety by reference to such agreements.
Diagnostics Subpoena
In October 1996, Biotrax International, Inc. (“Biotrax”) and NMC Diagnostics, Inc., (“DSl”)
both of which are subsidiaries of NMC, received a civil investigative subpoena from the OIG
concerning the possible submission of false or improper claims to, and their payment by, the
Medicare program. In May, 1999 the Company and the government entered into a settlement agreement
pursuant to which, among other things, the government has agreed to release the Company with
respect to this matter in exchange for a payment of approximately $16.8 million from the Company.
District of New Jersey Investigation
NMC has received multiple subpoenas from a federal grand jury in the District of New Jersey
investigating, among other things, whether NMC sold defective products, the manner in which NMC
handled customer complaints and certain matters relating to the development of a new dialyzer
product line NMC is cooperating with this
Exhibit A
Page 34
investigation
and has provided the grand jury with extensive documents. In February, 1996, NMC
received a letter from the U.S. Attorney for the District of New Jersey indicating that it is the
target of a federal grand jury investigation into possible violations of criminal law in connection
with its efforts to persuade the FDA to lift a January 1991 import hold issued with respect to
NMC’s Dublin, Ireland manufacturing facility. In June 1996, NMC received a letter from the U.S.
Attorney for the District of New Jersey indicating that the U.S. Attorney had declined to prosecute
NMC with respect to a submission related to NMC’s effort to lift the import hold. The letter added
that NMC remains a subject of a federal grand jury’s investigation into other matters. NMC has
produced documents in response to a June 1996 subpoena from the federal grand jury requesting
certain documents in connection with NMC’s imports of the FOCUS(R) dialyzer from January 1991 to
November 1995. The government investigators and the Company have narrowed the issues with respect
to which the government has previously expressed concerns and are continuing discussions in order
to resolve this investigation. However, the outcome and impact, if any, of these discussions and
potential resolution on the Company’s business, financial condition or results of operations cannot
be predicted at this time.
Exhibit A
Page 35
Commercial Insurer Litigation
In 1997, the Company, NMC, and certain named NMC subsidiaries, were served with a civil
complaint filed by Aetna Life Insurance Company in the U.S. District Court for the Southern
District of New York (Aetna Life Insurance Company v. National
Medical Care, Inc. et al,
97-Civ-9310). In April 1999, Aetna amended its complaint to include its affiliate, Aetna U.S.
Healthcare, Inc., as an additional plaintiff, and to make certain other limited changes in its
pleading. Based in large part on information contained in prior securities filings, the lawsuit
alleges inappropriate billing practices for nutritional therapy, diagnostic and clinical
laboratory tests and misrepresentations. The amended complaint seeks unspecified damages and
costs. This matter is at a relatively early stage in the litigation process, with substantial
discovery just beginning, and its outcome and impact on the Company cannot be predicted at this
time. However, the Company, NMC and its subsidiaries believe that they have substantial defenses
to the claims asserted, and intend to continue to vigorously defend the lawsuit. Other private
payors have contacted the Company and may assert that NMC received excess payments and similarly,
may join the lawsuit and seek reimbursement and other damages from NMC. An adverse result could
have a material adverse effect on the Company’s business, financial condition or results of
operations.
In May 1999, the Company filed counter-claims against Aetna Life Insurance Company and
Aetna U.S. Healthcare, Inc. based on inappropriate claim denials and delays in claim payments.
The Company is also investigating similar counter-claims against two other private payors which
have contacted the Company.
OBRA 93
OBRA 93 affected the payment of benefits under Medicare and employer health
plans for certain eligible ESRD patients. In July 1994, HCFA issued an instruction to Medicare
claims processors to the effect that Medicare benefits for the patients affected by OBRA 93 would
be subject to a new 18-month “coordination of benefits” period. This instruction had a positive
impact on NMC’s dialysis revenues because, during the 18-month coordination of benefits period,
patients’ employer health plans were responsible for payment, which was generally at rates higher
than that provided under Medicare.
In April 1995, HCFA issued a new instruction, reversing its original instruction in a
manner that would substantially diminish the positive effect of the original instruction on
NMC’s dialysis business. HCFA further proposed that its new instruction be effective retroactive
to August 1993, the effective date of OBRA 93.
NMC ceased to recognize the incremental revenue realized under the original Program
Memorandum as of July 1, 1995, but it continued to bill employer health plans as primary payors
for patients affected by OBRA 93 through December 31, 1995. As of January 1, 1996, NMC commenced
billing Medicare as primary payor for dual eligible ESRD patients affected by OBRA 93, and then
began to rebill in compliance with the revised policy for services rendered between April 24 and
December 31,1995.
Exhibit A
Page 36
On May 5, 1995, NMC filed a complaint in the U.S. District Court for the
District of Columbia (National Medical Care, Inc. and Bio-Medical Applications of
Colorado, Inc. d/b/a Northern Colorado Kidney Center v. Shalala, C.A. No. 95-0860
(WBB)) seeking to preclude HCFA from retroactively enforcing its April 24, 1995
implementation of the OBRA 93 provisions relating to the coordination of benefits
for dual eligible ESRD patients. On May 9, 1995, NMC moved for a preliminary
injunction to preclude HCFA from enforcing its new policy retroactively, that is,
to xxxxxxxx for services provided between August 10, 1993 and April 23, 1995. On
June 6, 1995, the court granted NMC’s request for a preliminary injunction and in
December of 1996, NMC moved for partial summary judgment seeking a declaration
from the Court that HCFA’s retroactive application of the April 1995 rule was
legally invalid. HCFA cross-moved for summary judgment on the grounds that the
April 1995 rule was validly applied prospectively. In January 1998, the court
granted NMC’s motion for partial summary judgment and entered a declaratory
judgment in favor of NMC, holding HCFA’s retroactive application of the April 1995
rule legally invalid, and based on its finding, the Court also permanently
enjoined HCFA from enforcing and applying the April 1995 rule retroactively
against NMC. The Court took no action on HCFA’s motion for summary judgment
pending completion of the outstanding discovery. On October 5, 1998 NMC filed it’s
own motion for summary judgment requesting that the Court declare HCFA’s
prospective application of the April 1995 rule invalid and permanently enjoin HCFA
from prospectively enforcing and applying the April 1995 rule. The Court has not
yet ruled on the parties’ motions. HCFA elected not to appeal from the Court’s
June 1995 and January 1998 orders. HCFA may, however, appeal all rulings at the
conclusion of the litigation. If HCFA should successfully appeal so that the
revised interpretation would be applied retroactively NMC may be required to
refund the payments received from employer health plans for services provided
after August 10, 1993 under HCFA’s original implementation, and to re-bill
Medicare for the same services, which would result in a net loss to NMC of
approximately $120 Million attributable to all periods prior to December 31,1995.
Also, in such event, the Company’s business, financial position and results of
operations would be materially adversely affected.
IDPN Coverage Issues
SRM administers IDPN therapy to chronic dialysis patients who suffer from
severe gastrointestinal malfunctions. IDPN therapy was provided by Homecare prior
to its divestiture. After 1993, Medicare claims processors sharply reduced the
number of IDPN claims approved for payment as compared to prior periods. NMC
believes that the reduction in IDPN claims represented an unauthorized policy
coverage change. Accordingly, NMC and other IDPN providers pursued various
administrative and legal remedies, including administrative appeals, to address
this reduction.
In November 1995, NMC filed a complaint in the U.S. District Court for the
Middle District of Pennsylvania seeking a declaratory judgment and injunctive
relief to prevent the implementation of this policy coverage change. (National
Medical Care, Inc. v. Shalala, 3:CV-95-1922 (RPC)). Subsequently, the District
Court affirmed a prior report of the magistrate judge dismissing NMC’s complaint,
without considering any substantive claims, on the grounds that the underlying
cause of action should be
Exhibit A
Page 37
submitted fully to the administrative review processes available under the
Medicare Act. NMC decided not to appeal the Court’s decision, but rather,
to pursue the claims through the available administrative processes.
NMC was successful in pursuing these claims through the administrative
process, receiving favorable decisions from Administrative Law Judges in
more than 80% of its cases. In early 1998, a group of claims which had been
ruled on favorably were remanded by the Medicare Appeals Council to a
single Administrative Law Judge (the “ALJ”) with extensive instructions
concerning the review of these decisions. A hearing was scheduled on the
remanded claims to take place in July, but later postponed until October
1998.
Prior to the July hearing date, the United States Attorney for the
District of Massachusetts requested that the hearing be stayed pending
resolution of the OIG Investigation, on the basis that proceeding could
adversely effect the government’s investigation as well as the government’s
efforts to confirm it belief that these claims are false. Prior to the ALJ
issuing a decision on the stay request, the U.S. Attorney’s Office requested
that NMC agree to a stay in the proceedings in order to achieve a potential
resolution of the IDPN claims subject to the OIG Investigation as well as
those which are subject to the administrative appeals process. NMC agreed to
this request, and together with the U.S. Attorney’s Office requested a stay.
The ALJ agreed to this request in order to allow the parties the opportunity
to resolve both the IDPN claims which are the subject of the OIG
Investigation and the IDPN claims which are the subject of the
administrative proceedings. In March 1999 negotiations between NMC and the
U.S. Attorney’s Office failed to progress and NMC requested that the stay be
lifted. The ALJ agreed to NMC’s request and on April 19, 1999 the ALJ
hearing began. The hearing process is expected to proceed for several
months. At the same time, NMC and the U.S. Attorney’s Office are continuing
to discuss potential settlement of both the claims relating to the OIG investigation and the claims which are subject to
administrative appeals. At this time, it is not possible to determine whether NMC and
the government will be able to resolve issues surrounding the IDPN claims.
Further proceedings on other administrative appeals related to unpaid
claims remain stayed.
Although NMC management believes that those unpaid IDPN claims were
consistent with published Medicare coverage guidelines and ultimately will
be approved for payment, there can be no assurance that the claims on
appeal will be approved for payment in full or, to the extent approved,
collected in full. Such claims represent substantial accounts receivable of
NMC, amounting to approximately $150 million as of June 30, 1999.
If NMC is unable to collect its IDPN receivable, either through the
administrative appeal process or through negotiation, or if IDPN coverage
is reduced or eliminated, depending on the amount of the receivable that
is not collected and/or the nature of the coverage change, NMC’s business,
financial condition and results of operations could be materially
adversely affected. NMC’s IDPN receivables are included in the net assets
of the Company’s discontinued operations. However, these receivables have
not been sold and will remain classified as discontinued operations until
they have been
Exhibit A
Page 38
settled. See Notes to Consolidated Financial Statements, Note 4 — “Discontinued
Operations.”
Administrative Appeals
The Company regularly pursues various administrative appeals relating to reimbursement
issues in connection with its dialysis facilities. One such appeal consists of a challenge
to the Medicare regulation which capped reimbursement for the bad debts incurred by
dialysis facilities. In 1998, the United States Court of Appeals for the District of
Columbia ruled in favor of the Company in connection with the bad debt issue, holding that
the Secretary of Health & Human Services had not adequately justified the bad debt
regulation, and ruling that the government’s order adopting the rule was arbitrary and
capricious. The Court of Appeals remanded the matter to the Secretary to provide a more
adequate explanation of the bad debt cap or to abandon it. Subsequently, the Court modified
its holding to continue the bad debt regulation in effect pending remand. The Company is
continuing settlement discussions with the government in an attempt to recover
reimbursement for disallowed bad debt expenses. The Company cannot predict the outcome of
these discussions.
Spectra Corporate Integrity Agreement
Spectra was acquired by the Company in June 1997. Prior to Spectra’s acquisition by the
Company, Xxxxxxx settled an investigation by the government and entered into a Corporate Integrity
Agreement (the “Agreement”). In February 1999 the government advised Spectra that it may be in
breach of the Agreement and on March 15, 1999 issued a subpoena to Spectra requesting certain
documents related to the Agreement. Spectra has complied with the subpoena and is currently
working with the government to determine if any corrective action is necessary. While there can be
no assurances, the Company does not believe the outcome of this matter will have a material adverse
effect on the company.
Other Litigation and Potential Exposures
In recent years, physicians, hospitals and other participants in the health care
industry have become subject to an increasing number of lawsuits alleging professional
negligence, malpractice, product liability, workers’ compensation or related claims, many
of which involve large claims and significant defense costs. The Company and NMC and their
subsidiaries have been, and the Company can be expected to continue from time to time to
be, subject to such suits due to the nature of the Company’s business. Although the
Company maintains insurance at a level which it believes to be prudent, there can be no
assurance that the coverage limits will be adequate or that all asserted claims will be
covered by insurance. In addition, there can be no assurance that liability insurance will
continue to be available at acceptable costs. A successful claim against the Company or
any of its subsidiaries in excess of insurance coverage could have a material adverse
effect upon the Company and the results of its operations. Any claims, regardless of their
merit or eventual outcome, also may have a material adverse effect on the reputation and
business of the Company. The Company, NMC and their subsidiaries operate a large number
and wide variety of facilities throughout the U.S. in
Exhibit A
Page 39
such a decentralized system it is often difficult to maintain the desired level of oversight and
control over the thousands of individuals employed by many affiliate companies. The Company relies
upon its management structure, regulatory and legal resources, and the effective operation of its
compliance program to direct, manage and monitor the activities of these employees. However, on
occasion, the Company, NMC and their subsidiaries have identified instances where employees,
deliberately or inadvertently, have submitted inadequate or false xxxxxxxx while employed by an
affiliated company. The illegal actions of such persons may subject NMC to liability under the
False Claims Act, among other laws, and the Company cannot predict whether such law enforcement
authorities may use such information to initiate further investigations of the business practices
disclosed or any other business activities of the Company. In addition, the Company asserts claims
and suits arising in the ordinary course of business, the ultimate resolution of which would not,
in the opinion of the Company, have a material adverse effect on its financial condition.
Exhibit A
Page 40
EXHIBIT L
to
FOURTH AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
FORMS OF SECRETARY’S CERTIFICATE
Certificate of Secretary
I, the undersigned, being the Secretary of NMC Funding Corporation, a Delaware corporation
(the “Company”), DO HEREBY CERTIFY that:
The person named below has been duly appointed, is duly qualified as and is on the date hereof an
officer of the Company, and the signature below set opposite his name is his genuine signature.
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Xxxx Xxxxxxx
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Treasurer
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/s/ Xxxx Xxxxxxx |
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Attached hereto as Exhibit A is a true and complete copy of the Company’s
Certificate/Articles of Incorporation, or its equivalent, as filed in the Office of the
Secretary of State, or its equivalent, of the State of incorporation, together with all
amendments thereto adopted through the date hereof.
Attached hereto as Exhibit B is a true and complete copy of the Company’s by-laws as in effect on
the date hereof, together with all amendments thereto adopted through the date hereof.
Attached hereto as Exhibit C are true and correct copies of the resolutions duly adopted by the
Company’s board of directors on October 16, 2008 by written consent, which resolutions have not
been revoked, modified, amended, or rescinded and are in full force and effect as of the date
hereof. Except as attached hereto as Exhibit C, no resolutions have been adopted by the Company’s
board of directors which deal with matters set forth in Exhibit C.
IN WITNESS WHEREOF, I have hereunto set my hand this 16th day of October, 2008.
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/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx |
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Secretary |
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PAGE 1
State of Delaware
Office of the Secretary of State
I, XXXXXX X. XXXXX, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE
ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF INCORPORATION OF “NMC FUNDING
CORPORATION”, FILED IN THIS OFFICE ON THE FOURTEENTH DAY OF AUGUST, A.D. 1997, AT 12:15 O’CLOCK
P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF
DEEDS FOR RECORDING.
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/s/ Xxxxxx X. Xxxxx |
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Xxxxxx X. Xxxxx, Secretary of State |
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2785199 8100
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AUTHENTICATION:
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8606253 |
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971272145
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DATE:
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08-14-97 |
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CERTIFICATE OF INCORPORATION
of
NMC FUNDING CORPORATION
FIRST: This corporation’s name is “NMC Funding Corporation” (hereinafter called
the“Corporation”).
SECOND: The address of the Corporation’s registered office in the State of Delaware is 0000
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000. The name of the Corporation’s
registered agent at such address is The Corporation Trust Company
THIRD: The nature of the business or purposes to be conducted or promoted by the
Corporation are:
(a) to enter into, perform and comply with a receivables purchase agreement (the
“Purchase Agreement”) with National Medical Care, Inc. (“Seller”), pursuant to which
agreement the Corporation may, among other things, purchase from Seller some or all of
its accounts receivable and related security interests and rights (the “Receivables”);
(b) to own, hold and service (or arrange for an agent to service) the Receivables;
(c) to fund the Corporation’s purchases of Receivables by selling interests in the
Receivables to, or borrowing from, one or more trusts, banks, financial institutions,
commercial paper issuers, insurance companies or similar entities (collectively,
“Financial Entities”), and, in connection with any such financing arrangements (whether
a
sale or a borrowing, a “Financial Transaction”), to sell, or pledge as security, all or
substantially all of the Corporation’s assets, including all of its right, title and
interest to
and in the Receivables;
(d) to invest the proceeds derived from the sale or ownership of the Receivables as
determined by the Corporation’s board of directors (the “Board”); and
(e) to engage in any lawful act or activity and to exercise any powers permitted to
corporations organized under the General Corporation Law of the State of Delaware
(“Delaware General Corporation Law”) that, in either case, are incidental to and
necessary
or convenient for the accomplishment of the above-mentioned purposes.
FOURTH: The total number of shares of all classes of capital stock that the
Corporation is authorized to issue is One Thousand (1,000) shares, all of which shares
shall be common stock, par value $.10 per share (“Common Stock”). All Common Stock will be
identical and will entitle the holders thereof to the same rights and privileges.
a. Voting Rights. Except as set forth herein or as otherwise required by law, all
outstanding Common Stock shall be entitled to vote on each matter on which the Corporation’s
stockholders shall be entitled to vote, and each holder of Common Stock shall be entitled to
one
vote for each share of Common Stock held by such holder.
b. Dividends and Other Distributions. The Board may cause dividends to be paid
to holders of Common Stock out of funds legally available for the payment of dividends. Any
dividend or distribution on the Common Stock shall be payable on all Common Stock share and
share alike.
c. Liquidation. In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, after payment or provision for payment of the
Corporation’s debts and other liabilities, the holders of Common Stock shall be entitled to
share
ratably, share alike, in the Corporation’s remaining net assets.
FIFTH: In furtherance and not in limitation of the powers conferred by statute, the Board is
expressly authorized to alter, amend, repeal or adopt the Corporation’s bylaws (the “Bylaws”);
provided, however, that any such alteration, amendment, repeal or adoption that relates to
or affects in any way the criteria for, qualifications of, or requirement that the Corporation
maintain at least one “Independent Director” (as defined in the Seventh Article), must receive the
prior affirmative vote or written consent of each Independent Director.
SIXTH: Elections of directors need not be by written ballot unless, and to the extent, so
provided in the Bylaws.
SEVENTH: The Corporation shall at all times (except as noted hereafter in the event of death,
incapacity, resignation or removal) have at least one director (an “Independent Director”) who (a)
is not and has not, during the past five years, been a stockholder (whether direct, indirect or
beneficial), customer, advisor or supplier of Seller or any of its affiliates (provided
that indirect stock ownership of Seller or of any affiliate by any person through a mutual fund or
similar diversified investment pool shall not disqualify such person from being an Independent
Director unless such person maintains direct or indirect control of the investment decisions of
such mutual fund or similar diversified investment pool); (b) is not and has not, during the past
five years, been a director, officer, employee, affiliate or associate of Seller or any of its
affiliates (other than the Corporation) (Seller and its affiliates other than the Corporation being
hereinafter referred to as the “Corporate Group”); (c) is not a person related to any person
referred to in clauses (a) and (b); (d) is not and has not, during the past five years, been a
trustee, conservator or receiver for any member of the Corporate Group; and (e) has (i) prior
experience as an independent director for a corporation whose charter documents required the
unanimous consent of all independent directors thereof before such corporation could consent to the
2
institution of bankruptcy or insolvency proceedings against it or could file a petition seeking
relief under any applicable federal or state law relating to bankruptcy and (ii) at least three
years of employment experience with one or more entities that provide, in the ordinary course of
their respective businesses, advisory, management or placement services to issuers of
securitization or structured finance instruments, agreements or securities. The Corporation shall
cause each Independent Director to be paid a fee of at least $ 1,000 per year. In the event of the
death, incapacity, resignation or removal of any Independent Director, the Board shall promptly
appoint a replacement Independent Director. The Board shall not vote on any matter requiring the
vote of an Independent Director under this Certificate of Incorporation unless at least one
Independent Director is then serving on the Board.
EIGHTH: To the extent permitted under the Delaware General Corporation Law, none of the
Corporation’s directors shall be liable to the Corporation or its stockholders for monetary damages
as a result of breaching any fiduciary duty as a director. Any repeal or modification of this
Eighth Article by the Corporation’s stockholders shall be prospective only, and shall not adversely
affect any limitation on the personal liability of any director of the Corporation existing at the
time of such repeal or modification.
NINTH: Subject to the limitations of an Independent Director in the Seventh Article, to the
extent permitted under the Delaware General Corporation Law, any person (including stockholders,
directors, officers and employees of the Corporation or any affiliate of the Corporation) may
engage in or possess an interest in other business ventures of every nature and description,
independently or with others, whether such ventures are competitive with the Corporation or
otherwise, and neither the Corporation nor its stockholders shall have any right in or to such
independent ventures or to the income or profits derived therefrom.
TENTH: Notwithstanding any other provision of this Certificate of Incorporation and any
provision of law, the Corporation shall not do any of the following:
(a) engage in any business or activity other than as set forth in the Third Article
hereof;
(b) without the affirmative vote of all of the Board members (which must include
the affirmative vote of at least one duly appointed Independent Director), (i)
dissolve or
liquidate, in whole or in part, or institute proceedings to be adjudicated bankrupt or
insolvent, (ii) consent to the institution of bankruptcy or insolvency proceedings
against
it, (iii) file a petition seeking or consenting to reorganization or relief under any
applicable federal or state law relating to bankruptcy or insolvency, (iv) consent to
the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other
similar
official) of the Corporation or a substantial part of its property, (v) make a general
assignment for the benefit of creditors, (vi) admit in writing its inability to pay
its debts
generally as they become due or (vii) take any corporate action in furtherance of the
actions set forth in clauses (i) through (vi) of this paragraph;
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(c) without the affirmative vote of all of the Board members (which must include
the affirmative vote of at least one duly appointed Independent Director) merge or
consolidate with any other corporation, company or entity or, except to the extent
contemplated by the Third Article hereof, sell all or substantially all of its assets
or
acquire all or substantially all of the assets or capital stock or other ownership
interest of
any other corporation, company or entity; or
(d) without the affirmative vote of all of the Board members (which must include
the affirmative vote of at least one duly appointed Independent Director), incur or
assume
any indebtedness for borrowed money except (i) indebtedness contemplated by paragraph
(c) of the Third Article hereof or (ii) indebtedness to Seller for the purchase of
Receivables on a deferred payment basis and incurred pursuant to the Purchase
Agreement.
When voting on whether the Corporation will take any action described in paragraph (b), (c) or
(d) above, each Director shall owe its primary fiduciary duty or other obligation to the
Corporation (including the Corporation’s creditors) and not to the stockholders (except as may
otherwise be required by the Delaware General Corporation Law). Every stockholder of the
Corporation shall be deemed to have consented to the foregoing by virtue of such stockholder’s
consent to this Certificate of Incorporation.
ELEVENTH: The Corporation shall ensure at all times that (a) it conducts its business from an
office that is separate and distinct from those of each member of the Corporate Group, even if such
office space is subleased from, or is on or near premises occupied by, a Corporate Group member,
(b) it maintains separate corporate records and books of account from those of each member of the
Corporate Group, (c) none of the Corporation’s assets will be commingled with those of any member
of the Corporate Group; (d) any employee, consultant or agent of the Corporation or any other
operating expense incurred by the Corporation, will be paid from the assets of the Corporation; and
(e) it maintains an arm’s length relationship with Seller and each other member of the Corporate
Group.
TWELFTH: The Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation in any manner now or hereafter provided herein or by
statute; provided, however, that the Corporation shall not amend, alter, change or repeal
any provision of the Third, Fifth, Seventh, Tenth, Eleventh, or Twelfth Article of this Certificate
of Incorporation (the “Restricted Articles”) without the affirmative vote of all (which shall be at
least one) Independent Directors, and provided, further, that the Corporation shall not
amend or change any provision of any Article other than the Restricted Articles so as to be
inconsistent with the Restricted Articles.
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THIRTEENTH: The sole incorporator’s name and mailing address are as follows:
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Carter Strong
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0000 Xxxxxxxxxxx Xxxxxx, X.X. |
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Washington, D.C. 20036-5339 |
THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the Delaware General Corporation Law, makes this
Certificate, hereby declaring and certifying that the facts herein stated are true, and
accordingly
has hereunto set his hand this 14th day of August 1997
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/s/ Xxxxxx Xxxxxx
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Carter Strong |
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Incorporator |
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5
BYLAWS
OF
NMC FUNDING CORPORATION*
ARTICLE I
OFFICES
Section 1. The registered office of NMC Funding Corporation (the “Corporation”)
shall be in the City of Wilmington, State of Delaware.
Section 2. The Corporation may also have offices at such other places both within and without
the State of Delaware as the board of directors (the “Board”) may from time to time determine or
the Corporation’s business may require.
Section 3. The Corporation shall maintain a business office through which its business will be
conducted separate from those of National Medical Care, Inc. and its affiliates.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Meetings of stockholders shall be held at any place within or outside the State of
Delaware designated by the Board. In the absence of any such designation, stockholders’ meetings
shall be held at the Corporation’s principal executive office.
Section 2. The annual meeting of stockholders shall be held each year on a date and at a time
designated by the Board. At each annual meeting, directors shall be elected and any other proper
business may be transacted.
Section 3. A majority of the Corporation’s capital stock outstanding and entitled to vote at
any meeting of stockholders, the holders of which are present in person or represented by proxy,
shall constitute a quorum for the transaction of business except as otherwise provided by law, by
the Corporation’s Certificate of Incorporation (the “Certificate of Incorporation”), or by these
Bylaws. A quorum, once established, shall not be broken by the withdrawal of enough votes to leave
less than a quorum and the votes present may continue to transact business until adjournment. If,
however, such quorum shall not be present or represented at any meeting of the stockholders, a
majority of the voting stock represented in person or by proxy may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a
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As duly adopted by the Corporation’s sole incorporator on August 14, 1997 and by the Board as of
August 15, 1997. |
quorum shall be present or represented. At such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been transacted at the
meeting as originally notified. If the adjournment is for more than 30 days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote thereat.
Section 4. When a quorum is present at any meeting, the vote of the holders of a majority of
the stock having voting power present in person or represented by proxy shall decide any question
brought before such meeting, unless the question is one upon which by express provision of the
statutes, or the Certificate of Incorporation, or these Bylaws, a different vote is required in
which case such express provision shall govern and control the decision of such question.
Section 5. At each meeting of the stockholders, each stockholder having the right to vote may
vote in person or may authorize another person or persons to act for him by proxy appointed by an
instrument in writing subscribed by such stockholder and bearing a date not more than three years
prior to said meeting, unless said instrument provides for a longer period. All proxies must be
filed with the Corporation’s Secretary at the beginning of each meeting in order to be counted in
any vote at the meeting. Each stockholder shall have one vote for each share of stock having voting
power, registered in his name on the Corporation’s books on the record date set by the Board as
provided in Article V, Section 6 hereof. All elections shall be had and all questions decided by a
plurality vote.
Section 6. Special meetings of the stockholders, for any purpose, or purposes, unless
otherwise prescribed by statute or by the Certificate of Incorporation, may be called by the
President and shall be called by the President or the Secretary at the request in writing of a
majority of the Board, or at the request in writing of stockholders owning a majority in amount of
the Corporation’s capital stock outstanding and entitled to vote. Such request shall state the
purpose or purposes of the proposed meeting. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
Section 7. Whenever stockholders are required or permitted to take any action at a meeting, a
written notice of the meeting shall be given which notice shall state the place, date and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting
is called. The written notice of any meeting shall be given to each stockholder entitled to vote at
such meeting not fewer than 10 nor more than 60 days before the date of the meeting. If mailed,
notice is given when deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the Corporation’s records.
Section 8. The officer who has charge of the Corporation’s stock ledger shall prepare and
make, at least 10 days before every meeting of stockholders a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
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Such list shall be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least 10 days prior to the meeting,
either at a place within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is present.
Section 9. Unless otherwise provided in the Certificate of Incorporation, any action required
to be taken at any annual or special meeting of stockholders, or any action which may be taken at
any annual or special meeting of such stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those stockholders who have not
consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole Board shall be not fewer
than two nor more than six. The directors need not be stockholders or citizens of the United States
or residents of the State of Delaware. The Corporation shall at all times, except as noted
hereafter, have at least one Independent Director (as such term is defined in the Certificate of
Incorporation). In the event of the death, incapacity, resignation or removal of any Independent
Director, or if any director acting as an Independent Director shall cease to satisfy the
eligibility conditions for an Independent Director, the Board shall promptly appoint a replacement
Independent Director; provided, however, that the Board shall not vote on any
matter requiring the vote of an Independent Director unless and until at least one Independent
Director has been duly appointed to serve on the Board. The directors shall be elected at the
annual meeting of the stockholders, except as provided in Section 2 of this Article, and each
director elected shall hold office until his successor is elected and qualified; provided,
however that unless otherwise restricted by the Certificate of Incorporation or by law, any
director or the entire Board may be removed, either with or without cause, from the Board at any
meeting of stockholders by a majority of the stock represented and entitled to wrote thereat.
Section 2. Vacancies on the Board by reason of death, resignation, retirement,
disqualification, or increase in the authorized number of directors may, subject to Section 1
above, be filled by a majority of the directors then office, although less than a quorum, or by a
sole remaining director. The directors so chosen shall hold office until the next annual election
of directors and until their successors are duly elected and shall quality, unless sooner
displaced. If there are no directors in office, then an election of directors may be held in the
manner
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provided by statute. If, at the time of filling any vacancy, the directors then in office shall
constitute less than a majority of the whole Board (as constituted immediately prior to any such
increase), the Court of Chancery may, upon application of stockholders holding at least ten percent
of the total number of the shares at the time outstanding having the right to vote for such
directors, summarily order an election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then in office.
Section 3. The Corporation’s property and business shall be managed by or under the direction
of the Board. In addition to the powers and authorities by these Bylaws expressly conferred upon
them, the Board may exercise all such powers of the corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these Bylaws directed or
required to be exercised or done by the stockholders.
MEETING OF THE BOARD
Section 4. The directors may hold their meetings and have one or more offices, and keep the
Corporation’s books outside of the State of Delaware.
Section 5. Regular meetings of the Board may be held without notice at such time and place as
shall from time to time be determined by the Board.
Section 6. Special meetings of the Board may be called by the President on forty-eight hours’
notice to each director, either personally, by telegram or by telecopy. Special meetings shall be
called by the President or the Secretary in like manner and on like notice on the written request
of two directors unless the Board consists of only one director; in which case special meetings
shall be called by the President or Secretary in like manner or on like notice on the written
request of the sole director.
Section 7. At all meetings of the Board, one-half of the entire Board shall be necessary and
sufficient to constitute a quorum for the transaction of business, and the vote of a majority of
the directors present at any meeting at which there is a quorum, shall be the act of the Board,
except as may be otherwise specifically provided by statute, by the Certificate of Incorporation or
by these Bylaws and except that one Independent Director must be present to form a quorum for any
matter which, pursuant to the Certificate of Incorporation or these Bylaws, requires the vote of
each Independent Director. If a quorum shall not be present at any meeting of the Board, the
directors present thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present. If only one director is authorized,
such director shall constitute quorum.
Section 8. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws,
any action required or permitted to be taken at any meeting of the Board or of any committee
designated by the Board (“Committee”) may be taken without a meeting, if all
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members of the Board or Committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board or Committee.
Section 9. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws,
members of the Board, or any Committee designated by the Board, may participate in a meeting of the
Board or any Committee, by means of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other, and such participation
in a meeting shall constitute presence in person at such meeting.
COMMITTEES OF DIRECTORS
Section 10. The Board may, by resolution passed by a majority of the whole Board, designate
one or more Committees, each such Committee to consist of one or more of the Board members. The
Board may designate one or more directors as alternate members of any Committee, who may replace
any absent or disqualified member at any meeting of the Committee. In the absence or
disqualification of a member of a Committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously
appoint another Board member to act at the meeting in the place of any absent or disqualified
member. Any such Committee, to the extent provided in the resolution of the Board, and subject to
the requirements of Article III, shall have and may exercise all the powers and authority of the
Board in the management of the Corporation’s business and affairs, and may authorize the seal for
the Corporation to be affixed to all papers which say require it; but no such Committee shall have
the power or authority in reference to amending the Certificate of Incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange
of all or substantially all of the Corporation’s property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution, amending the
Bylaws, or taking any other action which, pursuant to the Certificate of Incorporation, requires
the vote of each Independent Director; and, unless the resolution or the Certificate of
Incorporation expressly so provides, no such Committee shall have the power or authority to declare
a dividend or to authorize the issuance of stock.
Section 11. Each Committee shall keep regular minutes of its meetings and report the same to
the Board when required.
COMPENSATION OF DIRECTORS
Section 12. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws,
the Board shall have the authority to fix the compensation of directors. The directors may be paid
their expenses, if any, of attendance at each Board meeting and may be paid a fixed sum for
attendance at each meeting of the Board or a stated salary as director; provided,
however, that services provided by any director which are determined by the Board to
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be ministerial and of negligible value will not be compensated. No such payment shall preclude any
director from serving the Corporation in any other capacity and receiving compensation therefor.
Members of special or standing Committees may be allowed like compensation for attending Committee
meetings.
INDEMNIFICATION
Section 13. The Corporation shall indemnify every person who was or is a party or is or was
threatened to be made a party to any action, suit, or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a director officer or
employee of the Corporation or, while a director, officer or employee of the Corporation, is or was
serving at the request of the Corporation as a director, officer, employee, agent or trustee of
another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise,
against expenses (including counsel fee), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with such action, suit or proceeding, to the full
extent permitted by applicable law.
ARTICLE IV
OFFICERS
Section 1. The Corporation’s officers shall be chosen by the Board and shall include a
President, a Secretary, and a Treasurer. The Corporation may also have at the Board’s discretion
such other officers as are desired, including a chairman of the Board, one or more Vice Presidents,
one or more Assistant Secretaries and Assistant Treasurers, and such other officers as may be
appointed in accordance with the provisions of Section 2 hereof. If there are two or more Vice
Presidents, then one or more may be designated as Executive Vice President, Senior Vice President,
or other similar or dissimilar title. At the time of the election of officers, the directors may by
resolution determine the order of their rank. Any number of offices may be held by the same person,
unless the Certificate of Incorporation or these Bylaws otherwise provide.
Section 2. The Board may appoint such other officers and agents as it shall deem necessary
who shall hold their offices for such terms and shall exercise such powers and perform such
duties, as shall be determined from time to time by the Board.
Section 3. The salaries of all officers and agents of the Corporation shall be fixed by the
Board.
Section 4. The Corporation’s officers shall hold office until their successors are chosen and
qualify in their stead. Any officer elected or appointed by the Board may be removed at any time by
the affirmative vote of a majority of the Board. If the office of any officer or officers becomes
vacant for any reason, the vacancy shall be filled by the Board.
6
CHAIRMAN OF THE BOARD
Section 5. The Chairman of the Board, if such an officer be elected, shall, if present,
preside at all meetings of the Board and exercise and perform such other powers and duties as may
be from time to time assigned to him by the Board or prescribed by these Bylaws. If there is no
President, the Chairman of the Board shall in addition be the Corporation’s Chief Executive Officer
and shall have the powers and duties prescribed in Section 6 of this Article IV.
PRESIDENT
Section 6. Subject to such supervisory powers, if any, as may be given by the Board to the
Chairman of the Board, if there be such an officer, the President shall be the Corporation’s Chief
Executive Officer and shall, subject to the Board’s control, have general supervision, direction
and control of the Corporation’s business and officers. He shall preside at all meetings of the
stockholders and, in the absence of the Chairman of the Board, or if there be none, at all Board
meetings. He shall be an ex-officio member of all Committees and shall have the general powers and
duties of management usually vested in the office of President and Chief Executive Officer of
corporations, and shall have such other powers and duties as may be prescribed by the Board or
these Bylaws.
VICE PRESIDENTS
Section 7. In the absence or disability of the President, the Vice Presidents in order of
their rank as fixed by the Board, or if not ranked, the Vice President designated by the Board,
shall perform all the duties of the President, and when so acting shall have all the powers of and
be subject to all the restrictions upon the President. The Vice Presidents shall have such other
duties as from time to time may be prescribed for them, respectively, by the Board.
Section 8. The Secretary shall attend all Board meetings and all meetings of the stockholders
and record all votes and the minutes of all proceedings in a book to be kept for that purpose; and
shall perform like duties for the standing Committees when required by the Board. He shall give, or
cause to be given, notice of all meetings of the stockholders and of the Board, and shall perform
such other duties as may be prescribed by the Board or these Bylaws. He shall keep in safe custody
the seal of the Corporation, and when authorized by the Board, affix the same to any instrument
requiring it, and when so affixed it shall be attested by his signature or by the signature of an
Assistant Secretary. The Board may give general authority to any other officer to affix the seal of
the Corporation and to attest the affixing by his signature.
Section 9. The Assistant Secretary, or if there be more than one, the Assistant Secretaries in
the order determined by the Board, or if there be no such determination, the Assistant Secretary
designated by the Board, shall, in the absence or disability of the Secretary, perform the duties
and exercise the powers of the Secretary and shall perform such other duties and have such other
powers as the Board may from time to time prescribe.
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TREASURER AND ASSISTANT TREASURER
Section 10. The Treasurer shall have the custody of the corporate funds and securities and
shall keep full and accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all moneys and other valuable effects, in the name and to the credit
of the Corporation, in such depositories as may be designated by the Board. He shall disburse the
Corporation’s funds as may be ordered by the Board, taking proper vouchers for such disbursements,
and shall render to the Board, at its regular meetings, or when the Board so requires, an account
of all his transactions as Treasurer and of the Corporation’s financial condition. If required by
the Board, he shall give the Corporation a bond, in such sum and with such surety or sureties as
shall be satisfactory to the Board, for the faithful performance of the duties of his office and
for the restoration to the Corporation, in case of his death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
SECRETARY AND ASSISTANT TREASURER
Section 11. The Assistant Treasurer, or if there shall be more than one, the Assistant
Treasurers in the order determined by the Board, or if there be no such determination, the
Assistant Treasurer designated by the Board, shall, in the absence or disability of the Treasurer,
performs the duties and exercise the powers of the Treasurer and shall perform such other duties
and have such other powers as the Board may from time to time prescribe.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Every holder of stock of the Corporation shall be entitled to have a certificate
signed by, or in the name of the Corporation by, the Chairman or Vice Chairman of the Board, or the
President or a Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer or
an Assistant Treasurer of the Corporation, certifying the number of shares represented by the
certificate owned by such stockholder in the Corporation.
Section 2. Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent, or registrar at the date of issue.
Section 3. If the Corporation shall be authorized to issue more than one class of stock or
more than one series of any class, the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series thereof and the
qualification, limitations or restrictions of such preferences and/or rights shall be set forth in
full
8
or summarized on the face or back of the certificate which the Corporation shall issue to represent
such class or series of stock, provided that, except as otherwise provided in section 202 of the
General Corporation Law of the State of Delaware, in lieu of the foregoing requirements, there may
be set forth on the face or back of the certificate, which the Corporation shall issue to represent
such class or series of stock, a statement that the Corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
LOST, STOLEN OR DESTROYED CERTIFICATES
Section 4. The Board may direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen
or destroyed, upon the miking of an affidavit of that fact by the a person claiming the certificate
of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or
certificates, the Board may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to have been lost, stolen or
destroyed.
TRANSFER OF STOCK
Section 5. Upon surrender to the Corporation, or the Corporation’s transfer agent, of a
certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation
or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the
person entitled thereto, cancel the old certificate and record the transaction upon its books.
FIXING RECORD DATE
Section 6. In order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of the stockholders, or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful action, the Board
may fix a record date which shall not be more than 60 nor fewer than 10 days before the date of
such meeting, nor more than sixty days prior to any other action. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board may fix a new record date for the
adjourned meeting.
9
REGISTERED STOCKHOLDERS
Section 7. The Corporation shall be entitled to treat the holder of record of any share or
shares of stock as the holder in fact thereof and accordingly shall not be bound to recognize any
equitable or other claim or interest in such share on the part of any other person, whether or not
it shall have express or other notice thereof, except as expressly provided by the laws of the
State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the Corporation’s capital stock, subject to the
provisions of the Certificate of Incorporation, if any, may be declared by the Board at any regular
or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in capital
stock, subject to the provisions of the Certificate of Incorporation.
Section 2. Before payment of any dividend there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the directors from time to time, in their
absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or for such other
purpose as the directors shall think conducive to the interests of the Corporation, and the
directors may abolish any such reserve. The Corporation will not pay dividends out of funds other
than retained earnings unless the Board determines that the funds to be paid as dividends are no
longer needed by the Corporation in the operations of its business and that the Corporation will
not require any additional capital contributions after the payment of such dividend.
CHECKS
Section 3. All checks, drafts or other orders for the payment of money issued in the name of
the Corporation shall be signed by such officers, employees or agents of the Corporation as shall
from time to time be designated by the Chairman of the Board, the President, the Vice
President-Finance, the Treasurer or an Assistant Treasurer.
All funds of the Corporation not otherwise employed shall be deposited from time to time to
the credit of the Corporation in such banks, trust companies or other depositories as shall from
time to time be designated by the Chairman of the Board, the President, the Vice President-Finance,
the Treasurer or an Assistant Treasurer; and such officers may designate any type of depository
arrangement (including but not limited to depository arrangements resulting in net debits against
the Corporation) as from time to time offered or available.
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FISCAL YEAR
Section 4. The Corporation’s fiscal year shall be fixed by resolution of the Board.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of the Corporation, the
year of its organization and the words “Corporate Seal, Delaware.” Said seal may be used by causing
it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
NOTICES
Section 6. Whenever, under the provisions of the statutes or of the Certificate of
Incorporation or of these Bylaws, notice is required to be given to any director or stockholder, it
shall not be construed to mean personal notice, but such notice may be given in writing, by mail,
addressed to such director or stockholder, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time
when the same shall be deposited in the United States mail. Notice to directors may also be given
by telegram.
Section 7. Whenever any notice is required to be given under the provisions of the statutes or
of the Certificate of Incorporation or of these Bylaws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time stated therein, shall
be deemed to be equivalent.
ANNUAL STATEMENT
Section 8. The Board shall present at each annual meeting, and at any special meeting of the
stockholders when called for by vote of the stockholders, a full and clear statement of the
Corporation’s business and condition.
ARTICLE VII
AMENDMENTS
Section 1. These Bylaws may be altered, amended or repealed or new Bylaws may be adopted by
the stockholders or by the Board, when such power is conferred upon the Board by the Certificate of
Incorporation, at any regular meeting of the stockholders or of the Board or at any special meeting
of the stockholders or of the Board if notice of such alteration, amendment, repeal or adoption of
new Bylaws is contained in the notice of such special meeting; provided, however, that any
such alteration, amendment, repeal or adoption that relates to or effects in any way the criteria
for, qualifications of, or requirement that the Corporation maintain
11
one Independent Director and one Independent Officer must receive the prior affirmative vote or
written consent of each Independent Director. If the power to adopt, amend or repeal Bylaws is
conferred upon the Board by the Certificate of Incorporation, it shall not divest or limit the
power of the stockholders to adopt, amend or repeal Bylaws.
12
NMC FUNDING CORPORATION
Action by Unanimous Written Consent of the Board of Directors
In Lieu of a Meeting
October 16, 2008
The undersigned, being all the Directors of NMC Funding Corporation, a Delaware corporation
(the “Corporation”), hereby consent to the adoption of the following resolutions, which shall be
treated as resolutions for all purposes and as fully as if said resolutions were adopted at a duly
called and held meeting of the Board of Directors, effective as of the date set forth above:
RESOLVED: That the Fourth Amended and Restated Transfer and Administration Agreement by and
among the Corporation, as Transferor, National Medical Care, Inc., as Collection Agent, the
entities party thereto as Conduit Investors, the financial institutions party thereto as Bank
Investors, the financial institutions party thereto as Administrative Agents, and WestLB AG, New
York Branch, as Agent (the “Agreement”), as previously provided to the Board, be and the same
hereby is approved and adopted, and that each officer of the Corporation be and each hereby is
authorized and directed, acting in the name of and on behalf of the Corporation to execute and
deliver the Agreement, or one or more instruments evidencing the Agreement, with such changes as
any such officer shall, in his sole discretion, deem necessary or advisable, the execution and
delivery of the same to be conclusive evidence of the authority granted hereunder.
RESOLVED: That each officer of the Corporation be, and each of them individually hereby is,
authorized and directed, in the name and on behalf of the Corporation, to (a) negotiate, execute
and deliver such other instruments, agreements and/or documents required by, in furtherance of, or
in connection with the Agreement (collectively with the Agreement, the “Transaction Documents”)
with such changes or additions thereto as such officers may approve, the execution by any of such
officers of any such Transaction Documents or the doing by such officer of any action in connection
with the foregoing establishing conclusively such officer’s approval and the approval of the Board
of Directors, and (b) cause the Corporation to perform its obligations thereunder.
RESOLVED: That all action taken and/or any resolutions adopted by the Corporation’s current
Board of Directors and officers in connection with the negotiation and execution of the
Transaction Documents be, and hereby are, ratified, affirmed and approved.
[Signature page to follow]
IN WITNESS WHEREOF, the undersigned have executed this consent effective as of the date set
forth above.
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/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx |
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/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx |
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IN WITNESS WHEREOF, the undersigned have executed this consent effective as of the date set
forth above.
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/s/ Jill A. Russo
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Jill A. Russo |
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Certificate of Secretary
I, the undersigned, being the Secretary of National Medical Care, Inc, a Delaware corporation
(the “Company”), DO HEREBY CERTIFY that:
The person named below has been duly appointed, is duly qualified as and is on the date hereof an
officer of the Company, and the signature below set opposite his name is his genuine signature.
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Name |
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Office |
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Signature |
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Mark Fawcett
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Treasurer
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/s/ Mark Fawcett |
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Attached hereto as Exhibit A is a true and complete copy of the Company’s
Certificate/Articles of Incorporation, or its equivalent, as filed in the Office of the
Secretary of State, or its equivalent, of the State of incorporation, together with all
amendments thereto adopted through the date hereof.
Attached hereto as Exhibit B is a true and complete copy of the Company’s by-laws as in effect on
the date hereof, together with all amendments thereto adopted through the date hereof.
Attached hereto as Exhibit C are true and correct copies of the resolutions duly adopted by the
Company’s board of directors on October 16, 2008 by written consent, which resolutions have not
been revoked, modified, amended, or rescinded and are in full force and effect as of the date
hereof. Except as attached hereto as Exhibit C, no resolutions have been adopted by the Company’s
board of directors which deal with matters set forth in Exhibit C.
IN WITNESS WHEREOF, I have hereunto set my hand this 16th day of October, 2008.
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/s/ Douglas G. Kott
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Douglas G. Kott |
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Secretary |
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PAGE 1
I,
GLENN C. KENTON, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY CERTIFY THE
ATTACHED 19 A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF INCORPORATION OF NMC HOLDING CORP,
FILED IN THIS OFFICE ON THE SIXTH DAY OF AUGUST, A. D. 1984, AT 10 O’CLOCK A.M.
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/s/ Glenn C. Kenton
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Glenn C. Kenton, Secretary of State
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AUTHENTICATION:
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10301820 |
734219006
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DATE:
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08/06/1984 |
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CERTIFICATE
OF INCORPORATION
of
NMC HOLDING CORP.
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FIRST. The name of the Corporation is: NMC Holding Corp.
SECOND. The address of its registered office in the State of Delaware is Corporation Trust
Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust Company.
THIRD. The nature of the business or purposes to be conducted or promoted by
the Corporation is as follows:
To engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of
Delaware.
FOURTH. (A) The Corporation shall have the authority to issue two classes of stock to be
designated, respectively, “Common Stock” and “preferred stock”. The total number of shares
which the Corporation is authorized to issue is 22,000,000 shares, $.01 par value per share,
of which 17,000,000 shares shall be Common Stock and 5,000,000 shares shall be Preferred
Stock.
(B) The
Preferred Stock may be issued from time to time in one or more series. The Board of
Directors of the Corporation is hereby authorized, within the limitations and restrictions stated
in this Certificate of Incorporation, to determine or alter the rights, preferences, powers,
privileges and the restrictions, qualifications and limitations granted to or imposed upon any
wholly unissued series of Preferred Stock, and the number of shares constituting any such series
and the designation thereof, and to increase or decrease the number of shares constituting any such
series; and to increase or decrease the number of shares of any series subsequent to the issue of
shares of that series, but not below the number of shares of such series then outstanding. In case
the number of shares of any series shall be so decreased, the shares then constituting such
decrease shall resume the status which they had prior to the adoption of the resolution
originally fixing the number of shares of such series.
FIFTH.
The name and mailing address of the sole incorporator are as
follows:
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NAME |
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MAILING ADDRESS |
Paul P. Brountas
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60 State Street |
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Boston, MA 02109 |
SIXTH. In furtherance of and not in limitation of powers conferred by statute, it is further
provided:
1. Election of directors need not be by written
ballot.
2. The Board of Directors is expressly authorized to
adopt, amend or repeal the By-Laws of the Corporation.
SEVENTH. Whenever a compromise or arrangement is proposed between this corporation and its
creditors or any class of them and/or between this corporation and its stockholders or any class of
them, any court of equitable jurisdiction within the State of Delaware may, on the application in a
summary way of this corporation or of any creditor or stockholder thereof, or on the application of
any receiver or receivers appointed for this corporation under the provisions of Section 291 of
Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or
receivers appointed for this corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or
class of stockholders of this corporation, as the case may be, to be summoned in such manner as the
said court directs. If a majority in number representing three-fourths in value of the creditors
or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as
the case may be, agree to any compromise or arrangement and to any reorganization of this
corporation as consequence of such compromise or arrangement, the said compromise or arrangement
and the said reorganization shall, if sanctioned by the court to which the said application has
been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or
class of stockholders, of this corporation, as the case may be, and also on this corporation.
EIGHTH. The Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by
statute and the Certificate of Incorporation, and all rights conferred upon stockholders herein are
granted subject to this reservation.
EXECUTED at Boston, Massachusetts on August 3, 1984.
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/s/ Paul P. Brountas
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Paul P. Brountas |
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Incorporator |
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2
PAGE 1
I, MICHAEL RATCHFORD, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE
ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF RESTATED CERTIFICATE OF INCORPORATION OF
“NMC HOLDING CORP.” FILED IN THIS OFFICE ON THE NINETEENTH DAY OF DECEMBER, A.D. 1984, AT 10
O’CLOCK A.M.
* * * * * * * * * *
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921895304 |
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/s/ Michael Ratchford |
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SECRETARY OF STATE |
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AUTHENTICATION:
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*3511612
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DATE:
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07/08/1992 |
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RESTATED CERTIFICATE OF INCORPORATION
OF
NMC HOLDING CORP.
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Pursuant to Section 242 and 245 of the General
Corporation Law of the State of Delaware
The
undersigned, Constantine L. Hampers, M.D. and Ellen B. Corenswet, President and Assistant
Secretary, respectively, of NMC Holding Corp., a corporation organized and existing under the the
General Corporation Law of the State of Delaware (the
“Corporation”), the Certificate of
Incorporation of which was filed in the Office of the Secretary of State of Delaware on August 6,
1984, do hereby certify that this Restated certificate of incorporation was duly adopted by the
Board of Directors and the stockholders of the Corporation in accordance with the provisions of
Sections 242 and 245 of the General Corporation Law of the State of Delaware.
FIRST. The name of the Corporation is NMC Holding Corp.
SECOND. The address of its registered office in the State of Delaware is Corporation Trust
Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust Company.
THIRD. The nature of the business or purposes to be conducted or promoted is as
follows:
To acquire and hold, directly or indirectly, all of the outstanding shares of capital stock of
Rational Medical Care, Inc.
To engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware.
FOURTH. (A) The Corporation is authorized to issue two classes of stock to be designated,
respectively, “Common Stock” and “Preferred Stock.” The total number of shares which the
Corporation is authorized to issue is 20,000,000 shares, $.01 par value per share, of which
15,000,000 shares shall be Common Stock and 5,000,000 shares shall be Preferred Stock.
(B) The Preferred Stock may be issued from
time to time in one or more series. The Board of Directors of the Corporation is hereby authorized,
within the limitations and restrictions stated in this Restated Certificate of Incorporation, to
determine or alter the rights, preferences, powers, privileges and the restrictions, qualifications
and limitations granted to or
imposed upon any wholly unissued series of Preferred Stock, and the number of shares constituting
any such series and the designation thereof; and to increase or decrease the number of shares
constituting any such series; and to increase or decrease the number of shares of any series
subsequent to the issue of shares of that series, but not below the number of shares of such series
which have been issued. In case the number of shares constituting any series shall be so
decreased, the shares then constituting such decrease shall resure the status which they had prior
to the adoption of the resolution originally fixing the number of shares of such series.
(C) Three Million Five Hundred Eighty
Thousand (3,580,000) shares of the authorized and unissued Preferred Stock of the Corporation are
hereby designated “Series A Convertible Preferred Stock” (hereinafter referred to as “Series A
Stock”). Nine Hundred Seventeen Thousand (917,000) shares of the authorized and unissued Preferred
Stock of the Corporation are hereby designated “Series B Convertible Preferred Stock” (hereinafter
referred to as “Series B Stock”). The “Series A Stock and the series B Stock” are hereinafter
referred to collectively as the “Series Preferred Stock.” Four Hundred Fifty Thousand (450,000)
shares of the authorized and unissued Preferred Stock of the Corporation are hereby designated “12%
Cumulative Redeemable Preferred Stock” (the “12% Preferred
Stock”). The rights, preferences,
powers, privileges and restrictions, qualifications and limitations granted to or imposed upon the
shares of Series Preferred Stock and the 12% Preferred Stock shall be as follows:
1. Dividends.
(a) (i) In each fiscal year of the Corporation, the holders of the 12% Preferred Stock shall
be entitled to receive, when and as declared by the Board of Directors of the Corporation out of
the funds legally available for that purpose, dividends payable in cash at the rate of twelve per
cent (12%) per annum on the Liquidation Value (as defined in subsection 2(a) hereof) of such
shares, and no more, payable quarterly on the first day of March, June, September and December in
each year (each such date being referred to herein as a “Quarterly Dividend Date”). The dividends
on shares of the 12% Preferred Stock shall be cumulative and shall commence to accrue from the date
of issue of such shares, so that if in any year dividends on the 12% Preferred Stock at the rate of
twelve per cent (12%) per annum of the Liquidation Value thereof shall not have been paid or
declared and set apart, the deficiency shall, except as otherwise provided in paragraph (ii) of
this subsection 1(a), remain payable by the Corporation to the holders of the 12% Preferred Stock.
Until all outstanding shares of the 12% Preferred Stock have been redeemed by the Corporation in
accordance with Sections 6 and 7 hereof, no dividend or other distribution payable in cash shall be
paid on any shares of the Corporation’s Series A Stock, Series B Stock or Common Stock.
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(ii) In the event that the Corporation shall, for any reason, be unable to pay or declare and
set apart any dividend on the 12% Preferred Stock as provided in paragraph (i) of this subsection
l(a) (“Defaulted Dividend”), the Corporation shall, to the
extent it may lawfully do so, issue in
lieu of the Defaulted Dividend, a stock dividend of additional shares of the 12% Preferred Stock
having a Liquidation Value equal to the amount of the Defaulted Dividend (rounded to the nearest
whole share with one-half share rounded upward).
(b) Subject
to subsection 1(a), in each fiscal year of the Corporation the holders of shares
of Series B Stock shall be entitled to receive before any cash dividends shall be declared and paid
upon or set aside for the Series A Stock or the Common Stock in such fiscal year, when, as and if
declared by the Board of Directors of the Corporation out of the funds legally available for that
purpose, dividends payable in cash in an amount per share for such fiscal year at least equal to
the product of (a) $.65, multiplied by (b) the number of whole shares of Common Stock into which
each such share of Series B Stock is then convertible.
(c) Subject to subsection 1(a), in each fiscal year of the Corporation, after payment shall
have been made to the holders of shares of Series B Stock of the full amount to which they are
entitled as aforesaid, the holders of the shares of Series A Stock and Series B Stock shall be
entitled to receive, before any cash dividends shall be paid upon or set aside for the Common Stock
in such fiscal year, when, as and if declared by the Board of Directors of the Corporation out of
the funds legally available for that purpose, dividends payable in cash in an amount per share for
such fiscal year at least equal to the product of (a) the per share amount, if any, of the cash
dividend declared, paid or set aside for the Common Stock during such fiscal year, multiplied by
(b) the number of whole shares of Common Stock into which each
such share of Series A Stock and Series B Stock is then
convertible.
2. Liquidation, Dissolution or Winding Up.
(a) (i) In the event of any voluntary or involuntary liquidation, dissolution or winding up
of the Corporation, the holders of the shares of 12% Preferred Stock then outstanding shall be
entitled to be paid out of the assets of the Corporation available for distribution to its
stockholders, before any payment shall be made to the holders of Series Preferred Stock, Common
Stock or any other class or series of stock ranking on liquidation junior to the 12% Preferred
Stock by reason of their ownership thereof, an amount equal to $600 (the “Liquidation Value”) per
share (subject to appropriate adjustment in the event of any stock dividend, stock split,
combination or other similar recapitalization affecting such shares) plus accrued but unpaid
dividends (and, in the event that such payment shall be made on a date other
-3-
than a Quarterly Dividend Date, together with an additional dividend, at the rate of twelve percent
(12%) per annum on the Liquidation Value thereof, in respect of the period from the last Quarterly
Dividend Date to and including the date of such payment). If upon any such liquidation,
dissolution or winding up of the Corporation the assets of the Corporation available for
distribution to its stockholders shall be insufficient to pay the holders of shares of 12%
Preferred Stock the full amount to which they shall be entitled, the holders of shares of 12%
Preferred Stock and any class or series of stock ranking on liquidation on a parity with the 12%
Preferred Stock shall share ratably in any distribution of such assets and funds of the Corporation
in proportion to the respective amounts which would otherwise be payable in respect of the shares
held by them upon such distribution if all amounts payable on or with respect to such shares were
paid in full.
(ii) In the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Corporation, after payment shall have been made to the holders of shares of 12% Preferred Stock
of the full amount to which they are entitled as aforesaid, the holders of the shares of Series B
Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available
for distribution to its stockholders, before any payment shall be made to the holders of Series A
Stock or Common Stock or any other class or series of stock ranking on liquidation junior to the
Series B Stock by reason of their ownership thereof, an amount equal to $6.50 per share (subject to
appropriate adjustment in the event of any stock dividend, stock split, combination or other
similar recapitalization affecting such shares) plus accrued but unpaid dividends. If upon any
such liquidation, dissolution or winding up of the Corporation the remaining assets of the
Corporation available for distribution to its stockholders shall be insufficient to pay the holders
of shares of Series B Stock the full amount to which they shall be entitled, the holders of shares
of Series B Stock and any class or series of stock ranking on liquidation on a parity with the
Series B Stock shall share ratably in any distribution of the remaining assets and funds of the
Corporation in proportion to the respective amounts which would otherwise be payable in respect of
the shares held by them upon such distribution if all amounts payable on or with respect to such
shares were paid in full.
(iii) In the event of any liquidation, dissolution or winding up of the Corporation, after
payment shall have been made to the holders of the shares of 12% Preferred Stock and Series B Stock
of the full amount to which they are entitled as aforesaid, the holders of the shares of Series A
Stock shall be entitled to be paid out of the assets of the Corporation available for distribution
to its stockholders, before any payment shall be made to the holders of Common Stock or any other
class or series of stock ranking on liquidation junior to the Series A Stock (such
-4-
Common
Stock and other stock being collectively referred to as “Junior Stock”) an amount equal to
$1.40 per share (subject to appropriate adjustment in the event of any stock dividend, stock split,
combination or other similar recapitalization affecting such shares) plus accrued but unpaid
dividends. If upon any such liquidation, dissolution or winding up of the Corporation the remaining
assets of the Corporation available for distribution to its stockholders shall be insufficient to
pay the holders of the shares of Series A Stock the full amount to which they shall be entitled,
the holders of shares of Series A Stock and any class or series of stock ranking on liquidation on
a parity with the Series A Stock shall share ratably in any distribution of the remaining assets
and funds of the Corporation in proportion to the respective amounts which would otherwise be
payable in respect of the shares held by them upon such distribution if all amounts payable on or
with respect to such shares were paid in full.
(b) After the payment of all preferential amounts required to be paid to the holders of the
12% Preferred Stock, and the Series Preferred Stock, upon the liquidation, dissolution or winding
up of the Corporation, the holders of the shares of Junior Stock then outstanding shall be entitled
to receive the remaining assets and funds of the Corporation available for distribution to its
stockholders.
(c) The merger or consolidation of the Corporation into or with another corporation (except if
the Corporation is the surviving entity and is not owned or controlled by any other corporation or
entity), or the sale of all or substantially all the assets of the Corporation, shall be deemed to
be a liquidation, dissolution or winding up of the Corporation for purposes of this Section 2
unless such merger or consolidation is not intended to effect a change in the ownership or control
of the Corporation or of its assets and is not intended to alter
materially the business or assets of the Corporation.
3. Voting
(a) Except as provided by law, by the provisions of subsections 3(b) and 3(c) below or by the
provisions establishing any other series of Preferred Stock, (i) each holder of outstanding shares
of Series Preferred Stock shall be entitled to the number of votes equal to the number of whole
shares of Common Stock into which the shares of Series Preferred Stock held by such holder are
convertible (as adjusted from time to time pursuant to Section 4 hereof), at each meeting of
stockholders of the Corporation (and for written actions of stockholders in lien of meetings) with
respect to any and all matters presented to the stockholders of the Corporation for their action or
consideration and (ii) the holders of 12% Preferred Stock shall not be entitled to vote with
respect to any matters presented to the stockholders of the Corporation for their action or
consideration. The holders of Series Preferred Stock shall vote together with
the holders of Common
Stock as a single class.
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(b) For so long as any shares of the 12% Preferred Stock shall remain outstanding, the holders
of shares of the 12% Preferred Stock, voting separately as a class, shall be entitled to elect
one-half of the number of directors which the Corporation would have (fixed by or in accordance
with the By-Laws of the Corporation) if there were no vacancies and shall be entitled to remove any
director so elected. Except as required by law or as set forth in subsection 3(c) below, the
holders of shares of the 12% Preferred Stock shall not be entitled to vote on any other matter on
which stockholders are entitled or permitted to vote; provided, however, that so long as any shares
of the 12% Preferred Stock shall be outstanding, affirmative action by the holders of the 12%
Preferred Stock, voting separately as a class, shall be required to amend this Restated Certificate
of Incorporation so as to increase or decrease the aggregate number of authorized shares of the 12%
Preferred Stock, increase or decrease the par value of the shares of the 12% Preferred Stock or
alter or change the powers, preferences or special rights of the shares of the 12% Preferred Stock
so as to affect them adversely. At all meetings of stockholders of the Corporation at which the
holders of the 12% Preferred Stock are entitled to vote, the presence in person or by proxy of
holders of a majority of the 12% Preferred Stock issued and outstanding as of the record date for
such meeting shall be required to constitute a quorum for the transaction of the business with
respect to which the holders of the 12% Preferred Stock are entitled to vote, and at all such
meetings (and for written actions of the holders of the 12% Preferred Stock in lieu
of meetings) the vote, in person or by proxy (or given in writing), of holders of a majority
of the 12% Preferred Stock issued and outstanding as of the record date for such meeting (or as of
the date of such written action) shall constitute the action of the holders of the 12% Preferred
Stock.
(c) The Corporation shall not amend, alter or repeal the preferences, special rights or other
powers of any series of Preferred Stock outstanding so as to affect adversely such series without
the written consent or affirmative vote of the holders of a majority of the then outstanding shares
of such series, given in writing or by vote at a meeting, consenting or voting (as the case may be)
separately as a class. For this purpose, without limiting the generality of the foregoing, the
authorization or-issuance of any series of Preferred Stock with preference or priority over such
series as to the right to receive either dividends or amounts distributable upon liquidation,
dissolution or winding up of the Corporation shall be deemed to affect adversely such series. The
number of authorized shares of any series of Preferred Stock outstanding may be increased or
decreased (but not below the number of shares then outstanding) by the affirmative vote of the
holders of a majority of the then outstanding shares of such series of Preferred Stock voting as a
separate class.
4. Optional
Conversion. The holders of the Series Preferred Stock shall have
conversion rights as follows (the “Conversion Rights”) :
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(a) Right to Convert. Each share of Series Preferred Stock shall be convertible, at
the option of the holder thereof, at any time and from time to time,
into such number of fully paid
and nonassessable shares of Common Stock as is determined by dividing $1.40 in the case of the
Series A Stock and $6.50 in the case of the Series B Stock by the respective Conversion Prices of
the Series A Stock and the Series B Stock (as defined below) in effect at the time of conversion.
The conversion price at which shares of Common Stock shall be deliverable upon conversion of Series
Preferred Stock without the payment of additional consideration by the holder thereof (the
“Conversion Price”) shall initially be $1.40 in the case of
the Series A Stock and $6.50 in the
case of the Series B Stock. Such initial Conversion Price,
and the rate at which shares of Series Preferred Stock may be converted into shares of Common
Stock, shall be subject to adjustment as provided below.
In the event of a liquidation of the Corporation, the Conversion Rights shall terminate at
the close of business on the first full day preceding the date fixed for the payment of any
amounts distributable on liquidation to the holders of Series Preferred Stock.
(b) Fractional Shares. No fractional shares of Common Stock shall be issued upon
conversion of the Series Preferred Stock. In lieu of any fractional shares to which the holder
would otherwise be entitled, the Corporation shall pay cash equal to such fraction multiplied by
the then effective Conversion Price.
(c) Mechanics of Conversion.
(i) In order for a holder of Series Preferred Stock to convert shares of Series Preferred
Stock into shares of Common Stock, such holder shall surrender the certificate or certificates for
such shares of Series Preferred Stock, at the office of the transfer agent for the Series Preferred
Stock (or at the principal office of the Corporation if the Corporation serves as its own transfer
agent), together with written notice that such holder elects to convert all or any number of the
shares of the Series Preferred Stock represented by such certificate or certificates. Such notice
shall state such holder’s name or the names of the nominees in which such holder wishes the
certificate or certificates for shares of Common Stock to be issued. If required by the
Corporation, certificates surrendered for conversion shall be endorsed or accompanied by a written
instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed by
the registered holder or his or its attorney duly authorized in writing. The date of receipt of
such certificates and notice by the transfer agent (or by the Corporation if the Corporation serves
as its own transfer agent) shall be the conversion date (“Conversion Date”). The Corporation
shall, as soon as practicable after the Conversion Date, issue and deliver at such
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office to such holder of Series Preferred Stock, or to his or its nominees, a certificate or
certificates for the number of shares of Common Stock to which such holder shall be entitled,
together with cash in lieu of any fraction of a share.
(ii) The Corporation shall at all times when the Series
Preferred Stock shall be outstanding,
reserve and keep available out of its authorized but unissued stock, for the purpose of effecting
the conversion of the Series Preferred Stock, such number of its duly authorized shares of Common
Stock as shall from time to time be sufficient to effect the conversion of all outstanding Series
Preferred Stock. Before taking any action which would cause an adjustment reducing the Conversion
Price below the then par value of the shares of Common Stock issuable upon conversion of the Series
Preferred Stock, the Corporation will take any corporate action which
may, in the opinion of its
counsel, be necessary in order that the Corporation may validly and legally issue fully paid and
nonassessable shares of Common Stock at such adjusted Conversion Price.
(iii) Upon
any such conversion, no adjustment to the Conversion Price shall be made for any
accrued and unpaid dividends on the Series Preferred Stock surrendered for conversion or on the
Common Stock delivered upon conversion.
(iv) All shares of Series Preferred Stock which shall have been surrendered for conversion as
herein provided shall no longer be deemed to be outstanding and all rights with respect to such
shares, including the rights, if any, to receive notices and to vote, shall immediately cease and
terminate on the Conversion Date, except only the right of the holders thereof to receive shares of
Common Stock in exchange therefor and payment of any accrued and
unpaid dividends thereon. Any
shares of Series Preferred Stock so converted shall be retired and cancelled and shall not be
reissued, and the Corporation may from time to time take such appropriate action as may be
necessary to reduce the authorized Series Preferred Stock accordingly.
(d) Adjustments to Conversion Price for Diluting Issues:
(i) Special Definitions. For purposes of this Subsection 4(d), the following
definition shall apply:
(A) “Option” shall mean rights, options or
warrants to subscribe for, purchase or otherwise acquire Common Stock or Convertible Securities,
excluding (1) options and/or stock awards granted to employees or consultants of the Corporation
pursuant to any employee option plan and/or employee stock purchase plan adopted by the Board of
Directors, and (2) an option granted to W.R. Grace & Co. to purchase 3,070,430 shares of Common
Stock at an exercise price of $1.09 per share (subject, in
-8-
the case of any options or shares excluded hereunder to appropriate adjustment for any stock
dividend, stock split, combination or other similar recapitalization affecting such shares).
(B) “Original Issue Date” shall mean the date on which a share of Series
Preferred Stock was first issued.
(C) “Convertible Securities” shall mean any evidences of indebtedness,
shares (other than Common stock and Series Preferred Stock) or other securities directly or
indirectly convertible into or exchangeable for Common Stock.
(D) “Additional Shares of Common Stock” shall
mean all shares of Common Stock issued (or, pursuant to Subsection 4(d)(iii) below, deemed to
be issued) by the Corporation after the Original Issue Date, other than shares of Common Stock
issued or issuable:
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(I) |
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upon conversion of
shares of Series Preferred Stock outstanding on the
Original Issue Date; |
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(II) |
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as a dividend or distribution on
Series Preferred Stock; |
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(III) |
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by reason of a dividend, stock split, split-up or other
distribution on shares of Common Stock excluded from
the definition of Additional Shares of Common Stock
by the foregoing clauses (I) and (II) or this clause
(III); or |
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(IV) |
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upon the exercise
of options or stock awards excluded from the definition
of “Option” in Subsection 4(d)(i)(A). |
(ii) No Adjustment of Conversion Price. No
adjustment in the number of shares of Common Stock into which the Series Preferred Stock is
convertible shall be made, by adjustment in the applicable Conversion
Price thereof: (a)
unless the consideration per share (determined pursuant to Subsection 4(d)(v)) for an
Additional Share of Common Stock issued or deemed to be issued by the Corporation is less than
the applicable Conversion Price in effect on the date of, and immediately prior to, the issue
of such Additional Shares, or (b) if prior to such issuance, the Corporation receives written
notice from the holders of at least 66 2/3% of the then outstanding
shares of Series Preferred
Stock agreeing that no such adjustment shall be made as the result of the issuance of
Additional Shares of Common Stock.
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(iii) Issue of Securities Deemed Issue of Additional Shares of
Common Stock.
(A) Options
and Convertible Securities. If the Corporation at any time or from
time to time after the Original Issue Date shall issue any Options or Convertible
Securities or shall fix a record date for the determination of holders of any class of
securities entitled to receive any such Options or Convertible Securities, then the
maximum number of shares of Common Stock (as set forth in the instrument relating thereto
without regard to any provision contained therein for a subsequent adjustment of such
number) issuable upon the exercise of such Options or, in the case of Convertible
Securities and Options therefor, the conversion or exchange of such Convertible
Securities, shall be deemed to be Additional Shares of Common Stock issued as of the time
of such issue or in case such a record date shall have been fixed, as of the close of
business on such record date, provided that Additional Shares of Common Stock shall not
be deemed to have been issued unless the consideration per share (determined pursuant to
Subsection 4(d)(v) hereof) of such Additional Shares of Common Stock would be less than
the applicable Conversion Price in effect on the date of and immediately prior to such
issue, or such record date, as the case may be, and provided further that in any such
case in which Additional Shares of Common Stock are deemed to be
issued:
(I) no further adjustment in the
Conversion Price shall be made upon the subsequent issue of Convertible Securities or shares
of Common Stock upon the exercise of such Options or conversion or exchange of such
Convertible Securities;
(II) if such Options or Convertible
Securities by their terms provide, with the passage of time or otherwise, for any increase in the
consideration payable to the Corporation, or decrease in the number of shares of Common Stock
issuable, upon the exercise, conversion or exchange thereof, the Conversion Price computed upon the
original issue thereof (or upon the occurrence of a record date with respect thereto), and any
subsequent adjustments based thereon, shall, upon any such increase or decrease becoming effective,
be recomputed to reflect such increase or decrease insofar as it affects such Options or
the
rights of conversion or exchange under such Convertible Securities;
(III) no readjustment pursuant to clause
(II) above shall have the effect of increasing the Conversion Price to an amount which
exceeds the lower of (i) the Conversion Price on the original adjustment date, or (ii)
the Conversion Price that would have resulted from any issuance of Additional Shares of
Common Stock between the original adjustment date and such readjustment date; and
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(IV) upon the expiration or termination
of any unexercised Option, the Conversion Price shall not be readjusted, but the Additional Shares
of Common Stock deemed issued as the result of the original issue of such Option shall not be
deemed issued for the purposes of any subsequent adjustment of the Conversion Price.
(B) Stock Dividends and Subdivisions. In the event the Corporation at any time or from
time to time after the Original Issue Date shall declare or pay any dividend on the Common Stock
payable in Common Stock, or effect a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in Common Stock), then Additional
Shares of Common Stock shall be deemed to have been issued:
(I) in the case of any such dividend,
immediately after the close of business on the record date for the determination of holders of any
class of securities entitled to receive such dividend, or
(II) in the case of any subdivision, at
the close of business on the date immediately prior to the date upon which such corporate action
becomes effective.
If such record date shall have been fixed and such dividend shall not have been fully paid on
the date fixed therefor, the adjustment previously made in the applicable Conversion Price which
became effective on such record date shall be cancelled as of the close of business on such record
date, and thereafter the Conversion Price shall be adjusted pursuant to this Subsection 4(d)(iii)
as of the time of actual payment of such dividend.
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(iv) |
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Adjustment of Conversion Price Upon
Issuance of Additional Shares of Common Stock. |
In the event the Corporation shall issue Additional Shares of Common Stock (including
Additional Shares of Common Stock deemed to be issued pursuant to Subsection 4(d)(iii)), without
consideration or for a consideration per share less than the applicable Conversion Price in effect
on the date of and immediately prior to such issue, then and in such event, such Conversion Price
shall be reduced, concurrently with such issue, to a price (calculated to the nearest cent)
determined by multiplying such Conversion Price by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding immediately prior to such issue plus the number of
shares of Common Stock which the aggregate consideration received by the Corporation for the total
number of Additional Shares of Common Stock so issued would purchase
at such Conversion Price; and
the denominator of which shall be the number of shares of Common Stock
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outstanding immediately prior to such issue plus the number of such Additional Shares of
Common
Stock so issued; provided that, for the purpose of this Subsection 4(d)(iv), all shares of
Common Stock issuable upon conversion of shares of Series Preferred Stock outstanding immediately
prior to such issue shall be deemed to be outstanding, and immediately after any Additional Shares
of Common Stock are deemed issued pursuant to Subsection 4(d)(iii) (whether or not excluded from
the definition of “Additional Shares of Common Stock” by
virtue of clauses (II), (III) and (IV) of
Subsection 4(d)(i)(D)), such Additional Shares of Common Stock shall
be deemed to be outstanding;
provided further, that in the event the Corporation, without receiving any
consideration, declares a dividend on Common Stock payable in Common Stock or effects a subdivision
of the outstanding shares of Common Stock into a greater number of shares of Common Stock, the
Conversion Price in effect immediately prior to such stock dividend or subdivision shall, on the
date that Additional Shares of Common Stock are deemed issued pursuant to Subsection 4(d)(iii)(B),
be decreased proportionately; and provided further, that the applicable Conversion
Price shall not be so reduced at such time if the amount of such reduction would be an amount less
than $.05, but any such amount shall be carried forward and reduction with respect thereto made at
the time of and together with any subsequent reduction which, together with such amount and any
other amount or amounts so carried forward, shall aggregate $.05 or more.
(v) Datermination of Consideration. For purposes of this Subsection 4(d), the
consideration received by the Corporation for the issue of any Additional Shares of Common Stock
shall be computed as follows:
(A) Cash
and Property. Such consideration shall:
(I) insofar as it consists of cash, be
computed at the aggregate of cash received by the Corporation, excluding amounts paid or payable
for accrued interest or accrued dividends;
(II) insofar as it consists of property
other than cash, be computed at the fair market value thereof at the time of such issue, as
determined in good faith by the Board of Directors; and
(III) in the event Additional Shares of
Common Stock are issued together with other shares or securities or other assets of the Corporation
for consideration which covers both, be the proportion of such consideration so received, computed
as provided in clauses (I) and (II) above, as determined in good faith by the Board of Directors.
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(B) Options and Convertible Securities. The
consideration per share received by the Corporation for Additional Shares of Common Stock deemed to
have been issued pursuant to Subsection 4(d)(iii)(A), relating to Options and Convertible
Securities, shall be determined by dividing
(x) the total amount, if any, received
or receivable by the Corporation as consideration for the issue of such Options or Convertible
Securities, plus the minimum aggregate amount of additional consideration (as set forth in the
instruments relating thereto, without regard to any provision contained therein for a subsequent
adjustment of such consideration) payable to the Corporation upon the exercise of such Options or
the conversion or exchange of such Convertible Securities, or in the case of Options for
Convertible Securities, the exercise of such Options for Convertible Securities and the conversion
or exchange of such Convertible Securities, by
(y) the maximum number of shares of
Common Stock (as set forth in the instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such number) issuable upon the exercise of such
Options or the conversion or exchange of such Convertible Securities.
(C) Stock Dividends and Stock Subdivisions.
Any Additional Shares of Common Stock deemed to have been issued pursuant to Subsecticn
4(d)(iii)(B), relating to stock dividends and stock subdivisions, shall be deemed to have been
issued for no consideration.
(vi) Adjustment for Combinations or Consolidation of Common Stock.
In the event the outstanding shares of Common Stock shall be combined or consolidated, by
reclassification or otherwise, into a lesser number of shares of Common Stock, the applicable
Conversion Price in effect immediately prior to such combination or consolidation shall,
concurrently with the effectiveness of such combination or consolidation, be increased
proportionately.
(e) No Impairment. The Corporation will not, by amendment of its Certificate of
Incorporation or through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to be observed or performed hereunder by the
Corporation, but will at all times in good faith assist in the carrying out of all the provisions
of this Section 4 and in the taking of all such action as may be necessary or appropriate in order
to protect the Conversion Rights of the holders of the Series Preferred Stock against impairment.
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(f) Certificate as to
Adjustments. Upon the occurrence of each adjustment or
readjustment of the Conversion Price pursuant to this Section 4, the Corporation at its
expense shall promptly compute such adjustment or readjustment in accordance with the terms hereof
and furnish to each holder of Series Preferred Stock a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or readjustment is based.
The Corporation shall, upon the written request at any time of any holder of Series Preferred
Stock, furnish or cause to be furnished to such holder a similar certificate setting forth (i) such
adjustments and readjustments, (ii) the Conversion Price then in effect, and (iii) the number of
shares of Common Stock and the amount, if any, of other property which then would be received upon
the conversion of Series Preferred Stock.
(g) Notice of Record Date. In the event:
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(i) |
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that the Corporation declares a dividend (or
any other distribution) on its Common Stock payable in Common Stock or
other securities of the Corporation; |
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(ii) |
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that the Corporation subdivides or combines its
outstanding shares of Common Stock; or |
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(iii) |
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of the involuntary or voluntary dissolution,
liquidation or winding up of the Corporation; |
then the Corporation shall cause to be filed at its principal office or at the office of the
transfer agent of the Series Preferred Stock, and shall cause to be mailed to the holders of the
Series Preferred Stock at their last addresses as shown on the records of the Corporation or such
transfer agent, at least ten days prior to the record date specified
in (A) below or twenty days
before the date specified in (B) below, a notice stating
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(A) |
|
the record date of such dividend, distribution or subdivision,
or, if a record is not to be taken, the date as of which the holders of Common
Stock of record to be entitled to such dividend, distribution or subdivision
are to be determined, or |
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(B) |
|
the date on which such dissolution, liquidation or winding up
is expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities or other property deliverable upon such
dissolution, liquidation or winding up. |
-14-
5. Mandatory Conversion.
(a) The Corporation may, at its option, require all
(and not less than all) holders of shares of Series B stock then
outstanding to convert their shares of Series B Stock into shares
of Common Stock, at the than effective Conversion Price pursuant
to Section 4, at any time on or after the closing of the sale of
shares of Common Stock in a public offering pursuant to an effective registration statement
under the Securities Act of 1933, as amended, resulting in at least $5,000,000 of gross proceeds.
(b) The Corporation may, at its option, require all
(and not less than all) holders of shares of Series B Stock then
outstanding to convert their shares of Series B Stock into shares
of Common Stock, at the then effective Conversion Price pursuant
to Section 4, upon the satisfaction by the Corporation of either
of the two financial tests set forth below and receipt of a
written certificate from the Corporation’s independent auditors
stating that the applicable financial test has been satisfied, the
date such test was satisfied (the “Determination Date”) and the calculation used in determining such
satisfaction. The Corporation shall have the rights
specified in this subsection 5(b) if Test No. 1 below is
satisfied at any time after the date of this
Restated Certificate of Incorporation or if Test No. 2 below is
satisfied on or before December 31, 1988. If Test No. 2 is not
satisfied on or before December 31, 1988, the Corporation shall have the rights specified herein
only if and when Test No. 1 is satisfied. The calculations of
Debt, Total Capital Employed, Excess Cash and Cash on Hand (as such terms are defined below) shall
be made with respect to the Corporation and its subsidiaries on a consolidated basis, except as
specifically noted.
Test No. 1:
On the Determination Date, Debt as a percentage of Total Capital Employed shall
not exceed 50%, where:
A. “Debt” is defined as the sum of (i) indebtedness for borrowed money (including
short- and long-term portions); (ii) obligations under leases which are recorded as capital
leases (including short– and long–term portions); (iii) any additional funds provided to the
Corporation by W. R. Grace & Co. from the date on which the first shares of 12% Preferred Stock
were issued (the “Issue Date”) until the Determination Date, including funds provided under the
terms of the Capitalization Agreement, dated the Issue Date, between
W. R. Grace & Co. and
Manufacturers Hanover Trust Company, as Agent (“MHTC”), but excluding any funds paid to
Holding upon exercise of an option to purchase 3,070,430 shares of Common Stock of Holding granted
to Grace on the Issue Date; and (iv) an amount equal to the difference between (x) the
cumulative dividend on the 12% Preferred Stock from the Issue Date
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until the Determination Date (the “Preferred Dividend”), and (y) the amount of the Preferred
Dividend actually paid in cash or in additional shares of 12% Preferred Stock by the Corporation
prior to the Determination Date.
B. “Total
Capital Employed” is defined as the sum of (i) Debt; plus (ii) the
aggregate capital of the Corporation at the Issue Date; plus (iii) cumulative net income
(excluding net gains from the sale of assets but including losses from the sale of assets); minus
(iv) the Preferred Dividend.
Test No. 2:
Excess Cash on the Determination Date shall equal or exceed $100 million, where “Excess Cash”
is defined as an amount equal to (i) the cumulative net income (excluding net gains from the sale
of assets but including losses from the sale of assets) from the Issue Date until the Determination
Date; (ii) plus depreciation, amortization and deferred taxes
for such period; (iii) adjusted for
changes in working capital during such period (increases constituting a deduction from net income
and decreases constituting an addition to net income); (iv) minus capital expenditures and
capitalized acquisition costs during such period; (v) plus Cash
on Hand (as defined below) on the
Issue Date. “Cash on Hand” is defined as the difference between the total cash, deposits and
marketable securities of the Corporation (including for this purpose the $315,000,000 available to
the Corporation under the Credit Agreement, dated as of December 14, 1984, among the Corporation,
MHTC and the banks named therein (the “Credit Agreement”)) and an amount equal to the sum of the
following : (A) the net proceeds from the sale of capital assets of the Corporation between August
23, 1984 and the Issue Date; (E) the fees and expenses incurred or contracted for at or before the
Issue Date In connection with the merger of National Medical Care, Inc. (“NMC”) into NMC
Acquisition Corp., Including (by way of example but not limitation) legal, accounting, printing and
certain banking fees due at or before the Issue Date and the total contribution to be made to
Dartmouth College, but not including banking fees to be incurred under the Credit Agreement after
such time and not including fees and expenses paid by NMC prior to the Issue Date; (C) the cash
payments (whether or not payable at the Issue Date) to be made for shares of, and retirement of
options to acquire shares of, NMC; (D) the amount of indebtedness of NMC outstanding immediately
prior to the Issue Date which is repaid at or before the Issue Date;
(E) the cash, deposits and
marketable securities of Dartmouth Insurance Company LTD. on the Issue Date; and (F) $24,000,000.
(c) The Corporation shall not have the right to require the holders of shares of Series A Stock to
convert their shares into Common Stock.
(d) All holders of record of shares of Series B Stock will be given at least 10 days’ prior written
notice of the date
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fixed and the place designated for mandatory conversion of all such shares of Series B Stock
pursuant to this Section 5. Such notice will be sent by first class or registered mail, postage
prepaid, to each record holder of Series B Stock at such holder’s address last shown on the records
of the transfer agent for the Series B Stock (or the records of the Corporation, if it serves as
its own transfer agent). On or before the date fixed for conversion, each holder of shares of
Series B Stock shall surrender his or its certificate or certificates for all such shares to the
Corporation at the place designated in such notice, and shall thereafter receive certificates for
the number of shares of common Stock to which such holder is entitled pursuant to this Section 5.
On the date fixed for conversion, all rights with respect to the
Series B Stock so converted,
including the rights, if any, to receive notices and vote, will terminate, except only the rights
of the holders thereof, upon surrender of their certificate or certificates therefor, to receive
certificates for the number of shares of Common Stock into which such Series B Stock has been
converted, and payment of any accrued but unpaid dividends thereon. If so required by the
Corporation, certificates surrendered for conversion shall be endorsed or accompanied by written
instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed by
the registered holder or by his or its attorney duly authorized in writing. As soon as practicable
after the date of such mandatory conversion and the surrender of the certificate or certificates
for Series B Stock, the Corporation shall cause to be issued and delivered to such holder, or on
his or its written order, a certificate or certificates for the number of full shares of Common
Stock issuable on such conversion in accordance with the provisions hereof and cash as provided in
Subsection 4(b) in respect of any fraction of a share of Common Stock otherwise issuable upon such
conversion.
(d) All certificates evidencing shares of Series B Stock which are required to be surrendered
for conversion in accordance with the provisions hereof shall, from and after the date such
certificates are so required to be surrendered, be deemed to have been retired and cancelled and
the shares of Series B Stock represented thereby converted into Common Stock for all purposes,
notwithstanding the failure of the holder or holders thereof to surrender such certificates on or
prior to such date. The Corporation may thereafter take such appropriate action as may be necessary
to reduce the authorized Series B Stock accordingly.
6. Optional Redemption.
(a) The Corporation may, at the option of its Board of Directors, redeem, out of the assets
of the Corporation legally available for that purpose, on any Quarterly Dividend Date, all or any
part of the outstanding shares of the 12% Preferred Stock, upon notice duly given as hereinafter
provided, by paying for each such share, in cash, an amount equal to the Liquidation Value
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there of (subject to appropriate adjustment for stock splits, stock dividends, combinations or
other similar recapitalizations affecting such shares) together with an amount equal to any accrued
but unpaid dividends on such shares (hereinafter referred to as the “Redemption Price”); provided,
however, that any such redemption of less than all of the shares of the 12% Preferred Stock then
outstanding, shall be of 1,700 shares of the 12% Preferred Stock or of any whole multiple of 1,700
shares.
(b) In the event of any redemption of only a part of
the then outstanding 12% Preferred Stock, the Corporation shall
effect such redemption pro rata among the holders thereof based on
the number of shares of 12% Preferred Stock held by such holders
on the date of the Redemption Notice (as defined below).
(c) At least 30 days prior to the date fixed for any
redemption of 12% Preferred Stock (hereinafter referred to as the
“Redemption Date”), written notice shall be mailed, by first class
or registered mail, postage prepaid, to each holder of record of
12% Preferred Stock to be redeemed, at his or its address last
shown on the records of the transfer agent of the 12% Preferred
Stock (or the records of the Corporation, if it serves as its own
transfer agent), notifying such holder of the election of the
Corporation to redeem such shares, specifying the Redemption Date
and calling upon such holder to surrender to the Corporation, in
the manner and at the place designated, his or its certificate or
certificates representing the shares to be redeemed (such notice
is hereinafter referred to as the “Redemption Notice”). On or
prior to the Redemption Date, each holder of 12% Preferred Stock
to be redeemed shall surrender his or its certificate or
certificates representing such shares to the Corporation, in the
manner and at the place designated in the Redemption Notice, and
thereupon the Redemption Price of such shares shall be payable to
the order of the person whose name appears on such certificate or
certificates as the owner thereof and each surrendered certificate
shall be cancelled. In the event less than all the shares
represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares.
From and after the Redemption Date, unless there shall have been a
default in payment of the Redemption Price, all rights of the
holders of the 12% Preferred Stock designated for redemption in
the Redemption Notice as holders of 12% Preferred Stock of the
Corporation (except the right to receive the Redemption Price
without interest upon surrender of their certificate or
certificates) shall cease with respect to such shares, and such
shares shall not thereafter be transferred on the books of the
Corporation or be deemed to be outstanding for any purpose
whatsoever.
(d) On or prior to the Redemption Date, the Corporation
shall deposit the Redemption Price of all shares of 12% Preferred
Stock designated for redemption in the Redemption Notice and not
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yet redeemed with a bank or trust company having aggregate capital and surplus in excess of
$25,000,000 as a trust fund for the benefit of the respective holders of the shares designated for
redemption and not yet redeemed, with irrevocable instructions and authority to the bank or trust
company to pay the Redemption Price for such shares to their respective holders on or after the
Redemption Date upon receipt of notification from the Corporation that such holder has surrendered
his or its share certificate to the Corporation. The balance of any monies deposited by the
Corporation pursuant to this Subsection 6(d) remaining unclaimed at the expiration of one year
following the Redemption Date shall thereafter be returned to the Corporation upon its request
expressed in a resolution of its Board of Directors.
(e) Subject to the provisions hereof, the Board of Directors of the Corporation shall have
authority to prescribe the manner in which 12% Preferred Stock shall be redeemed from time to time.
Any shares of 12% Preferred Stock so redeemed shall permanently be retired, shall no longer be
deemed outstanding and shall not under any circumstances be reissued, and the Corporation may from
time to time take such appropriate action as may be necessary to reduce the authorized 12%
Preferred Stock accordingly. Nothing herein contained shall prevent or restrict the purchase by the
Corporation, from time to time either at public or private sale, of the whole or any part of the
12% Preferred Stock at such price or prices as the Corporation may determine, subject to the
provisions of applicable law.
7. Mandatory Redemption.
(a) Irrespective of the provisions of Section 6, the
Corporation shall redeem, out of the assets of the Corporation
legally available for that purpose, in installments on December 1
of 1992, 1993 and 1994 (each such date being referred to herein as
a “Mandatory Redemption Date”), the outstanding shares of 12%
Preferred Stock, upon notice duly given as hereinafter provided,
by paying for each such share, in cash, an amount equal to the
Liquidation Value thereof (subject to appropriate adjustment in
the event of any stock dividend, stock split, combination or other
similar recapitalization affecting such shares) together with an
amount equal to any accrued but unpaid dividends on such share
(the “Mandatory Redemption Price”). The number of shares of the
12% Preferred Stock to be redeemed in each such installment shall
be equal to one-third of the aggregate number of shares of the 12%
Preferred Stock issued prior to the first Mandatory Redemption
Date (the first two such installments to be rounded, if necessary,
upward to the next whole share and the third such installment to
be equal to the remaining balance).
(b) If the funds of the Corporation legally available
for redemption of 12% Preferred Stock on any Mandatory Redemption
Date are insufficient to redeem the number of shares of 12%
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Preferred Stock required under this Section 7 to be redeemed on such date, those funds which are
legally available will be used to redeem the maximum possible number of such shares of 12%
Preferred Stock ratably on the basis of the number of shares of 12% Preferred Stock which would be
redeemed on such date if the funds of the Corporation legally available therefor had been
sufficient to redeem all shares of 12% Preferred Stock required to be redeemed on such date. At any
time thereafter when additional funds of the Corporation become legally available for the
redemption of 12% preferred Stock, such funds will be used, on the next succeeding Quarterly
Dividend Date to redeem the balance of the shares which the Corporation was theretofore obligated
to redeem, ratably on the basis set forth in the preceding sentence.
(c) The
Corporation shall be entitled, at its option, to credit against the number of
shares of 12% Preferred Stock required to be redeemed from any holder on any Mandatory Redemption
Date any shares of 12% Preferred Stock previously redeemed from such holder pursuant to Section 6
and not previously so credited.
(d) The Corporation shall provide notice of any redemption of 12% Preferred Stock pursuant to
this Section 7 specifying the time and place of redemption and the Mandatory Redemption
Price, by first class or registered mail, postage prepaid, to each
holder of record of 12% Preferred Stock at the address for such
holder last shown on the records of the transfer agent therefor
(or the records of the Corporation, if it serves as its own
transfer agent), not more than 60 nor less than 30 days prior to
the date on which such redemption is to be made. If less than all
12% Preferred Stock owned by such holder is then to be redeemed,
the notice will also specify the number of shares which are to be
redeemed. Upon mailing any such notice of redemption, the Corporation will become obligated to
redeem at the time of redemption
specified therein all 12% Preferred Stock specified therein. In
case less than all 12% Preferred Stock represented by any
certificate is redeemed in any redemption pursuant to this Section
7, a new certificate will be issued representing the unredeemed
12% Preferred Stock without cost to the holder thereof.
(e) No share of 12% Preferred Stock as to which notice
of redemption has been given is entitled to any dividends declared
after its redemption on the Mandatory Redemption Date, and after
such redemption all rights of the holder of such share as a
stockholder of the Corporation by reason of the ownership of such
share will cease, except the right to receive the Mandatory
Redemption Price of such share, without interest, upon
presentation and surrender of the certificate representing such
share, and such share will not from and after redemption on such
Mandatory Redemption Date be deemed to be outstanding.
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(f) Any 12% Preferred Stock redeemed pursuant to this Section 7 will be cancelled and will
not under any circumstances be reissued, sold or transferred and the
Corporation may from time to
time take such appropriate action as may be necessary to reduce the authorized 12% Preferred Stock
accordingly.
(D) Each share of Common Stock issued and
outstanding shall have one vote. Except as otherwise provided in this
Article FOURTH or by law,
holders of Series Preferred Stock and holders of Common Stock shall vote together as a single
class. All rights accruing to the outstanding shares of capital stock of the Corporation not
expressly provided for to the contrary herein shall be vested in the Common Stock, including the
right, in the event of liquidation, dissolution or winding up of the Corporation, of the holders of
Common Stock to participate in the net assets of the Corporation remaining after the distribution
to holders of 12% Preferred Stock and Series Preferred Stock in accordance with the provisions of
Part (C) of this Article FOURTH.
FIFTH. In furtherance and not in limitation of powers conferred by statute, it is further
provided:
1. Election of directors need not be by written
ballot.
2. The Board of Directors is expressly authorized
to adopt, amend or repeal the By-Laws of the Corporation.
SIXTH. Whenever a compromise or arrangement is proposed between the Corporation and its
creditors or any class of them and/or between the Corporation and its stockholders or any class of
them, any court of equitable jurisdiction within the State of Delaware may, on the application in a
summary way of the Corporation or of any creditor or stockholder thereof, or on the application of
any receiver or receivers appointed for the Corporation under the provisions of section 291 of
Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or
receivers appointed for the Corporation under the provisions of section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of the stockholders
or class of stockholders of the Corporation, as the case may be, to be summoned in such manner as
the said court directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders of class of stockholders of the
Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization
of the Corporation as a consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the court to which said application
has been made, be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of the Corporation, as the case may be, and also on the
Corporation.
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SEVENTH. The Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Restated Certificate of Incorporation, in the manner now or hereafter prescribed
by statute, and all rights conferred upon stockholders herein are granted subject to this
reservation.
IN WITNESS WHEREOF,
we have hereunto subscribed our names and have affixed the seal of the
Corporation this 18thday of December, 1984.
[Seal]
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/s/ Constantine L. Hampers
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Constantine L. Hampers, M.D. |
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President |
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ATTEST:
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/s/ Ellen B. Corenswet
Ellen B. Corenswet,
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Assistant Secretary |
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COMMONWEALTH OF MASSACHUSETTS |
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COUNTY OF
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ss. : |
BE
IT REMEMBERED, that on this
18th day
of December, 1984, personally came before me,
[ILLEGIBLE] Notary Public in and for the County and Commonwealth aforesaid ,
Constantine L. Haxpers, President of NMC Holding Corp., a Delaware corporation, the
person who executed the foregoing certificate, known to me personally to be such and
he, the said Constantine L. Hampers as such President, duly executed said
certificate before me and acknowledged that said certificate was his act and deed,
that the facts stated therein are true, that the seal affixed to said certificate is
the corporate seal of said NMC Holding Corp., and that the execution,
acknowledgment, filing and recording of said certificate have been duly authorized
by resolution of the Board of Directors of the said corporation.
GIVEN
under my hand and seal of office, the day and year aforesaid.
Notary Public
My Commission Expires:
PAGE 1
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY CERTIFY THE ATTACHED
IS A TRUE AND CORRECT COPY OF CERTIFICATE OF OWNERSHIP OF THE “NMC HOLDING CORP.” A CORPORATION
ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, MERGING “NATIONAL MEDICAL CARE,
INC.” A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, PURSUANT TO
SECTION 253 OF THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE AS RECEIVED AND FILED IN THIS
OFFICE THE THE NINETEENTH DAY OF JUNE, A.D. 1985, AT 1 O’CLOCK P.M.
AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CORPORATION SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF DELAWARE
AND I DO HEREBY FURTHER CERTIFY THAT THE SAID “NMC HOLDING CORP.”, HAS RELINQUISHED ITS
CORPORATE TITLE AND ASSUMED IN PLACE
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/s/ Michael Harkins
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Michael Harkins, Secretary of State
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AUTHENTICATION:
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10554722 |
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851700123
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DATE:
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07/03/1985 |
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CONTINUED ON PAGE 2
PAGE 2
THEREOF “NATIONAL MEDICAL CARE, INC.”
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/s/ Michael Harkins
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Michael Harkins, Secretary of State
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AUTHENTICATION:
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10554722 |
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851700123
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DATE:
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07/03/1985 |
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CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
NATIONAL MEDICAL CARE, INC.
INTO
NMC HOLDING CORP.
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NMC Holding Corp., a corporation organized and existing under the laws of the State of
Delaware,
DOES HEREBY CERTIFY:
FIRST: That this corporation was incorporated on the 6th day of August, 1984, pursuant to the
General Corporation Law of the State of Delaware.
SECOND: That this corporation owns all of the outstanding shares of the stock of National
Medical Care, Inc., a corporation incorporated on the 25th day of July, 1969, pursuant to the
General Corporation Law of the State of Delaware;
THIRD: That this corporation, by the following resolutions of its Board of Directors, adopted
at a meeting held on the 9th day of May, 1985, voted to merge into itself National Medical Care,
Inc.:
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RESOLVED: |
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That, pursuant to section 253 of the Delaware General
Corporation Law, this Corporation merge into itself National Medical Care, Inc., a
Delaware corporation, all of whose stock is owned by this Corporation and that this
Corporation succeed to all the assets of National Medical Care, Inc., and assume all
of the obligations of National Medical Care, Inc.; and |
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FURTHER
RESOLVED: |
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That the proper officers of this Corporation be and they hereby are directed to
execute and acknowledge a Certificate of Ownership and Merger setting forth (1) a copy of the
resolutions authorizing the merger into this Corporation of National Medical Care, Inc. and
the assumption by this Corporation of the liabilities and obligations of National Medical
Care, Inc. and (2) a provision changing the name of this |
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Corporation to “National Medical Care, Inc.”, and the date of adoption thereof, and to
cause the same to be filed and recorded, all in accordance with sections 103 and 253
of the Delaware General Corporation Law, and to do all acts and things whatsoever,
whether within or without the State of Delaware, which may be in anywise necessary or
proper to effect said merger. |
FOURTH: Such merger shall become effective upon the date of filing of such documents with the
Secretary of the State of Delaware.
FIFTH: The name of the surviving corporation shall be “NATIONAL MEDICAL CARE, INC.”.
IN WITNESS WHEREOF, said NMC HOLDING CORP., has caused this certificate to be signed by
Constantine L. Hampers, M.D., its President, and attested by Timothy I. McFeeley, its Secretary,
this 14th day of June, 1985.
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NMC HOLDING CORP.
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By: |
/s/ Constantine L. Hampers
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Constantine L. Hampers, M.D. President |
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By: |
/s/ Timothy I. McFeeley
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Timothy I. McFeeley |
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Secretary |
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RECEIVED FOR RECORD
JUN 19 1985
LEO J. DUGAN, Jr., Recorder
PAGE 1
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY CERTIFY THE
ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF NATIONAL MEDICAL CARE, INC.
FILED IN THIS OFFICE ON THE NINTH DAY OF OCTOBER, A.D. 1986, AT 10 O’CLOCK A.M.
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/s/ Michael Harkins
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Michael Harkins, Secretary of State
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AUTHENTICATION:
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DATE:
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10/14/1986 |
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
(Pursuant to Section 242)
* * * *
National Medical Care, Inc., a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That the Board of Directors and Stockholders of said corporation, at meetings duly
held, adopted a resolution proposing and declaring advisable the following amendment to the
Restated Certificate of Incorporation of said corporation:
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RESOLVED: |
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That the Restated Certificate of Incorporation of
National Medical Care, Inc. be amended by deleting Test No. 2 in subsection 5(b)
of section (C) on page 16 of the Fourth Article and substituting therefore the
following Test No. 2:
Test No. 2
Excess Cash on the Determination Date shall equal or exceed $100 million, where
“Excess Cash” is defined as an amount equal to (i) the cumulative net income
(excluding net gains from the sale of assets but including losses from the sale of
assets) from the Issue Date until the Determination Date; (ii) plus depreciation,
amortization and deferred taxes for such period; (iii) adjusted for changes in
working capital during such period (increases constituting a deduction from net
income and decreases constituting an addition to net income); (iv) minus capital
expenditures and capitalized acquisition costs during such period; (v) plus Cash on
Hand (as defined below) on the Issue Date. For purposes of calculating Excess Cash,
capitalized acquisition costs (which shall be deemed to include the costs of
start-up facilities in lieu of acquisitions) on a cumulative basis shall not
exceed: (a) $23,000,000 if the Determination Date occurs during 1986, or (b)
$31,900,000 if the Determination Date occurs during 1987 or 1988. These limits will
be prorated if the Determination Date occurs at a time other than at year end. For
purposes of calculating changes in working capital as referred to in clause (iii)
above, working capital (beginning and ending balances) shall exclude the following:
(x) all cash |
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(including cash, deposits and marketable securities of
domestic and foreign subsidiaries and cash, deposits and marketable
securities of Dartmouth Insurance Company, Ltd.) and (y) the
current portion of all debt and capitalized lease obligations.
Working capital as of the Determination Date shall include as a
current liability an accrual for swap C interest expense, this
accrual representing an amount equal to one-half of the maximum
accrual for swap C interest expense reported as a current liability
over the 12-month period immediately preceding the Determination
Date. “Cash on Hand” is defined as the difference between the total
cash, deposits and marketable securities of the Corporation
(including for this purpose the $315,000,000 available to the
Corporation under the Credit Agreement, dated as of December 14,
1984, among the Corporation, MHTC and the banks named therein (the
“Credit Agreement”) ) and an amount equal to the sum of the
following (A) the net proceeds from the sale of capital assets of
the Corporation between August 23, 1984 and the Issue Date; (B) the
fees and expenses incurred or contracted for at or before the Issue
Date in connection with the merger of National Medical Care, Inc.
(“NMC”) into NMC Acquisition Corp., including (by way of example
but not limitation) legal, accounting, printing and certain banking
fees due at or before the Issue Date and the total contribution to
be made to Dartmouth College, but not including banking fees to be
incurred under the Credit Agreement after such time and not including fees and expenses paid by NMC prior to the
Issue Date; (C) the cash payments (whether or not
payable at the Issue Date) to be made for shares of, and retirement of options to
acquire shares of, NMC;
(D) $20,000,000, representing the amount of indebtedness of NMC outstanding prior to the Issue Date; (E)
$3,500,000, representing the cash, deposits and marketable
securities of Dartmouth Insurance Company, Ltd., on the Issue Date;
and (F) $24,000,000. |
IN WITNESS WHEREOF, said National Medical Care, Inc., has
caused this certificate to be signed by Constantine L.
Hampers, its President and Chairman of the Board of Directors,
and attested by Timothy I. McFeeley, its Secretary, this 26th
day of September, 1986.
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ATTEST: |
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NATIONAL MEDICAL CARE, INC. |
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/s/ Timothy I. McFeeley
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By:
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/s/ Constantine L. Hampers |
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Timothy I. McFeeley
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Constantine L. Hampers, M.D.
President and Chairman of
the Board of Directors |
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PAGE 1
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY CERTIFY THE ATTACHED
IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF NATIONAL MEDICAL CARE, INC. FILED IN
THIS OFFICE ON THE TWENTY-SIXTH DAY OF MAY, A.D. 1987, AT 10 O’CLOCK A.M.
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727146052 |
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/s/ Michael Harkins
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Michael Harkins, Secretary of State
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AUTHENTICATION:
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| 1288202 |
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DATE:
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06/23/1987 |
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
(Pursuant to Section 242)
* * * * * * * * * * *
National Medical Care, Inc., a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That the Board of Directors and Stockholders of said corporation, at meetings duly
held, adopted a resolution proposing and declaring advisable the following amendment to the
Restated Certificate of Incorporation of said corporation:
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RESOLVED:
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That the corporation’s Certificate of Incorporation be amended by inserting
therein a new Article EIGHTH immediately following Article SEVENTH which new Article shall
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“No director shall be personally liable to the corporation or any stockholder for
monetary damages for breach of fiduciary duty as a director, except for any matter
in respect of which such director shall be liable under Section 174 of Title 8 of
the Delaware Code (relating to the Delaware General Corporation Law) or any
amendment thereto or successor provision thereto or shall be liable by reason
that, in addition to any and all other requirements for such liability, he (i)
shall have breached his duty of loyalty to the corporation or its stockholders,
(ii) shall not have acted in good faith or, in failing to act, shall not have
acted in good faith, (iii) shall have acted in a manner involving intentional
misconduct or a knowing violation of law or, in failing to act, shall have acted
in a manner involving intentional misconduct or a knowing violation of law or (iv)
shall have derived an improper personal benefit. Neither the amendment nor repeal
of this Article Eighth, nor the adoption of any provision of the certificate of
incorporation inconsistent with this Article Eighth, shall eliminate or reduce the
effect of this Article Eighth in respect of any matter occurring, or any cause of
action, suit or claim that, but for this Article |
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Eighth would accrue or arise, prior to such amendment, repeal or
adoption of an inconsistent provision.” |
IN WITNESS WHEREOF, said National Medical Care, Inc., has caused this certificate to be
signed by Constantine L. Hampers, its President and Chairman of the Board of Directors, and attested by Timothy I.
McFeeley, its Secretary, this 19th
day of May, 1987.
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ATTEST: |
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NATIONAL MEDICAL CARE, INC. |
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/s/ Timothy I. McFeeley
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By:
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/s/ Constantine L. Hampers |
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Constantine L. Hampers, M.D.
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Secretary
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President and Chairman of |
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the Board of Directors |
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RECEIVED FOR RECORD
JUN 24 1987
William M. Honey, Recorder
PAGE 1
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF
DELAWARE DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF OWNERSHIP OF NATIONAL MEDICAL CARE, INC., A CORPORATION ORGANIZED
AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, MERGING GLUCO—MED, INC. AND HUMAN
RESOURCE INSTITUTE, INC. AND INSTITUTE FOR HEALTH MAINTENANCE, INC. AND NATIONAL MEDICAL CARE
OF NORFOLK, INC. AND NATIONAL MEDICAL CARE OF PORTLAND, INC. CORPORATIONS ORGANIZED AND
EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, PURSUANT TO SECTION 253 OF THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE THE TWENTY-FIRST
DAY OF JUNE, A.D. 1988, AT 10:01 O’CLOCK A.M.
AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CORPORATION SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF
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/s/ Michael Harkins
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Michael Harkins, Secretary of State
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AUTHENTICATION:
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DATE:
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06/27/1988 |
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CONTINUED ON PAGE 2
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PAGE 2
DELAWARE.
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/s/ Michael Harkins
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Michael Harkins, Secretary of State
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AUTHENTICATION:
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DATE:
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06/27/1988 |
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
GLUCO-MED, INC.
INSTITUTE FOR HEALTH MAINTENANCE, INC.
HUMAN RESOURCE INSTITUTE, INC.
NATIONAL MEDICAL CARE OF NORFOLK, INC.
AND
NATIONAL MEDICAL CARE OF PORTLAND, INC.
INTO
NATIONAL MEDICAL CARE, INC.
*****
National Medical Care, Inc., a corporation organized and existing under the laws of the State
of Delaware,
DOES HEREBY CERTIFY:
FIRST: That this corporation was incorporated on the 6th day of August, 1984, pursuant to the
Corporation Law of the State of Delaware.
SECOND: That this corporation owns all of the outstanding shares of the stock of Gluco-Med,
Inc., a corporation incorporated on the 12th day of November, 1980, pursuant to the Corporation
Law of the State of Delaware;
That this corporation owns all of the outstanding shares of the stock of Institute for
Health Maintenance, Inc., a corporation incorporated on the 3rd day of November, 1972, pursuant
to the Corporation Law of the State of Delaware;
That this corporation owns all of the outstanding shares of the stock of Human Resource
Institute, Inc., a corporation incorporated on the 19th day of January, 1970, pursuant to the
Corporation Law of the State of Delaware;
That this corporation owns all of the outstanding shares of the stock of National Medical
Care of Norfolk, Inc., a corporation incorporated on the 31st day of January, 1969, pursuant to
the Corporation Law of the State of Delaware;
That this corporation owns all of the outstanding shares of the stock of National Medical
Care of Portland, Inc., a corporation incorporated on the 17th day of March, 1969, pursuant to
the Corporation Law of the State of Delaware;
THIRD: That this corporation, by the following resolutions of its Board of Directors, by the
unanimous written consent of its members, filed with the minutes of the board, at a meeting
held on the 14th day of June, 1988, determined to and did merge into itself said:
-2-
GLUCO-MED, INC.
INSTITUTE FOR HEALTH MAINTENANCE, INC.
HUMAN RESOURCE INSTITUTE, INC.
NATIONAL MEDICAL CARE OF NORFOLK, INC.
AND
NATIONAL MEDICAL CARE OF PORTLAND, INC.
RESOLVED, that National Medical Care, Inc. merge, and it hereby does merge into itself said:
GLUCO-MED, INC.
INSTITUTE FOR HEALTH MAINTENANCE, INC.
HUMAN RESOURCE INSTITUTE, INC.
NATIONAL MEDICAL CARE OF NORFOLK, INC.
AND
NATIONAL MEDICAL CARE OF PORTLAND, INC.
assuming all of their obligations; and
FURTHER RESOLVED, that the merger is to be effective upon the date of filing with the
Secretary of the State of Delaware.
FURTHER RESOLVED, that the proper officers of this corporation be and they hereby are
directed to make and execute a Certificate of Ownership and Merger setting forth a copy of the
resolutions to merge said:
GLUCO-MED, INC.
INSTITUTE FOR HEALTH MAINTENANCE, INC.
HUMAN RESOURCE INSTITUTE, INC.
NATIONAL MEDICAL CARE OF NORFOLK, INC.
AND
NATIONAL MEDICAL CARE OF PORTLAND, INC.
assuming their liabilities and obligations, and the date of adoption thereof, and to cause the
same to be filed with the Secretary of State and a certified copy recorded in the office of the
Recorder of Deeds of New Castle county and to do all acts and things whatsoever, whether within or
without the State of Delaware, which may be in anywise necessary or proper to effect said merger.
IN WITNESS WHEREOF, said National Medical Care, Inc., has caused this certificate to be
signed by Constantine L. Hampers, M.D., President, and attested by Timothy I. McFeeley, its Secretary, this 14th day
of June, 1988.
-3-
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Attest: |
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NATIONAL MEDICAL CARE, INC. |
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By:
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/s/ Timothy I. McFeeley
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By:
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/s/ Constantine L. Hampers
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Timothy I. McFeeley
Secretary
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Constantine L. Hampers, M.D.
President |
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PAGE 1
I, MICHAEL RATCHFORD, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE
ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF CHANGE OF REGISTERED AGENT/OFFICE OF
“NATIONAL MEDICAL CARE, INC.” FILED IN THIS OFFICE ON THE ELEVENTH DAY OF MARCH, A.D. 1992, AT 9
O’CLOCK A.M.
* * * * * * * * * *
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/s/ Michael Ratchford
Michael Ratchford, Secretary of State
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AUTHENTICATION: *3595347
DATE:
CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE
AND OF REGISTERED AGENT
It is hereby certified that:
1. The name of the corporation (hereinafter called the “corporation”) is
NATIONAL MEDICAL CARE, INC.
2. The registered office of the corporation within the State of Delaware is hereby changed to
32 Loockerman Square, Suite L-100, City of Dover 19901, County
of Kent.
3. The registered agent of the corporation within the State of Delaware is hereby changed to
The Prentice-Hall Corporation System, Inc., the business office of which is identical with the
registered office of the corporation as hereby changed.
4. The corporation has authorized the changes hereinbefore set forth by resolution of its
Board of Directors.
Signed on
Feb. 21, 1992
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/s/ Jo Ellen Ojeda
Jo Ellen Ojeda, Vice-President |
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Attest:
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/s/ John Whiting
John Whiting, Secretary
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STATE OF DELAWARE
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DE dcertificate of change 4/91 |
SECRETARY OF STATE |
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DIVISION OF CORPORATIONS |
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FILED 09:00 AM 03/11/1992 |
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920715122 — 2041428 |
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Page 1
State of Delaware
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY
THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF CORRECTION OF “NATIONAL
MEDICAL CARE, INC.”, FILED IN THIS OFFICE ON THE ELEVENTH DAY OF JANUARY, A.D. 1993, AT
12:15 O’CLOCK P.M.
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/s/ Edward J. Freel
Edward J. Freel, Secretary of State
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2041428 8100
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AUTHENTICATION:
7621611 |
950191973
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DATE: 08-28-95 |
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STATE OF DELAWARE |
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SECRETARY OF STATE |
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DIVISION OF CORPORATIONS |
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FILED 12:15 PM 01/11/1993 |
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930115319 — 2041428 |
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
CERTIFICATE OF CORRECTION FILED TO CORRECT
A CERTAIN ERROR IN THE CERTIFICATE OF CHANCE OF LOCATION OF
REGISTERED OFFICE AND OF REGISTERED AGENT
OF NATIONAL MEDICAL CARE, INC.
FILED IN THE OFFICE OF THE SECRETARY OF STATE
OF DELAWARE ON MARCH 11, 1992
National
Medical Care, Inc., a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware,
DOES
HEREBY CERTIFY:
1.) The name of the corporation is National Medical Care, Inc.
2.) That a Certificate of Change of Location of Registered Office and of Registered Agent was
filed by the Secretary of State of Delaware on March 11, 1992, which requires correction as
permitted by subsection
(F) of § 103 of
the General Corporation Law of the State of Delaware.
3.) The
inaccuracy or defect in said certificate to be corrected is the typewritten name of
John Whiting as the Secretary of National Medical Care, Inc., located below the signature
which attests to the document. The said signature being that of Robert B. Lamm, Secretary of
National Medical Care, Inc.
4.) The
certificate should be amended in accordance with Exhibit A annexed hereto which
substitutes the typewritten name of Robert B. Lamm for the typewritten name of John Whiting
and should read as follows:
“Attest:
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Robert B. Lamm, secretary”
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-2-
IN WITNESS WHEREOF, said National Medical Care, Inc. has caused this certificate to be
signed by Jo Ellen Ojeda, its Vice President and attested to by Dennis J. LaCroix, its Assistant
Secretary, this 6th day of January, 1993.
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NATIONAL MEDICAL CARE, INC. |
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/s/ Jo Ellen Ojeda
Jo Ellen Ojeda
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Vice President |
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ATTEST:
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By:
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/s/ Dennis J. LaCroix
Dennis J. LaCroix, Assistant Secretary
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EXHIBIT “A”
CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE
AND OF REGISTERED AGENT
It is hereby certified that:
1. The name of the corporation (hereinafter called the “corporation”) is
NATIONAL MEDICAL CARE, INC.
2. The registered office of the corporation within the State of Delaware is hereby changed to 32
Loockerman Square, Suite L-100, City of Dover 19901, County of Kent.
3. The registered agent of the corporation within the State of Delaware is hereby changed to The
Prentice-Hall Corporation System, Inc., the business office of which is identical with the
registered office of the corporation as hereby changed.
4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors.
Signed on Feb 21, 1992
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/s/ Jo Ellen Ojeda, |
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Jo Ellen Ojeda, Vice - President
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Attest:
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/s/ Robert B. Lamm |
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Robert B. Lamm, Secretary |
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DE dcertificate of change 4/91
PAGE 1
State of Delaware
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE
ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF CHANGE OF REGISTERED AGENT OF “NATIONAL
MEDICAL CARE, INC.”, FILED IN THIS OFFICE ON THE TWENTY-NINTH DAY OF OCTOBER, A.D. 1993, AT 10 O’CLOCK A.M.
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/s/ Edward J. Freel |
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Edward J. Freel, Secretary of State |
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2041428 8100 |
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AUTHENTICATION: |
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8380821 |
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971090064 |
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DATE: |
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03-19-97 |
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CERTIFICATE OF CHANGE OF REGISTERED AGENT
AND
REGISTERED OFFICE
* * * * *
National Medical Care, Inc., a corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
The present registered agent of the corporation is The Prentice-Hall Corporation System, Inc.
and the present registered office of the corporation is in the county of Kent.
The Board of
Directors of National Medical Care, Inc. adopted the following resolution on the 27th day of
August, 1993.
Resolved, that the registered office of Home Intensive Care, Inc., in the state of
Delaware be and it hereby is changed to Corporation Trust Center, 1209 Orange Street in the
City of Wilmington, County of New Castle, and the authorization of the present registered
agent of this corporation be and the same is hereby withdrawn, and THE CORPORATION TRUST
COMPANY, shall be and is hereby constituted and appointed the registered agent of this
corporation at the address of its registered office.
IN WITNESS WHEREOF, National Medical Care, Inc. has caused this statement to be signed by
Charles W. Meyer, its Vice President and attested by Salvina Amenta-Gray, its Assistant
Secretary this 28th day of October, 1993.
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By |
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/s/ Charles W. Meyer |
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Vice President |
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ATTEST:
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By: |
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/s/ Salvina Amenta-Gray |
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Assistant secretary |
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PAGE 1
State of Delaware
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE
ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF OWNERSHIP, WHICH MERGES:
“RENAL CARE CENTERS CORPORATION”, A PENNSYLVANIA CORPORATION,
WITH AND INTO “NATIONAL MEDICAL CARE, INC.” UNDER THE NAME OF “NATIONAL MEDICAL CARE, INC.”, A
CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED
IN THIS OFFICE THE TWENTY-NINTH DAY OF SEPTEMBER, A.D. 1995, AT 9:30 O’CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF
DEEDS FOR RECORDING.
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/s/ Edward J. Freel |
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Edward J. Freel, Secretary of State
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2041428 8100M |
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AUTHENTICATION: |
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7659752 |
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DATE:
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09-29-95 |
950223876 |
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CERTIFICATE OF OWNERSHIP AND
MERGING
RENAL CARE CENTERS CORPORATION
INTO
NATIONAL MEDICAL CARE, INC.
National Medical Care, Inc., a corporation organized and existing under the laws of Delaware,
DOES HEREBY CERTIFY:
FIRST: That this corporation was incorporated on the 6th day of August, 1984, pursuant to the
General Corporation Law of the State of Delaware.
SECOND: That this corporation owns all of the outstanding shares of the stock of Renal Care Centers
Corporation, a corporation incorporated on the 25th day of January, 1983, pursuant to the Business
Corporation Law of the State of Pennsylvania.
THIRD: That this corporation, by the following resolutions of its Board of Directors, duly adopted
by unanimous written consent of directors, filed with the minutes of the Board, on the
27th
day of September, 1995, determined to and did merge into itself said Renal Care Centers
Corporation:
RESOLVED, that National Medical Care, Inc. merge, and it hereby does merge into itself said
Renal Care Centers Corporation and assumes all of its liabilities and obligations; and
FURTHER RESOLVED, that the merger shall be effective on September 30, 1995; and
FURTHER RESOLVED, that the proper officer of this corporation be and he or she is hereby directed
to make and execute a Certificate of Ownership and Merger setting forth a copy of the resolutions
to merge said Renal Care Centers Corporation and assume its liabilities and obligations, and the
date of adoption thereof, and to cause the same to be filed with the Secretary of State of Delaware
and to do all acts and things whatsoever, whether within or without the State of Delaware, which
may be necessary or proper to effect said merger.
IN WITNESS WHEREOF, said National Medical Care, Inc. has caused this Certificate to be signed by
Norman C. Alt, its Vice President, this 27th day of September, 1995.
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/s/ Norman C. Alt |
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Norman C. Alt, Vice President
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PAGE 1
State of Delaware
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE
ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF “NATIONAL MEDICAL CARE,
INC.”, FILED IN THIS OFFICE ON THE TWENTY-FIRST DAY OF FEBRUARY, A.D. 1997, AT 11:30 O’CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF
DEEDS FOR RECORDING.
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/s/ Edward J. Freel |
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Edward J. Freel, Secretary of State |
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2041428 8100 |
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AUTHENTICATION: |
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8342909 |
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DATE: |
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02-24-97 |
971057913 |
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CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
NATIONAL MEDICAL CARE, INC.
(Pursuant to Section 242 of the General Corporation Law of the State of Delaware)
********************
National Medical Care, Inc., a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
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FIRST: |
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That the Board of Directors of the Corporation, acting pursuant to Sections 141(f) and
242 of the General Corporation Law of the State of Delaware by written consent
in lieu of a meeting, declared it advisable to amend the Restated Certificate
of Incorporation of the Corporation as described hereinafter and, to effect
such amendments, the sole stockholder of the Corporation, by written consent
pursuant to Section 228(a) of the General Corporation Law of the State of
Delaware, approved and adopted the following resolutions: |
RESOLVED, that the Corporation effect a reverse stock split such that the 10,268,701 shares
of common stock of the Corporation, $.01 par value per share, issued and outstanding
immediately prior to the time this amendment becomes effective shall be and are automatically
combined and changed (without any further act) into 100 fully-paid and non-assessable shares
of the common stock of the Corporation, $.01 par value per share.
RESOLVED, that immediately after the effective date of the amendment combining and
changing the shares of the common stock of the Corporation, the sole stockholder of the
Corporation shall surrender to the Corporation its certificate(s) representing shares of
common stock for cancellation and re-issuance in accordance with the provisions of such
amendment.
RESOLVED, that the Corporation amend its Restated Certificate of Incorporation by
deleting Article Fourth thereof in its entirety and inserting in place thereof the
following:
“FOURTH. The Corporation is authorized to issue 3,000 shares of Common Stock, $.01
par value per share.”
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SECOND: |
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That the foregoing amendments were duly adopted in accordance with the
applicable provisions of the General Corporation Law of the State of Delaware. |
IN WITNESS WHEREOF, said National Medical Care, Inc. has caused this certificate to be signed
by Ben J. Lipps, Ph.D., its President, this 11th day of February, 1997.
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NATIONAL MEDICAL CARE, INC.
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/s/ Ben J. Lipps
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Ben J. Lipps, Ph.D. |
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President |
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2
Change
of Name Only [—]
June 19,1985
Pursuant to Merger
By-laws remained the same since 6/19/85
BY-LAWS
OF
NATIONAL MEDICAL CARE, INC.
(Formerly NMC HOLDING CORP. )
BY-LAWS
TABLE OF CONTENTS
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Page |
ARTICLE 1 — Stockholders |
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1 |
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Section 1.1 Place of Meetings |
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Section 1.2 Annual Meeting |
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Section 1.3 Special Meetings |
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Section 1.4 Notice of Meetings |
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2 |
Section 1.5 Voting List |
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2 |
Section 1.6 Quorum |
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Section 1.7 Adjournments |
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Section 1.8 Voting and Proxies |
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3 |
Section 1.9 Action at Meeting |
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Section 1.10
Action without Meeting |
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3 |
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ARTICLE 2 — Directors |
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Section 2.1 General Powers |
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Section 2.2 Number; Election and Qualification |
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Section 2.3 Tenure |
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Section 2.4 Vacancies |
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Section 2.5 Resignation |
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Section 2.6 Regular Meetings |
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Section 2.7 Special Meetings |
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Section 2.8 Notice of Special Meetings |
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Section 2.9 Meetings by Telephone Conference Calls |
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Section 2.10 Quorum |
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Section 2.11 Action at Meeting |
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Section 2.12 Action by Consent |
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Section 2.13 Removal |
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Section 2.14 Committees |
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Section 2.15 Compensation of Directors |
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6 |
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ARTICLE 3 — Officers |
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Section 3.1 Enumeration |
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Section 3.2 Election |
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Section 3.3 Qualification |
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Page |
Section 3.4 Tenure |
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Section 3.5 Resignation and Removal |
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7 |
Section 3.6 Vacancies |
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8 |
Section 3.7 Chairman of the Board and Vice-Chairman of the Board |
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Section 3.8 President |
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Section 3.9 Vice Presidents |
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Section 3.10 Secretary and Assistant Secretaries |
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Section 3.11 Treasurer and Assistant Treasurers
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9 |
Section 3.12 Salaries |
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9 |
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ARTICLE 4 — Capital Stock |
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Section 4.1 Issuance of Stock |
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10 |
Section 4.2 Certificates of Stock |
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10 |
Section 4.3
Transfers |
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Section 4.4 Lost, Stolen or Destroyed Certificates |
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11 |
Section 4.5 Record Date |
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11 |
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ARTICLE 5 — Indemnification |
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12 |
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ARTICLE 6 — General Provisions |
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Section 6.1 Fiscal Year |
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Section 6.2 Corporate Seal |
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Section 6.3 Waiver of Notice |
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Section 6.4 Voting of Securities |
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Section 6.5 Evidence of Authority |
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Section 6.6 Certificate of Incorporation |
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Section 6.7 Transactions with Interested Parties |
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Section 6.8 Severability |
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Section 6.9 Pronouns |
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ARTICLE 7 — Amendments |
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Section 7.1 By the Board of Directors |
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Section 7.2 By the Stockholders |
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Page |
ARTICLE 8
— Right of First Refusal |
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15 |
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Section 8.1 Restrictions on Transfer |
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Section 8.2 First Refusal Notice |
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Section 8.3 Corporation’s Right to Purchase |
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Section 8.4 Shareholder’s Right to Purchase |
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Section 8.5 Settlement |
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Section 8.6 Sale by Selling Stockholder |
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Section 8.7 Exceptions |
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Section 8.8 Waiver |
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Section 8.9 Legend |
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Section 8.10 Termination of Right of First Refusal |
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18 |
-iii-
BY-LAWS
OF
NATIONAL MEDICAL CARE, INC.
(Formerly NMC HOLDING CORP.)
ARTICLE 1 — Stockholders
1.1 Place of Meetings. All meetings of stockholders shall be held at such place
within or without the State of Delaware as may be designated from time to time by the Board of
Directors or the President or, if not so designated, at the registered office of the corporation.
1.2 Annual Meeting. The annual meeting of stockholders for the election of
directors and for the transaction of such other business as may properly be brought before the
meeting shall be held on the third Tuesday in May in each year, at a time fixed by the Board of
Directors or the President. If this date shall fall upon a legal holiday at the place of the
meeting, then such meeting shall be held on the next succeeding business day at the same hour.
If no annual meeting is held in accordance with the foregoing provisions, the Board of Directors
shall cause the meeting to be held as soon thereafter as convenient. If no annual meeting is
held in accordance with the foregoing provisions, a special meeting may be held in lieu of the
annual meeting, and any action taken at that special meeting shall have the same effect as if it
had been taken at the annual meeting, and in such case all references in these By-Laws to the
annual meeting of the stockholders shall be deemed to refer to such special meeting.
1.3 Special Meetings. Special meetings of stockholders may be called at any time by
the Chairman of the Board, President or by the Board of Directors and shall be called by the
Chairman, the President or the Secretary at the written request of stockholders holding shares
entitled to cast not less than twenty-five per cent of the votes at the meeting. Business
transacted at any special meeting of stockholders shall be limited to matters relating to the
purpose or purposes stated in the notice of meeting.
-1-
1.4 Notice of Meetings. Except as otherwise provided by law, written notice of each
meeting of stockholders, whether annual or special, shall be given not less than 10 nor more than
60 days before the date of the meeting to each stockholder entitled to vote at such meeting. The
notices of all meetings shall state the place, date and hour of the meeting. The notice of a
special meeting shall state, in addition, the purpose or purposes for which the meeting is called.
If mailed, notice is given when deposited in the United States mail, postage prepaid, directed to
the stockholder at his address as it appears on the records of the corporation.
1.5 Voting List. The officer who has charge of the stock ledger of the corporation
shall prepare, at least 10 days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least
10 days prior to the meeting, at a place within the city where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time of the meeting, and may be inspected by
any stockholder who is present.
1.6 Quorum. Except as otherwise provided by law, the Certificate of Incorporation or
these By-Laws, the holders of such number of shares of stock issued and outstanding and entitled to
vote at the meeting as shall constitute fifty-five per cent (55%) of the votes entitled to be cast
thereat, present in person or represented by proxy, shall constitute a quorum for the transaction
of business.
1.7 Adjournments. Any meeting of stockholders may be adjourned to any other time and
to any other place at which a meeting of stockholders may be held under these By-Laws by the
stockholders present or represented at the meeting and entitled to vote, although less than a
quorum, or, if no stockholder is present, by any officer entitled to preside at or to act as
Secretary of such meeting. It shall not be necessary to notify any stockholder of any adjournment
of less than 30 days if the time and place of the adjourned meeting are announced at the meeting at
which adjournment is taken, unless after the adjournment a new record date is fixed for the
adjourned meeting. At the adjourned meeting, the corporation may transact any business which might
have been transacted at the original meeting.
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1.8 Voting and Proxies. Each stockholder shall have one vote for each share of stock
entitled to vote held of record by such stockholder and a proportionate vote for each fractional
share so held, unless otherwise provided in the Certificate of Incorporation. Each stockholder of
record entitled to vote at a meeting of stockholders, or to express consent or dissent to corporate
action in writing without a meeting, may vote or express such consent or dissent in person or may
authorize another person or persons to vote or act for him by written proxy executed by the
stockholder or his authorized agent and delivered to the Secretary of the corporation. No such
proxy shall be voted or acted upon after three years from the date of its execution, unless the
proxy expressly provides for a longer period.
1.9 Action at Meeting. When a quorum is present at any meeting, the holders of
fifty-five percent (55%) of the shares of stock issued and outstanding and entitled to vote at the
meeting shall decide any matter to be voted upon by the stockholders at such meeting, except when a
different vote is required by express provision of law, the Certificate of Incorporation or these
By-Laws.
1.10 Action without Meeting. Any action required or permitted to be taken at any
annual or special meeting of stockholders of the corporation may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth the action so
taken, is signed by the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at which all shares
entitled to vote on such action were present and voted. Prompt notice of the taking of corporate
action without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE 2 — Directors
2.1 General Powers. The business and affairs of the corporation shall be managed by
or under the direction of a Board of Directors, who may exercise all of the powers of the
corporation except as otherwise provided by law, the Certificate of Incorporation or these By-Laws.
In the event of a vacancy in the Board of Directors, the remaining directors, except as
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otherwise provided by law and subject to Section 2.10, may exercise the powers of the
full Board until the vacancy is filled.
2.2 Number; Election and Qualification. The number of directors which shall constitute
the whole Board of Directors shall be eight or such other number as shall be fixed from time to
time by the Board of Directors. The number of directors may be decreased at any time and from time
to time by a majority of the total number of authorized directors to eliminate vacancies existing
by reason of the death, resignation, removal or expiration of the term of one or more directors.
The directors shall be elected at the annual meeting of stockholders by such stockholders as have
the right to vote on such election. Directors need not be stockholders of the corporation.
2.3 Tenure. Each director shall hold office until the next annual meeting and until
his successor is elected and qualified, or until his earlier death, resignation or removal.
2.4 Vacancies. Any vacancy in the Board of Directors, however occurring, including a
vacancy resulting from an enlargement of the Board, may be filled only by vote of the stockholders.
A director elected to fill a vacancy shall be elected for the unexpired term of his predecessor in
office, and a director chosen to fill a position resulting from an increase in the number of
directors shall hold office until the next annual meeting of stockholders and until his successor
is elected and qualified, or until his earlier death, resignation or removal.
2.5 Resignation. Any director may resign by delivering his written resignation to the
corporation at its principal office or to the President or Secretary. Such resignation shall be
effective upon receipt unless it is specified to be effective at some other time or upon the
happening of some other event.
2.6 Regular Meetings. Regular meetings of the Board of Directors may be held without
notice at such time and place, either within or without the State of Delaware, as shall be
determined from time to time by the Board of Directors; provided that any director who is absent
when such a determination is made shall be given notice of the determination. A regular meeting of
the Board of Directors may be held without notice immediately after and at the same place as the
annual meeting of stockholders.
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2.7 Special Meetings. Special meetings of the Board of Directors may be held at any
time and place, within or without the State of Delaware, designated in a call by the Chairman of
the Board, President, two or more directors, or by one director in the event that there is only a
single director in office.
2.8 Notice of Special Meetings. Notice of any special meeting of directors shall be
given to each director by the Secretary or by the officer or one of the directors calling the
meeting. Notice shall be duly given to each director (i) by giving notice to such director in
person or by telephone at least 48 hours in advance of the meeting, (ii) by sending a telegram or
telex, or delivering written notice by hand, to his last known business or home address at least 48
hours in advance of the meeting, or (iii) by mailing written notice to his last known business or
home address at least 72 hours in advance of the meeting. A notice or waiver of notice of a meeting
of the Board of Directors need not specify the purposes of the meeting.
2.9 Meetings by Telephone Conference Calls. Directors or any members of any committee
designated by the directors may participate in a meeting of the Board of Directors or such
committee by means of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and participation by such means shall
constitute presence in person at such meeting.
2.10 Quorum. A majority of the total number of directors shall constitute a quorum at
all meetings of the Board of Directors. The total number of directors shall mean the number of
directors the corporation would have if there were no vacancies. In the absence of a quorum at any
such meeting, a majority of the directors present may adjourn the meeting from time to time without
further notice other than announcement at the meeting, until a quorum shall be present.
2.11 Action at Meeting. At any meeting of the Board of Directors at which a quorum is
present, the vote of a majority of the total number of directors shall be sufficient to take any
action, unless a different vote is specified by law, the Certificate of Incorporation or these
By-Laws.
2.12 Action by Consent. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee of the Board of
Directors may be taken without a meeting, if all members of the Board (provided that a majority of
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the total number of directors shall then be in office) or committee, as the case may be, consent to
the action in writing, and the written consents are filed with the minutes of proceedings of the
Board or committee.
2.13 Removal. Any one or more or all of the directors may be removed, with or without
cause, by such stockholders as have the right to vote for the election of directors, except that
the directors elected by the holders of a particular class or series of stock may be removed only
by vote of the holders of the outstanding shares of such class or series required to elect such
directors.
2.14 Committees. The Board of Directors may, by resolution passed by a majority of
the total number of directors, designate one or more committees, each committee to consist of one
or more of the directors of the corporation. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified member at any
meeting of the committee. The number of members which shall constitute a quorum for the
transaction of business by the committee and the vote which shall constitute the act of the
committee shall be provided in the resolution establishing such committee. Any such committee, to
the extent provided in the resolution of the Board of Directors and subject to the provisions
of the General Corporation Law of the State of Delaware, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and affairs of the
corporation and may authorize the seal of the corporation to be affixed to all papers which may
require it. Each such committee shall keep minutes and make such reports as the Board of Directors
may from time to time request. Except as the Board of Directors may otherwise determine, any
committee may make rules for the conduct of its business, but unless otherwise provided by the
directors or in such rules, its business shall be conducted as nearly as possible in the same
manner as is provided in these By-Laws for the Board of Directors.
2.15 Compensation of Directors. Directors may be paid such compensation for their
services and such reimbursement for expenses of attendance at meetings as the Board of Directors
may from time to time determine. No such payment shall preclude any director from serving the
corporation or any of its parent or subsidiary corporations in any other capacity and receiving
compensation for such service.
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ARTICLE 3 — Officers
3.1 Enumeration. The officers of the corporation shall consist of a President, a
Secretary, a Treasurer and such other officers with such other titles as the Board of Directors
shall determine, including a Chairman of the Board, a Vice-Chairman of the Board, and one or more
Vice Presidents, Assistant Treasurers, and Assistant Secretaries. The Board of Directors may
appoint such other officers as it may deem appropriate.
3.2 Election. The President, Treasurer and Secretary shall be elected annually by the
Board of Directors at its first meeting following the annual meeting
of stockholders. Other
officers may be appointed by the Board of Directors at such meeting or at any other meeting.
3.3 Qualification. No officer need be a stockholder. Any two or more offices may be
held by the same person.
3.4 Tenure. Except as otherwise provided by law, by the Certificate of Incorporation
or by these By-Laws, each officer shall hold office until his successor is elected and qualified,
unless a different term is specified in the vote choosing or appointing him, or until his earlier
death, resignation or removal.
3.5 Resignation and Removal. Any officer may resign by delivering his written
resignation to the corporation at its principal office or to the President or Secretary. Such
resignation shall be effective upon receipt unless it is specified to be effective at some other
time or upon the happening of some other event.
Any officer may be removed at any time, with or without cause, by vote of a majority of the
total number of directors.
Except as the Board of Directors may otherwise determine, no officer who resigns or is removed
shall have any right to any compensation as an officer for any period following his resignation or
removal, or any right to damages on account of such removal, whether his compensation be by the
month or by the year or otherwise, unless such compensation is expressly provided in a duly
authorized written agreement with the corporation.
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3.6 Vacancies. The Board of Directors may fill any vacancy occurring in any office
for any reason and may, in its discretion, leave unfilled for such period as it may determine any
offices other than those of President, Treasurer and Secretary. Each such successor shall hold
office for the unexpired term of his predecessor and until his successor is elected and qualified,
or until his earlier death, resignation or removal.
3.7 Chairman of the Board and Vice-Chairman of the Board. The Board of Directors shall
appoint a Chairman of the Board who shall serve as Chief Executive Officer, shall preside at all
meetings of Stockholders and directors and shall perform such duties and possess such powers as are
assigned to him by the Board of Directors.
3.8 President. The President shall, subject to the direction of the Board of
Directors, have general charge and supervision of the business of the corporation. The President
shall perform such duties and shall have such other powers as the Board of Directors may from time
to time prescribe.
3.9 Vice Presidents. Any Vice President shall perform such duties and possess such
powers as the Board of Directors or the President may from time to time prescribe. In the event of
the absence, inability or refusal to act of the President, the Vice President (or if there shall be
more than one, the Vice Presidents in the order determined by the Board of Directors) shall perform
the duties of the President and when so performing shall have all the powers of and be subject to
all the restrictions upon the President. The Board of Directors may assign to any Vice President
the title of Executive Vice President, Senior Vice President or any other title selected by the
Board of Directors.
3.10
Secretary and Assistant Secretaries. The
Secretary shall perform such duties and shall have such powers as the Board of Directors or the
President may from time to time prescribe. In addition, the Secretary shall perform such duties
and have such powers as are incident to the office of the secretary, including without limitation
the duty and power to give notices of all meetings of stockholders and special meetings of the
Board of Directors, to attend all meetings of stockholders and the Board of Directors and keep a
record of the proceedings, to maintain a stock ledger and prepare lists of stockholders and their
addresses as required, to be custodian of corporate records and the corporate seal and to affix and
attest to the same on documents.
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Any Assistant Secretary shall perform such duties and possess such powers as the Board of
Directors, the President or the Secretary may from time to time prescribe. In the event of the
absence, inability or refusal to act of the Secretary, the Assistant Secretary, (or if there shall
be more than one, the Assistant Secretaries in the order determined by the Board of Directors)
shall perform the duties and exercise the powers of the Secretary.
In the absence of the Secretary or any Assistant Secretary at any meeting of stockholders or
directors, the person presiding at the meeting shall designate a temporary secretary to keep a
record of the meeting.
3.11 Treasurer and Assistant Treasurers. The Treasurer shall perform such duties and
shall have such powers as may from time to time be assigned to him by the Board of Directors or
the President. In addition, the Treasurer shall perform such duties and have such powers as are
incident to the office of treasurer, including without limitation the duty and power to keep and be
responsible for all funds and securities of the corporation, to deposit funds of the corporation in
depositories selected in accordance with these By-Laws, to disburse such funds as ordered by the
Board of Directors, to make proper accounts of such funds, and to render as required by the Board
of Directors statements of all such transactions and of the financial condition of the corporation.
The Assistant Treasurers shall perform such duties and possess such powers as the Board of
Directors, the President or the Treasurer may from time to time prescribe. In the event of the
absence, inability or refusal to act of the Treasurer, the Assistant Treasurer, (or if there shall
be more than one, the Assistant Treasurers in the order determined by the Board of Directors) shall
perform the duties and exercise the powers of the Treasurer.
3.12 Salaries. Officers of the corporation shall be entitled to such salaries,
compensation or reimbursement as shall be fixed or allowed from time to time by the Board of
Directors.
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ARTICLE 4 — Capital Stock
4.1 Issuance of Stock. Unless otherwise voted by the stockholders and subject to the
provisions of the Certificate of Incorporation, the whole or any part of any unissued balance of
the authorized capital stock of the corporation or the whole or any part of any unissued balance of
the authorized capital stock of the corporation held in its treasury may be issued, sold,
transferred or otherwise disposed of by vote of the Board of Directors in such manner, for such
consideration and on such terms as the Board of Directors may determine.
4.2 Certificates of Stock. Every holder of stock of the corporation shall be entitled
to have a certificate, in such form as may be prescribed by law and by the Board of Directors,
certifying the number and class of shares owned by him in the corporation. Each such certificate
shall be signed by, or in the name of the corporation by, the Chairman or Vice-Chairman, if any, of
the Board of Directors, or the President or a Vice President, and the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary of the corporation. Any or all of the
signatures on the certificate may be a facsimile.
Each certificate for shares of stock which are subject to any restriction on transfer pursuant
to the Certificate of Incorporation, the By-Laws, applicable securities laws or any agreement among
any number of shareholders or among such holders and the corporation shall have conspicuously noted
on the face or back of the certificate either the full text of the restriction or a statement of
the existence of such restriction.
4.3 Transfers. Except as otherwise established by rules and regulations adopted by the
Board of Directors, and subject to applicable law, shares of stock may be transferred on the books
of the corporation by the surrender to the corporation or its transfer agent of the certificate
representing such shares properly endorsed or accompanied by a written assignment or power of
attorney properly executed, and with such proof of authority or the authenticity of signature as
the corporation or its transfer agent may reasonably require. Except as may be otherwise required
by law, by the Certificate of Incorporation or by these By-Laws, the corporation shall be entitled
to treat the record holder of stock as shown on its books as the owner of such stock for all
purposes, including the payment of dividends and the right to vote with respect to such stock,
regardless of any
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transfer, pledge or other disposition of such stock until the shares have been transferred on the
books of the corporation in accordance with the requirements of these By-Laws.
4.4 Lost, Stolen or Destroyed Certificates. The corporation may issue a new
certificate of stock in place of any previously issued certificate alleged to have been lost,
stolen, or destroyed, upon such terms and conditions as the Board of Directors may prescribe,
including the presentation of reasonable evidence of such loss, theft or destruction and the giving
of such indemnity as the Board of Directors may require for the protection of the corporation or
any transfer agent or registrar.
4.5 Record Date. The Board of Directors may fix in advance a date as a record date for
the determination of the stockholders entitled to notice of or to vote at any meeting of
stockholders or to express consent (or dissent) to corporate action in writing without a meeting,
or entitled to receive payment of any dividend or other distribution or allotment of any rights in
respect of any change, conversion or exchange of stock, or for the purpose of any other lawful
action. Such record date shall not be more than 60 nor less than 10 days before the date of such
meeting, nor more than 60 days prior to any other action to which such record date relates.
If no record date is fixed, the record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of business on the day before the day
on which notice is given, or, if notice is waived, at the close of business on the day before the
day on which the meeting is held. The record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting, when no prior action by the Board of
Directors is necessary, shall be the day on which the first written consent is expressed. The
record date for determining stockholders for any other purpose shall be at the close of business on
the day on which the Board of Directors adopts the resolution relating to such purpose.
A determination of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
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ARTICLE 5 — Indemnification
The corporation shall, to the fullest extent permitted by Section 145 of the General
Corporation Law of Delaware, as that Section may be amended and supplemented from time to time,
indemnify any director, officer or trustee which it shall have power to indemnify under that
Section against any expenses, liabilities or other matters referred to in or covered by that
Section. The indemnification provided for in this Article (i) shall not be deemed exclusive of any
other rights to which those indemnified may be entitled under any By-Law, agreement or vote of
stockholders or disinterested directors or otherwise, both as to action in their official
capacities and as to action in another capacity while holding such office, (ii) shall continue as
to a person who has ceased to be a director, officer or trustee and (iii) shall inure to the
benefit of the heirs, executors and administrators of such a person. The corporation’s obligation
to provide indemnification under this Article shall be offset to the extent of any other source of
indemnification or any otherwise applicable insurance coverage under a policy maintained by the
corporation or any other person.
To assure indemnification under this Article of all such persons who are determined by the
corporation or otherwise to be or to have been “fiduciaries” of any employee benefit plan of the
corporation which may exist from time to time, such Section 145 shall, for the purposes of this
Article, be interpreted as follows: an “other enterprise” shall be deemed to include such an
employee benefit plan, including, without limitation, any plan of the corporation which is governed
by the Act of Congress entitled “Employee Retirement Income Security Act of 1974,” as amended from
time to time; the corporation shall be deemed to have requested a person to serve an employee
benefit plan where the performance by such person of his duties to the corporation also imposes
duties on, or otherwise involves services by, such person to the plan or participants or
beneficiaries of the plan; excise taxes assessed on a person with respect to an employee benefit
plan pursuant to such Act of Congress shall be deemed “fines”; and action taken or omitted by a
person with respect to an employee benefit plan in the performance of such person’s duties for a
purpose reasonably believed by such person to be in the interest of the participants and
beneficiaries of the plan shall be deemed to be for a purpose which is not opposed to the best
interests of the corporation.
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ARTICLE 6 — General Provisions
6.1 Fiscal Year. Except as from time to time otherwise designated by the Board of
Directors, the fiscal year of the corporation shall begin on the first day of January in each year
and end on the last day of December in each year.
6.2 Corporate Seal. The corporate seal shall be in such form as shall be approved by
the Board of Directors.
6.3 Waiver of Notice. Whenever any notice whatsoever is required to be given by law,
by the Certificate of Incorporation or by these By-Laws, a waiver of such notice either in
writing signed by the person entitled to such notice or such person’s duly authorized attorney, or
by telegraph, cable or any other available method, whether before, at or after the time stated in
such waiver, or the appearance of such person or persons at such meeting in person or by proxy,
shall be deemed equivalent to such notice.
6.4 Voting of Securities. As directed by the Board of Directors, the President or
Treasurer may waive notice of, and act as, or appoint any person or persons to act as, proxy or
attorney-in-fact for this corporation (with or without power of substitution) at, any meeting of
stockholders or shareholders of any other corporation or organization, the securities of which may
be held by this corporation.
6.5 Evidence of Authority. A certificate
by the Secretary, or an Assistant Secretary, or a temporary Secretary, as to any action taken
by the stockholders, directors, a committee or any officer or representative of the corporation
shall as to all persons who rely on the certificate in good faith be conclusive evidence of such
action.
6.6 Certificate of Incorporation. All references in these By-Laws to the Certificate
of Incorporation shall be deemed to refer to the Certificate of
Incorporation of the corporation, as
amended or restated and in effect from time to time.
6.7 Transactions with Interested Parties. No contract or transaction between the
corporation and one or more of the directors or officers, or between the corporation and any other
corporation, partnership, association, or other organization in
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which one or more of the directors or officers are directors or officers, or have a financial
interest, shall be void or voidable solely for this reason, or solely because the director or
officer is present at or participates in the meeting of the Board of Directors or a committee of
the Board of Directors which authorizes the contract or transaction or solely because his or their
votes are counted for such purpose, if:
(1) The material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the committee, and the
Board or committee in good faith authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested directors, even though the disinterested directors
be less than a quorum;
(2) The material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the stockholders;
or
(3) The contract or transaction is fair as to the corporation as of the time it is
authorized, approved or ratified, by the Board of Directors, a committee of the Board of
Directors, or the stockholders.
Common or interested directors may be counted in determining the presence of a quorum at a
meeting of the Board of Directors or of a committee which authorizes the contract or transaction.
6.8 Severability. Any determination that any provision of these By-Laws is for any
reason inapplicable, illegal or ineffective shall not affect or invalidate any other provision of
these By-Laws.
6.9 Pronouns. All pronouns used in these By-Laws shall be deemed to refer to the
masculine, feminine or neuter, singular or plural, as the identity of the person or persons may
require.
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ARTICLE 7 — Amendments
7.1 By the Board of Directors. These By-Laws may be altered, amended or repealed or
new by-laws may be adopted by the affirmative vote of a majority of the total number of directors,
except that no provision affecting the rights, powers, qualifications or requirements regarding the
voting of stock pursuant to Article 1 of these By-Laws may be amended unless approved by the
stockholders of the corporation.
7.2 By the Stockholders. These By-Laws may be altered, amended or repealed or new
by-laws may be adopted by the affirmative vote of the holders of such percentage of the stock
entitled to vote as is provided in Article 1 hereof, provided that in the case of an annual or
special meeting of stockholders notice of such proposal to alter, amend or repeal these By-Laws or
adopt new by-laws shall have been stated in the notice of meeting of stockholders.
ARTICLE 8 — Right of First Refusal
8.1 Restrictions on Transfer. No stockholder shall sell, assign, pledge, or in any
manner transfer any of the shares of stock of the corporation or any right or interest therein,
whether voluntarily or by operation of law, or otherwise except for a transfer in accordance with
this Article 8 or a transfer excepted from the provisions of
this Article 8, provided, however, that said prohibition shall not apply to: (i) any shares of Series A Convertible
Preferred Stock, $.01 par value, of the corporation; (ii) any shares of Common Stock of the
corporation into which such shares of Series A Convertible Preferred Stock have been converted;
(iii) any shares of the 12% Cumulative Redeemable Preferred Stock, $.01 par value, of the
corporation; and (iv) any shares of the capital stock of the corporation issued with respect to any
of the foregoing, by way of a stock dividend, stock split, recapitalization or otherwise. Any sale
or transfer, or purported sale or transfer, of securities of the corporation shall be null and void
unless the terms, conditions, and provisions of this By-Law are strictly observed and followed.
8.2 First Refusal Notice. If a stockholder receives from anyone a bona fide offer
acceptable to the stockholder to purchase any of his shares of stock, then the stockholder shall
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first give written notice (the “First Refusal Notice”) thereof to the corporation (attention of the
Secretary of the corporation). The First Refusal Notice shall name and describe the proposed
transferee (including a description of any relationship or affiliation with the holder) and state
the number of shares to be transferred, the price per share and all other terms and conditions of
the offer.
8.3 Corporation’s Right to Purchase. For thirty (30) business days following receipt
of the First Refusal Notice, the corporation shall have the option to purchase all or any lesser
number of the shares specified in such Notice at the price and upon the terms set forth in such
bona fide offer (subject to Section 8.5 below). The corporation may assign its rights hereunder to
any other person or business entity.
8.4 Stockholders’ Right to Purchase. In the event the corporation or its assignee or
assignees do not elect to acquire all of the shares specified in the First Refusal Notice, the
Secretary of the corporation shall, within fifteen (15) business days of receipt of the First
Refusal Notice, give written notice thereof to the stockholders of the corporation, other than the
selling stockholder and other than the holders of 12% Preferred Stock. Said written notice shall
state the number of shares that the corporation has elected to purchase and that the balance of the
shares covered by the First Refusal Notice are available for purchase. Each of such other
stockholders shall have the right to purchase that proportion of the shares available for purchase
as the number of shares of Common Stock owned by each of said other stockholders bears to the total
issued and outstanding shares of the Corporation, excepting those shares owned by the selling
stockholder and excepting the shares of 12% Preferred Stock. For purposes of the foregoing
sentence, all shares of the corporation’s capital stock that are convertible into Common Stock
(other than the shares issuable from time to time upon an option held by W. R. Grace & Co. to
purchase up to 3,070,430 shares of the corporation’s Common Stock) shall be deemed to equal that
number of shares of Common Stock into which such convertible securities are then convertible. A
stockholder electing to exercise such right to purchase shall, within ten (10) business days after
mailing of the corporation’s notice, give written notice to the corporation specifying the number
of shares such stockholder will purchase. Within such ten-day period, each of said other
stockholders shall also give written notice stating how many additional shares such stockholder
will purchase (including such additional number of shares as such
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stockholder wishes to purchase in the event that the number of shares available for purchase
exceeds his pro rata allotment) if additional shares are made available. Failure to respond in
writing within said ten-day period to the notice given by the Secretary of the corporation shall be
deemed a rejection of such stockholder’s right to acquire a proportionate part of the shares of the
selling stockholder. In the event one or more stockholders do not elect to acquire the shares
availabe to them, said shares shall be allocated on a pro rata basis to the stockholders who
requested shares in addition to their pro rata allotment.
8.5 Settlement. In the event the corporation and/or
stockholders, other than the selling stockholder, elect to
acquire any of the shares of the selling stockholder as specified
in the First Refusal Notice, the Secretary of the corporation
shall so notify the selling stockholder and settlement thereof
shall be made in cash within thirty (30) business days after the
date on which the Secretary of the corporation received the First
Refusal Notice; provided, however, that if the terms of payment
set forth in the First Refusal Notice are other than cash against
delivery the corporation shall pay for said shares on the same
terms and conditions set forth in the First Refusal Notice or, at
the option of the corporation, shall pay for such shares in cash
in an amount equal to the fair market value thereof, as
determined by an independent appraiser selected by the
corporation whose determination of fair market value shall be
conclusive.
8.6 Sale by Selling Stockholder. In the event the
corporation and stockholders do not elect to acquire all of the shares specified in the First Refusal Notice, the selling
stockholder may, within the sixty-day period following the
expiration of the rights granted to the corporation, sell
elsewhere the shares specified in the First Refusal Notice which
were not acquired by the corporation and stockholders in
accordance with the provisions of this Article 8; provided, that
said sale shall not be on terms and conditions more favorable to
the purchaser than those contained in the First Refusal Notice.
All shares so sold by said selling stockholder shall continue to
be subject to the provisions of this Article 8 in the same manner
as before said transfer.
8.7 Exceptions. Anything to the contrary contained
herein notwithstanding, a stockholder’s transfer by gift of any
or all shares held either during such stockholder’s lifetime, or
a transfer on death by will or intestacy, in either case to such
-17-
stockholder’s immediate family shall be exempt from the provisions of this Article 8.
“Immediate family” as used herein shall mean spouse, lineal descendant, father, mother, brother or
sister of the stockholder making such transfer or any trust established for the benefit of any of
such persons.
In any such case, the transferee, assignee or
other recipient shall receive and hold such stock subject to the provisions of this Article 8, and
there shall be no further transfer of such stock except in accordance with this Article 8.
8.8 Waiver. Any or all of the provisions of this Article 8 may be waived with respect
to any transfer either by the corporation, upon duly authorized action of its Board of Directors,
or by the stockholders, upon the express written consent of the owners of not less than 55% of the
shares of Capital Stock of the Corporation issued and outstanding and entitled to vote thereon
(excluding the votes represented by those shares to be sold by the selling stockholder). This
Article 8 may be amended or repealed only by the express written consent of the owners of not less
than 55% of the then issued and outstanding shares of the capital stock of the corporation entitled
to vote thereon.
8.9 Legend. The certificates representing shares of
the corporation shall bear on their face the following legend so
long as the foregoing right of first refusal remains in effect:
“The shares represented by this
certificate are subject to a right of first
refusal option in favor of the corporation and
its stockholders, as provided in the By-laws of
the corporation.”
8.10 Termination of Right of First Refusal. This
Article 8 shall terminate in its entirety and cease to be in
effect on the first to occur of the following:
(a) the closing of the first firm underwritten
public offering of equity securities of the corporation; and
(b) December 31, 1992.
-18-
NATIONAL MEDICAL CARE, INC.
Action by Unanimous Written Consent of the Board of Directors
In Lieu of a Meeting
October 16,
2008
The undersigned, being all the Directors of National Medical Care, Inc., a Delaware
corporation (the “Corporation”), hereby consent to the adoption of the following resolutions, which
shall be treated as resolutions for all purposes and as fully as if said resolutions were adopted
at a duly called and held meeting of the Board of Directors, effective as of the date set forth
above:
RESOLVED: That the Fourth Amended and Restated Transfer and Administration Agreement by and
among the Corporation, as Collection Agent, NMC Funding Corporation, as Transferor, the entities
party thereto as Conduit Investors, the financial institutions party thereto as Bank Investors, the
financial institutions party thereto as Administrative Agents, and WestLB AG, New York Branch, as
Agent (the “Agreement”), as previously provided to the Board, be and the same hereby is approved
and adopted, and that each officer of the Corporation be and each hereby is authorized and
directed, acting in the name of and on behalf of the Corporation to execute and deliver the
Agreement, or one or more instruments evidencing the Agreement, with such changes as any such
officer shall, in his sole discretion, deem necessary or advisable, the execution and delivery of
the same to be conclusive evidence of the authority granted hereunder.
RESOLVED: That each officer of the Corporation be, and each of them individually hereby is,
authorized and directed, in the name and on behalf of the Corporation, to (a) negotiate, execute
and deliver such other instruments, agreements and/or documents required by, in furtherance of, or
in connection with the Agreement (collectively with the Agreement, the “Transaction Documents”)
with such changes or additions thereto as such officers may approve, the execution by any of such
officers of any such Transaction Documents or the doing by such officer of any action in connection
with the foregoing establishing conclusively such officer’s approval and the approval of the Board
of Directors, and (b) cause the Corporation to perform its obligations thereunder.
RESOLVED: That all action taken and/or any resolutions adopted by the Corporation’s current
Board of Directors and officers in connection with the negotiation and execution of the
Transaction Documents be, and hereby are, ratified, affirmed and approved.
[Signature page to follow]
IN WITNESS WHEREOF, the undersigned have executed this consent effective as of the
date set forth above.
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/s/ Mats Wahlstrom
Mats Wahlstrom
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/s/
Ronald J. Kuerbitz
Ronald J. Kuerbitz
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EXHIBIT M
to
FOURTH AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
FORM OF CERTIFICATE
FORM OF
CERTIFICATE
THIS
CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE TRANSFERRED, ASSIGNED,
EXCHANGED OR
CONVEYED EXCEPT IN ACCORDANCE WITH THE TRANSFER AND ADMINISTRATION AGREEMENT
REFERRED TO HEREIN. THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF, AS AMENDED, OR UNDER ANY STATE SECURITIES LAWS AND NO TRANSFER HEREOF MAY BE MADE EXCEPT IN
ACCORDANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED AND ANY OTHER
APPLICABLE LAWS.
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No. 1
August 28, 1997
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One Unit |
Evidencing an undivided interest in a pool of accounts receivables generated or otherwise
acquired from time to time in the ordinary course of business by NATIONAL MEDICAL CARE, INC.
and acquired by NMC FUNDING CORPORATION (the “Transferor”).
(Not an interest in or obligation of TRANSFEROR)
This
certifies that NATIONSBANK, N.A., on behalf of and as agent for Enterprise Funding
Corporation and the Bank Investors
(as defined in the Agreement), as their respective interests may appear from time to time, is the registered
owner of an undivided interest in a pool of accounts receivables (the
“Receivables”) pursuant
to a Transfer and Administration Agreement among the Transferor, National Medical Care Inc, as
initial “Collection Agent”, Enterprise Funding Corporation,
NationsBank, N.A. and certain
financial institutions named therein, dated as of August 28, 1997 (the “Agreement”). The
Receivables consist of all accounts receivables generated under the Contracts from time to
time hereafter, all monies due or to become due in payment of the
Receivables and the other assets
and interests as provided in the Agreement.
To the extent not defined herein, capitalized terms used herein have the meanings
assigned to such terms in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement, as amended from
time to time, the holder hereof by virtue of the acceptance hereof assents and by which the
holder hereof is bound. In the event of any inconsistency or conflict between the terms of
this Certificate and the terms of the Agreement shall control.
This Certificate represents an undivided interest in the Receivables, including the right
to receive Collections and other amounts at the times and in the amounts specified in the
Agreement. The aggregate interest in the Receivables represented by this Certificate at any
time shall equal the Percentage Factor as determined in accordance with the Agreement.
IN WITNESS WHEREOF, the Transferor has caused this Certificate to be duly
executed.
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NMC FUNDING CORPORATION
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By: |
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Name: |
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Title: |
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EXHIBIT N
to
FOURTH AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
LIST OF APPROVED FISCAL INTERMEDIARIES
Fresenius Medical Services Fiscal Intermediary List 10/10/08
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|
|
LEGAL NAME |
|
Fiscal Intermediary |
Bio-Medical Applications of Aguadilla, Inc.
|
|
TrailBlazers Hlth Enterprises |
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|
Bio-Medical Applications of Alabama, Inc.
|
|
Riverbend Govt Benefits |
|
|
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Bio-Medical Applications of Anacostia, Inc.
|
|
National Government Services |
|
|
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Bio-Medical Applications of Arecibo, Inc.
|
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TrailBlazers Hlth Enterprises |
|
|
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Bio-Medical Applications of Arkansas, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
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Bio-Medical Applications of Bayamon, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
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Bio-Medical Applications of Blue Springs, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of Caguas, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of California, Inc.
|
|
TrailBlazers Hlth Enterprises
Palmetto Govt Svcs |
|
|
|
Bio-Medical Applications of Camarillo, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of Capitol Hill, Inc.
|
|
National Government Services |
|
|
|
Bio-Medical Applications of Carolina, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of Carson, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of Clinton, Inc.
|
|
CAHABA |
|
|
|
Bio-Medical Applications of Columbia Heights, Inc.
|
|
National Government Services |
|
|
|
Bio-Medical Applications of Connecticut, Inc.
|
|
National Government Services |
|
|
|
Bio-Medical Applications of Delaware, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of Dover, Inc.
|
|
National Government Services |
|
|
|
Bio-Medical Applications of Eureka, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of Fayetteville, Inc.
|
|
CAHABA |
|
|
|
Bio-Medical Applications of Florida, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of Fremont, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of Fresno, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of Georgia, Inc.
|
|
Riverbend Govt Benefits |
|
|
|
Bio-Medical Applications of Guayama, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of Humacao, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of Illinois, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of Indiana, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of Kansas, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of Kentucky, Inc.
|
|
National Government Services |
|
|
|
Bio-Medical Applications of Long Beach, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of Los Gatos, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of Louisiana, LLC
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of Maine, Inc.
|
|
National Government Services |
|
|
|
Bio-Medical Applications of Manchester, Inc.
|
|
National Government Services |
|
|
|
Bio-Medical Applications of Maryland, Inc.
|
|
National Government Services |
|
|
|
Bio-Medical Applications of Massachusetts, Inc.
|
|
National Government Services |
|
|
|
Bio-Medical Applications of Mayaguez, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of Michigan, Inc.
|
|
TrailBlazers Hlth Enterprises |
Fresenius Medical Services Fiscal Intermediary List 10/10/08
|
|
|
LEGAL NAME |
|
Fiscal Intermediary |
Bio-Medical Applications of Minnesota, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of Mission Hills, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of Mississippi, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of Missouri, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of Nevada, Inc.
|
|
Noridian |
|
|
|
Bio-Medical Applications of New Hampshire, Inc.
|
|
National Government Services |
|
|
|
Bio-Medical Applications of New Jersey, Inc.
|
|
National Government Services |
|
|
|
Bio-Medical Applications of New Mexico, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
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Bio-Medical Applications of North Carolina, Inc.
|
|
CAHABA
Palmetto Govt Svcs |
|
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Bio-Medical Applications of Northeast D.C., Inc.
|
|
National Government Services |
|
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Bio-Medical Applications of Oakland, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
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Bio-Medical Applications of Ohio, Inc.
|
|
TrailBlazers Hlth Enterprises
National Government Services |
|
|
|
Bio-Medical Applications of Oklahoma, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of Pennsylvania, Inc.
|
|
National Government Services
National Government Services |
|
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Bio-Medical Applications of Ponce, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of Puerto Rico, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
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|
Bio-Medical Applications of Rio Piedras, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of San Antonio, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of San German, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of San Juan, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of South Carolina, Inc.
|
|
Palmetto Govt Svcs |
|
|
|
Bio-Medical Applications of Southeast Washington, Inc.
|
|
National Government Services |
|
|
|
Bio-Medical Applications of Tennessee, Inc.
|
|
National Government Services Riverbend Govt Benefits
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of Texas, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Bio-Medical Applications of the District of Columbia, Inc.
|
|
National Government Services |
|
|
|
Bio-Medical Applications of Virginia, Inc.
|
|
National Government Services |
|
|
|
Bio-Medical Applications of West Virginia, Inc.
|
|
National Government Services |
|
|
|
Bio-Medical Applications of Wisconsin, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Brazoria Kidney Center, Inc.
|
|
Trailblazer |
|
|
|
Brevard County Dialysis, LLC
|
|
First Coast |
|
|
|
Clayton County Dialysis, LLC
|
|
BC of Georgia |
|
|
|
Clermont Dialysis Center, LLC
|
|
First Coast |
|
|
|
Columbus Area Renal Alliance, LLC
|
|
National Government Services |
|
|
|
Conejo Valley Dialysis, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Dialysis America Georgia, LLC
|
|
Riverbend Govt Benefits |
|
|
|
Dialysis Associates of Northern New Jersey, L.L.C.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Dialysis Associates, LLC
|
|
BC of Georgia |
Fresenius Medical Services Fiscal Intermediary List 10/10/08
|
|
|
LEGAL NAME |
|
Fiscal Intermediary |
Dialysis Centers of America — Illinois, Inc.
|
|
National Government Services |
|
|
|
Dialysis Management Corporation
|
|
Trailblazer |
|
|
|
Dialysis Specialists of Topeka, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Dialysis Specialists of Tulsa, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Douglas County Dialysis, LLC
|
|
BC of Georgia |
|
|
|
Du Page Dialysis, Ltd.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Everest Healthcare Indiana, Inc.
|
|
TrailBlazers Hlth Enterprises
National Government Services |
|
|
|
Everest Healthcare Ohio, Inc.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Everest Healthcare Rhode Island, Inc.
|
|
National Government Services |
|
|
|
Everest Healthcare Texas, L.P.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Fondren Dialysis Clinic, Inc.
|
|
Trailblazer |
|
|
|
Fort Scott Regional Dialysis Center, Inc.
|
|
Trailblazer |
|
|
|
Four State Regional Dialysis Center, Inc.
|
|
Trailblazer |
|
|
|
Fresenius Medical Care Dialysis Services — Oregon, LLC
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Fresenius Medical Care Dialysis Services Colorado LLC
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Henry Dialysis Center, LLC
|
|
BC of Georgia |
|
|
|
Holton Dialysis Clinic, LLC
|
|
BC of Georgia |
|
|
|
Home Dialysis of Muhlenburg County, Inc.
|
|
National Government Services |
|
|
|
Jefferson County Dialysis, Inc.
|
|
Trailblazer |
|
|
|
KDCO, Inc.
|
|
Trailblazer |
|
|
|
Kentucky Renal Care Group, LLC
|
|
National Government Services |
|
|
|
Lawton Dialysis, Inc.
|
|
Trailblazer |
|
|
|
Little Rock Dialysis, Inc.
|
|
Trailblazer |
|
|
|
Maumee Dialysis Services, LLC
|
|
National Government Services |
|
|
|
Miami Regional Dialysis Center, Inc.
|
|
Trailblazer |
|
|
|
Michigan Home Dialysis Center, Inc.
|
|
Riverbend Govt Benefits |
|
|
|
National Medical Care, Inc.
|
|
TrailBlazers Hlth Enterprises
National Government Services
Riverbend Govt Benefits |
|
|
|
National Nephrology Associates of Texas, L.P.
|
|
BC of Georgia |
|
|
|
NNA of Alabama, Inc.
|
|
BC of Georga |
|
|
|
NNA of East Orange, L.L.C.
|
|
BC of Georgia |
|
|
|
NNA of Florida, LLC
|
|
BC of Georga |
|
|
|
NNA of Georgia, Inc.
|
|
BC of Georgia |
|
|
|
NNA of Harrison, L.L.C.
|
|
BC of Georgia |
|
|
|
NNA of Louisiana, LLC
|
|
BC of Georga |
|
|
|
NNA of Oklahoma, L.L.C.
|
|
BC of Georgia |
|
|
|
NNA of Rhode Island, Inc.
|
|
BC of Georgia |
|
|
|
NNA of Toledo, Inc.
|
|
BC of Georgia |
|
|
|
NNA-Saint Bamabas, L.L.C.
|
|
BC of Georgia |
Fresenius Medical Services Fiscal Intermediary List 10/10/08
|
|
|
LEGAL NAME |
|
Fiscal Intermediary |
NNA-Saint Bamabas-Livingston, L.L.C.
|
|
BC of Georgia |
|
|
|
Norcross Dialysis Center, LLC
|
|
BC of Georgia |
|
|
|
Northern New Jersey Dialysis, LLC
|
|
TrailBlazers Hlth Enterprises |
|
|
|
Physicians Dialysis Company, Inc.
|
|
National Government Services
Riverbend |
|
|
|
QUALICENTERS ALBANY, LTD.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
QUALICENTERS BEND, LLC
|
|
TrailBlazers Hlth Enterprises |
|
|
|
QUALICENTERS COOS BAY, LTD.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
QUALICENTERS EUGENE-SPRINGFIELD, LTD.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
QUALICENTERS INLAND NORTHWEST, LLC
|
|
TrailBlazers Hlth Enterprises |
|
|
|
QUALICENTERS PUEBLO, LLC
|
|
TrailBlazers Hlth Enterprises |
|
|
|
QUALICENTERS SALEM, LLC
|
|
TrailBlazers Hlth Enterprises |
|
|
|
QUALICENTERS SIOUX CITY, LLC
|
|
TrailBlazers Hlth Enterprises |
|
|
|
QUALITY CARE DIALYSIS CENTER OF VEGA BAJA, INC.
|
|
TrailBlazers Hlth Enterprises |
|
|
|
RCG Bloomington, LLC
|
|
National Government Services |
|
|
|
RCG East Texas, LLP
|
|
Trailblazer |
|
|
|
RCG Indiana, L.L.C.
|
|
National Government Services |
|
|
|
RCG Irving, LLP
|
|
Trailblazer |
|
|
|
RCG Martin, LLC
|
|
Riverbend |
|
|
|
RCG Memphis East, LLC
|
|
Riverbend |
|
|
|
RCG Mississippi, Inc.
|
|
Trailblazer
Trispan |
|
|
|
RCG University Division, Inc.
|
|
National Government Services
Riverbend |
|
|
|
Renal Care Group Alaska, Inc.
|
|
Noridian |
|
|
|
Renal Care Group East, Inc.
|
|
Highmark Medicare Services |
|
|
|
Renal Care Group Northwest, Inc.
|
|
Noridian |
|
|
|
Renal Care Group of the Midwest, Inc.
|
|
Riverbend
Trailblazer |
|
|
|
Renal Care Group of the Ozarks, LLC
|
|
Trailblazer |
|
|
|
Renal Care Group of the South, Inc.
|
|
Riverbend |
|
|
|
Renal Care Group of the Southeast, Inc.
|
|
Riverbend |
|
|
|
Renal Care Group South New Mexico, LLC
|
|
Trailblazer |
|
|
|
Renal Care Group Texas, Inc.
|
|
Trailblazer |
|
|
|
Renal Care Group Westlake, LLC
|
|
National Government Services |
|
|
|
Renex Dialysis Clinic of Bloomfield, Inc.
|
|
BC of Georgia |
|
|
|
Renex Dialysis Clinic of Bridgeton, Inc.
|
|
BC of Georgia |
|
|
|
Renex Dialysis Clinic of Creve Coeur, Inc.
|
|
BC of Georgia |
|
|
|
Renex Dialysis Clinic of Doylestown, Inc.
|
|
BC of Georgia |
|
|
|
Renex Dialysis Clinic of Maplewood, Inc.
|
|
BC of Georgia |
|
|
|
Renex Dialysis Clinic of Orange, Inc.
|
|
BC of Georgia |
Fresenius Medical Services Fiscal Intermediary List 10/10/08
|
|
|
LEGAL NAME |
|
Fiscal Intermediary |
Renex
Dialysis Clinic of Penn Hills, Inc.
|
|
BC of Georgia |
|
|
|
Renex Dialysis Clinic of Pittsburgh, Inc.
|
|
Riverbend
BC of Georgia |
|
|
|
Renex Dialysis Clinic of Shaler, Inc.
|
|
BC of Georgia |
|
|
|
Renex Dialysis Clinic of South Georgia, Inc.
|
|
BC of Georgia |
|
|
|
Renex Dialysis Clinic of St. Louis, Inc.
|
|
BC of Georgia |
|
|
|
Renex Dialysis Clinic of Union, Inc.
|
|
BC of Georgia |
|
|
|
Renex Dialysis Clinic of University City, Inc.
|
|
BC of Georgia |
|
|
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Renex Dialysis Clinic of Woodbury, Inc.
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BC of Georgia |
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Renex Dialysis Facilities, Inc.
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BC of Georgia |
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San Diego Dialysis Services, Inc.
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TrailBlazers Hlth Enterprises |
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Santa Barbara Community Dialysis Center, Inc.
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TrailBlazers Hlth Enterprises |
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Smyma Dialysis Center, LLC
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BC of Georgia |
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SSKG, Inc.
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National Government Services |
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STAT Dialysis Corporation
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Trailblazer |
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Stone Mountain Dialysis Center, LLC
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BC of Georgia |
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Stuttgart Dialysis, LLC
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Trailblazer |
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Terrell Dialysis Center, LLC
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TrailBlazers Hlth Enterprises |
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Three Rivers Dialysis Services, LLC
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National Government Services |
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West Palm Dialysis, LLC
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First Coast |
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Wharton Dialysis, Inc.
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Trailblazer |
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WSKC Dialysis Services, Inc.
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TrailBlazers Hlth Enterprises |
EXHIBIT O
to
FOURTH AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
FORM OF TRANSFERRING AFFILIATE LETTER
EXECUTION COPY
AMENDED AND RESTATED TRANSFERRING AFFILIATE LETTER
Dated as of October 16, 2008
NATIONAL MEDICAL CARE, INC.
920 Winter Street
Waltham, MA 02451
Attention: Mark Fawcett
Dear Sirs:
We refer to the Amended and Restated Receivables Purchase Agreement dated as of October 16, 2008
between National Medical Care, Inc. (the “Seller”) and NMC Funding Corporation (the “Purchaser”)
(such Agreement, as it may be amended, supplemented or otherwise modified from time to time being
the “Agreement”). The undersigned Transferring Affiliates are parties to that certain Transferring
Affiliate Letter dated as of August 28, 1997 (as amended prior to the date hereof, the “Existing
Transferring Affiliate Letter’). The undersigned Transferring Affiliates hereby desire to amend and
restate the Existing Transferring Affiliate Letter. Capitalized terms used and not otherwise
defined in this Amended and Restated Transferring Affiliate Letter (this “Transferring Affiliate
Letter”) have the meanings specified in the Agreement or, if not defined in the Agreement, in the
Transfer and Administration Agreement referred to therein.
Effective as of the date hereof, this Transferring Affiliate Letter amends, restates and supersedes
the Existing Transferring Affiliate Letter. This Transferring Affiliate Letter is not intended to
constitute a novation of any obligations under the Existing Transferring Affiliate Letter. Upon the
effectiveness of this Transferring Affiliate Letter, each reference to the Existing Transferring
Affiliate Letter in any other document, instrument or agreement executed and/or delivered in
connection therewith shall mean and be a reference to this Transferring Affiliate Letter.
1. Each of the undersigned Transferring Affiliates will from time to time forthwith sell to the
Seller, and the Seller will from time to time forthwith purchase from such Transferring Affiliate,
all of the present and future Receivables, and all Related Security, if any, with respect thereto,
which are owed from time to time to such Transferring Affiliate for an amount equal to the face
amount of such Receivables, which amount the Seller shall pay to such Transferring Affiliate in
cash or by way of a credit to such Transferring Affiliate in the appropriate intercompany account
by the last Business Day of the month following the month in which such purchase was made; it being
further agreed that (a) that each such purchase of each such Receivable and Related Security with
respect thereto shall be deemed to be made on the date such Receivable is created, and (b) the
Seller shall settle from time to time each such credit to the account of such Transferring
Affiliate, 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 in accordance
with the Seller’s and such Transferring Affiliate’s cash management and accounting policies.
It is the intention of the Seller and the Purchaser that each Purchase under the Agreement shall
constitute a sale of such Receivables, together with the Related Assets with respect thereto, from
the Seller to the Purchaser, conveying good title thereto free and clear of any Adverse Claims, and
that such Receivables and Related Assets not be part of the Seller’s estate in the event of an
insolvency. If, notwithstanding the foregoing, the transactions contemplated under the Agreement
should be deemed a financing, the Seller and the Purchaser intend that the Seller shall be deemed
to have granted to the Purchaser a first priority perfected and continuing security interest in all
of the Seller’s right, title and interest in, to and under the Receivables, together with the
Related Assets with respect thereto, and together with all of the Seller’s rights hereunder, under
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 the Agreement shall constitute a security agreement under applicable law. The
Seller under the Agreement has assigned to the Purchaser all of its rights and remedies hereunder
and under 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.
2. Each Transferring Affiliate hereby severally agrees as follows:
(a) Such Transferring Affiliate shall make each such sale strictly in accordance with the terms of
this Transferring Affiliate Letter, without regard to whether any other Transferring Affiliate has
performed or failed to perform any of such other Transferring Affiliate’s obligations hereunder.
(b) Such Transferring Affiliate will instruct all Obligors to cause all Collections to be deposited
directly into a Special Account.
(c) Such Transferring Affiliate will act as the Seller’s agent for any Collections received by such
Transferring Affiliate with respect to Receivables sold by such Transferring Affiliate to the
Seller and such Collections will be held in trust and segregated from the other funds of such
Transferring Affiliate until the same are delivered to the Seller. Such Transferring Affiliate
agrees that such Collections constitute the Seller’s property and shall be promptly deposited
directly to a Special Account.
(d) Such Transferring Affiliate will not add or terminate any bank as a Special Account Bank to
or from those listed in Exhibit C to the Agreement, nor make any change in its instructions to
Obligors regarding payments to be made to any Special Account Bank; provided that a
Transferring Affiliate may (A) add any bank as a Special Account Bank for purposes of this
Transferring Affiliate Letter at any time following delivery to the Seller and its assigns of
written
notice of such addition and a Special Account Letter duly executed by such bank, and (B)
terminate any Special Account Bank at any time following delivery to the Seller and its assigns
of written notice of such termination and evidence satisfactory to the Seller and its assigns that
2
the affected Obligors shall have been instructed to remit all subsequent Collections to
another Special Account.
(e) In the event any Transferring Affiliate has instructed its Obligors to remit Collections to a
Special Account that is maintained in the name of any Person other than such Transferring
Affiliate, such Transferring Affiliate shall at all times ensure that such Person qualifies as a
Designated Account Agent, including, without limitation, by causing such Person to execute and
deliver to the Seller an Account Agent Agreement and by causing such Account Agent Agreement to
remain in effect at all times. In furtherance of the foregoing, each such Transferring Affiliate
hereby authorizes and directs each Person maintaining a Special Account on behalf of such
Transferring Affiliate to (i) execute, and deliver to the Seller and its assigns, an Account Agent
Agreement, (ii) execute and deliver a Special Account Letter in respect of each such Special
Account maintained by such Person, and (iii) otherwise take all actions, or omit to take all
actions, required to be taken, or required to be omitted to be taken, by such Transferring
Affiliate with respect to such Special Accounts in accordance with the terms of this Transferring
Affiliate Letter.
3. Each Transferring Affiliate shall provide (or, if applicable, shall cause its Designated Account
Agents to provide) standing instructions to each Special Account Bank (which standing
instructions shall be maintained in full force and effect at all times) to transfer, prior to the
close
of business each banking day (i) all Collections on deposit during such banking day in the
Special Accounts at such Special Account Bank to the Concentration Account or an Intermediate
Concentration Account and (ii) if an Intermediate Concentration Account has been established at
such Special Account Bank, all Collections on deposit during such banking day in such
Intermediate Concentration Account to the Concentration Account; 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 to the Intermediate Concentration Account, as applicable, on
the next succeeding banking day in which Collections in such Special Account first exceed the
Minimum Amount.
4. Each Transferring Affiliate hereby authorizes the Seller and its assigns, to the extent
permitted by applicable law, to take any and all steps in such Transferring Affiliate’s name and
on behalf of such Transferring Affiliate to collect all amounts due under such Receivables and
Related Security, including, without limitation, endorsing such Transferring Affiliate’s name on
checks and other instruments representing collections and enforcing such Receivables and
Related Security and the related Contracts; provided, however, neither that the Seller nor any of
its assigns shall have the power or authority to direct Obligors of Receivables or Related Security
payable under the CHAMPUS/VA, Medicare or Medicaid program to make payments of
amounts due or to become due to such Transferring Affiliate in respect of such Receivables or
Related Security directly either to the Intermediate Concentration Account or the Concentration
Account or to the Seller, the Seller’s assigns or any of their respective designees, 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.
3
5. Each Transferring Affiliate agrees that from time to time, to the extent permitted by
applicable law, it will promptly execute and deliver all further instruments and documents, and
take all further action that the Seller or its assigns may reasonably request in order to perfect,
protect or more fully evidence the ownership interest of the Seller in the Receivables, Related
Security and Collections, and any interest therein acquired by any assignee of the Seller, or to
enable the Seller or its assigns to exercise or enforce any of their respective rights hereunder or
under the Agreement or the Certificate. Without limiting the generality of the foregoing, each
Transferring Affiliate will, upon the request of the Seller or its assigns: (i) execute and file
such
financing or continuation statements, or amendments thereto or assignments thereof, and such
other instruments or notices, as may be necessary or appropriate in order to perfect, protect or
evidence the ownership interest of the Seller or the interest of any assignee thereof; (ii) mark
conspicuously each of its records evidencing each Receivable and Related Security and the
related Contract with a legend, acceptable to the Seller and its assigns, evidencing that such
Receivable and Related Security have been sold in accordance with this Transferring Affiliate
Letter, the Agreement or any document, instrument or agreement made in favor of any assignee;
and (iii) mark its master data processing records evidencing such Receivables and Related
Security and related Contracts with such legend. Each Transferring Affiliate hereby authorizes
the Seller to file one or more financing or continuation statements, and amendments thereto and
assignments thereof, relative to the Receivables and Related Security sold by it to the Seller or
any assignee now existing or hereafter arising without the signature of such Transferring
Affiliate where permitted by law. If any Transferring Affiliate fails to perform any of its
agreements or obligations under this Letter, the Seller or any of its assigns may (but shall not be
required to) itself perform, or cause performance of, such agreement or obligation, and the
expenses of the Seller or any of its assigns incurred in connection therewith shall be payable by
such Transferring Affiliate.
6. Each Transferring Affiliate hereby severally represents and warrants as to itself as follows:
(a) Such Transferring Affiliate is a corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdiction in which it is organized and existing and is duly
qualified to do business, and is in good standing, in every jurisdiction where the nature of its
business requires it to be so qualified and where the failure to so qualify would materially and
adversely affect the business, condition, operations or properties of such Transferring Affiliate.
(b) The execution, delivery and performance by such Transferring Affiliate of this Transferring
Affiliate Letter are within such Transferring Affiliate’s corporate powers, have been duly
authorized by all necessary corporate action, do not contravene (i) such Transferring Affiliate’s
charter or by-laws, (ii) any law, rule or regulation, including, without limitation the Social
Security Act, any CHAMPUS Regulation, any Medicaid Regulation or any Medicare Regulation
or (iii) any contractual or legal restriction binding on or affecting such Transferring Affiliate
or
its properties, and do not result in or require the creation of any Adverse Claim (other than
pursuant hereto) upon or with respect to any of its properties; and no transaction contemplated
hereby requires compliance with any bulk sales act or similar law.
4
(c) No authorization or approval or other action by, and no notice to or filing with,
any
governmental authority or regulatory body is required for the due execution, delivery and
performance by such Transferring Affiliate of this Transferring Affiliate Letter or for the
perfection of or the exercise by the Seller or any assignee thereof of their respective rights and
remedies under this Transferring Affiliate Letter, except for the filings of the financing
statements referred to in Article IV of the TAA, all of which, on or prior to the date of the
initial
purchase thereunder, will have been duly made and be in full force and effect.
(d) This Transferring Affiliate Letter is the legal valid and binding obligation of such
Transferring Affiliate enforceable against such Transferring Affiliate in accordance with its
terms, except as may be limited by the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights generally and by general
principles of equity.
(e) Such Transferring Affiliate will be, at the time of each sale hereunder, the legal and
beneficial owner of each Receivable, and any Related Security with respect thereto, originally
owed to such Transferring Affiliate and sold from time to time to the Seller hereunder, free and
clear of any Adverse Claim except as created by the Agreement (or any subsequent assignment
by the assignee thereunder). Upon each such sale of each such Receivable and Related Security
hereunder, the Seller will acquire all right, title and interest in and to, and a valid and
perfected
first priority 100% ownership interest in, such Receivable and Related Security, and Collections
with respect thereto, free and clear of any Adverse Claim except as created by the Agreement (or
any subsequent assignment by the assignee thereunder). No effective financing statement or
other instrument similar in effect covering any such Receivable or Related Security, or
Collections with respect thereto, is on file in any recording office, except those filed in favor
of
the Seller relating to the Agreement (or any subsequent assignment by the assignee thereunder).
(f) Each Investor Report (to the extent that information contained therein is supplied by such
Transferring Affiliate), information, exhibit, financial statement, document, book, record or
report furnished or to be furnished at any time by such Transferring Affiliate to the Seller or any
of its assigns in connection the Agreement is or will be accurate in all material respects as of
its
date or (except as otherwise disclosed to the Seller or the applicable assignee, as the case may
be,
at such time) as of the date so furnished, and no such document (if not prepared by or under the
direction of such Transferring Affiliate or to the extent that the information contained therein is
not supplied by such Transferring Affiliate, to the best of such Transferring Affiliate’s
knowledge) contains or will contain any untrue statement of a material fact or omits or will omit
to state a material fact necessary in order to make the statements contained therein, in the light
of
the circumstances under which they were made, not misleading.
(g) (i) The chief executive office of such Transferring Affiliate, except NMC Medical Products,
Inc., is located at 920 Winter Street, Waltham, Massachusetts 02451, and (ii) the office where
such Transferring Affiliate keeps its records concerning the Receivables is located at the address
specified for such Transferring Affiliate in Exhibit J to the Agreement (or, in the case of each of
clauses (i) or (ii) above, at such other locations, notified to the Seller and its assigns in
5
accordance with Section 2.6 of the Agreement, in jurisdictions where all action
required by Section 2.6 of the Agreement has been taken and completed).
(h) The names and addresses of all the Special Account Banks, together with the account numbers of
the Special Accounts and the account numbers of the Intermediate Concentration Account, at such
Special Account Banks and, if applicable, the name of each Designated Account Agent, are specified
in Exhibit C to the Agreement (or at such other Special Account Banks, with such other Special
Accounts, Intermediate Concentration Account or with such other Designated Account Agents in
respect of which all of the requirements set forth in Section 5.2(e) of the Agreement have been
satisfied).
Each Transferring Affiliate acknowledges that it has received a copy of the Agreement and hereby
severally represents and warrants that each representation and warranty made by the Seller under
the Agreement in respect of such Transferring Affiliate, or in respect of any of the assets or
properties of such Transferring Affiliate, is true and correct and shall be true and correct on
each date under the Agreement on which the Seller is required to remake (or is deemed to have
remade) any such representation and warranty for the benefit of the Purchaser. In addition, with
respect to any covenant or undertaking required to be performed by the Seller under the Agreement
which relates to any Transferring Affiliate or the assets or properties of such Transferring
Affiliate, such Transferring Affiliate severally agrees to take all action, or if applicable to
omit to take any action, the taking (or omission to take) of which enables the Seller to comply
fully and on a timely basis with the terms and conditions of such covenant or undertaking.
7. Anything to the contrary herein notwithstanding, all CHAMPUS/VA, 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 Transferring Affiliate which furnished the services
for which such payments are made or (ii) an agent of such Transferring Affiliate, except to
the
extent that an Obligor may be required to submit any such payments directly to a Person other
than a Transferring Affiliate pursuant to a court-ordered assignment which is valid, binding and
enforceable under applicable federal and state CHAMPUS/VA, Medicare and Medicaid laws,
rules and regulations; and this Transferring Affiliate Letter shall not be construed to permit any
other Person, in violation of applicable federal and state CHAMPUS/VA, Medicare or Medicaid
laws, rules and regulations to collect or receive, or to be entitled to collect or receive, any
such
payments prior to a Transferring Affiliate’s or such agent’s receipt thereof.
8. No amendment or waiver of any provision of this Transferring Affiliate Letter, and no
consent to any departure by any Transferring Affiliate herefrom, shall in any event be effective
unless the same shall be in writing and signed by the Seller, each assignee of the Seller and the
Transferring Affiliate or Transferring Affiliates to be bound thereby (or, in the case of waiver,
by
the party or parties waiving the provision hereof), and then such amendment, waiver or consent
shall be effective only in the specific instance and for the specific purpose for which given.
9. All notices and other communications provided for hereunder shall, unless otherwise
stated herein, be in writing (including telecopier, telegraphic, telex or cable communication) and
mailed, telecopied, telegraphed, telexed, cabled or delivered, as to each party hereto, at its
6
address set forth, in the case of each Transferring Affiliate, as its chief executive
office on Exhibit J to the Agreement; in the case of the Seller, under its name on the signature
pages of the Agreement; in the case of any assignee of the Seller, such address as shall have been
notified by such assignee to the Transferring Affiliates; or, in the case of each party hereto (or
any such assignee), at such other address as shall be designated by such party in a written notice
to the Seller and its assignees. All such notices and communications shall, when mailed,
telecopied, telegraphed, telexed or cabled, be effective when deposited in the mails, telecopied,
delivered to the telegraph company, confirmed by telex answerback or delivered to the cable
company, respectively.
10. This Transferring Affiliate Letter shall be binding upon, and inure to the benefit of, and
be enforceable by, each Transferring Affiliate, the Seller and their respective successors and
assigns, except that no Transferring Affiliate shall have the right to assign its rights hereunder
or
any interest herein without the prior written consent of the Seller and its assigns.
11. The Seller may assign at any time any or all of its rights and obligations hereunder and
interests herein to any other Person without the consent of the any Transferring Affiliate.
Without limiting the foregoing, each Transferring Affiliate acknowledges that (i) the Seller,
pursuant to the Agreement, shall assign to the Purchaser all of its right, title and interest in
and to
the Receivables and the Related Security, together with all of its rights, remedies, powers and
privileges hereunder, (ii) the Purchaser, pursuant to that certain Fourth Amended and Restated
Transfer and Administration Agreement dated as of October 16, 2008 (as amended, restated,
supplemented or otherwise modified from time to time, the “TAA”) among the Purchaser, as
“Transferor”, the Seller, as the initial “Collection Agent” thereunder, the Persons parties thereto
as “Conduit Investors”, the Persons parties thereto as “Bank Investors” (together with the
Conduit Investors, the “Investors”), the Persons parties thereto as “Administrative Agents” and
WestLB AG, New York Branch, as agent (in such capacity, the “Agent”), shall assign to the
Agent, for the benefit of the Investors, an undivided percentage ownership interest in all of the
Purchaser’s right, title and interest in and to the Receivables and the Related Security, together
with all of the Purchaser’s rights, remedies, powers and privileges hereunder, and (iii) the Agent
or any Investor may further assign such rights, interests, remedies, powers and privileges to the
extent permitted in the TAA. Each Transferring Affiliate agrees that the Agent, as the assignee
of the Seller, shall, subject to the terms of the TAA, have the right to enforce this Transferring
Affiliate Letter and to exercise directly all of the Seller’s rights and remedies under this
Transferring Affiliate Letter (including, without limitation, the right to give or withhold any
consents or approvals of the Seller to be given or withheld hereunder) and each Transferring
Affiliate agrees to cooperate fully with the Agent and the Collection Agent in the exercise of
such rights and remedies. Each Transferring Affiliate agrees to give to the Agent copies of all
notices it is required to give to the Seller hereunder and to permit the Agent and the Investors
(and their assignees) to inspect the books and records of such Transferring Affiliate relating to
the Receivables and the Related Security at any time, upon reasonable notice given by the Agent
or such Investor to the Seller and such Transferring Affiliate. Each Transferring Affiliate agrees
that, to the extent the Seller is herein permitted to take any action or to provide any information
or report, the Agent and the Investors (and their assignees) may similarly so direct and require
(with or without the concurrence of the Seller) such Transferring Affiliate to take such action or
7
to provide such information or report. This Transferring Affiliate Letter shall create and
constitute the continuing obligations of the parties hereto in accordance with its terms, and shall
remain in full force and effect until the date (the “Collection Date”) that the TAA shall be
terminated in accordance with its terms and all “Aggregate Unpaids” thereunder paid in full;
provided, however, that the rights and remedies with respect to any breach of any
representation and warranty made by any Transferring Affiliate hereunder shall be continuing and
shall survive any termination of this Transferring Affiliate Letter.
12. Each Transferring Affiliate 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 institute against, or join any other Person in
instituting against, such Conduit Investor any bankruptcy, reorganization, arrangement
insolvency or liquidation proceedings or other similar proceeding under the laws of the United
States or any state of the United States. Each Transferring Affiliate further covenants and agrees
that, prior to the date which is one year and one day after the Collection Date, it will not
institute
against, or join any other Person in instituting against, the Purchaser any bankruptcy,
reorganization, arrangement insolvency or liquidation proceedings or other similar proceeding
under the laws of the United States or any state of the United States.
13. No failure on the part of the Seller or any assignee thereof to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof or the exercise of
any other right. The remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
14. This Transferring Affiliate Letter shall be governed by, and construed in accordance with,
the laws of the State of New York, except to the extent that the perfection of the interests of the
Seller and its assigns, or remedies hereunder, in respect of the Receivables, any Related Security
or any Collections in respect thereof, are governed by the laws of a jurisdiction other than the
State of New York.
15. The Seller and each of its assignees (including the Agent) is hereby authorized by each of
the Transferring Affiliates and the Seller to demand specific performance of this Transferring
Affiliate Letter at any time when any of the Transferring Affiliates or the Seller shall have
failed
to comply with any of the provisions of this Transferring Affiliate Letter applicable to any such
Transferring Affiliate or the Seller. Each of the Transferring Affiliates and the Seller hereby
irrevocable waives any defense based on the adequacy of a remedy at law, which might be
asserted as a bar to such remedy of specific performance.
16. This Transferring Affiliate Letter 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.
8
[Remainder of page intentionally left blank]
9
Very truly yours,
ANGLETON DIALYSIS, INC.
ARIZONA RENAL INVESTMENTS, LLC
BIO-MEDICAL APPLICATIONS HOME DIALYSIS SERVICES, INC.
BIO MEDICAL APPLICATIONS MANAGEMENT COMPANY, INC.
BIO-MEDICAL APPLICATIONS OF ALABAMA, INC.
BIO-MEDICAL APPLICATIONS OF ANACOSTIA, INC.
BIO-MEDICAL APPLICATIONS OF AQUADILLA, INC.
BIO-MEDICAL APPLICATIONS OF ARECIBO, INC.
BIO-MEDICAL APPLICATIONS OF ARKANSAS, INC.
BIO-MEDICAL APPLICATIONS OF BAYAMON, INC.
BIO-MEDICAL APPLICATIONS OF BLUE SPRINGS, INC
BIO-MEDICAL APPLICATIONS OF CAGUAS, INC.
BIO-MEDICAL APPLICATIONS OF CALIFORNIA, INC.
BIO-MEDICAL APPLICATIONS OF CAMARILLO, INC.
BIO-MEDICAL APPLICATIONS OF CAPITOL HILL, INC.
BIO-MEDICAL APPLICATIONS OF CAROLINA, INC.
BIO-MEDICAL APPLICATIONS OF CARSON, INC.
BIO-MEDICAL APPLICATIONS OF CLINTON, INC.
BIO-MEDICAL APPLICATIONS OF COLUMBIA HEIGHTS, INC.
BIO-MEDICAL APPLICATIONS OF CONNECTICUT, INC.
BIO-MEDICAL APPLICATIONS OF DELAWARE, INC.
BIO-MEDICAL APPLICATIONS OF DOVER, INC.
BIO-MEDICAL APPLICATIONS OF EAST ORANGE, INC
BIO-MEDICAL APPLICATIONS OF ESSEX, INC.
BIO-MEDICAL APPLICATIONS OF EUREKA, INC.
BIO-MEDICAL APPLICATIONS OF FAYETTEVILLE, INC.
BIO-MEDICAL APPLICATIONS OF FLORIDA, INC.
BIO-MEDICAL APPLICATIONS OF FREMONT, INC.
BIO-MEDICAL APPLICATIONS OF FRESNO, INC.
BIO-MEDICAL APPLICATIONS OF GEORGIA, INC.
BIO-MEDICAL APPLICATIONS OF GLENDORA, INC.
BIO-MEDICAL APPLICATIONS OF GUAYAMA, INC.
BIO-MEDICAL APPLICATIONS OF HILLSIDE, INC.
BIO-MEDICAL APPLICATIONS OF HOBOKEN, INC.
BIO-MEDICAL APPLICATIONS OF HUMACAO, INC.
10
BIO-MEDICAL APPLICATIONS OF ILLINOIS, INC.
BIO-MEDICAL APPLICATIONS OF INDIANA, INC.
BIO-MEDICAL APPLICATIONS OF IRVINGTON, INC.
BIO-MEDICAL APPLICATIONS OF JERSEY CITY, INC.
BIO-MEDICAL APPLICATIONS OF KANSAS, INC.
BIO-MEDICAL APPLICATIONS OF KENTUCKY, INC.
BIO-MEDICAL APPLICATIONS OF LAS AMERICAS, INC.
BIO-MEDICAL APPLICATIONS OF LONG BEACH, INC.
BIO-MEDICAL APPLICATIONS OF LOS GATOS, INC.
BIO-MEDICAL APPLICATIONS OF LOUISIANA, LLC
BIO-MEDICAL APPLICATIONS OF MAINE, INC.
BIO-MEDICAL APPLICATIONS OF MANCHESTER, INC.
BIO-MEDICAL APPLICATIONS OF MARYLAND, INC.
BIO-MEDICAL APPLICATIONS OF MASSACHUSETTS, INC.
BIO-MEDICAL APPLICATIONS OF MAYAGUEZ, INC.
BIO-MEDICAL APPLICATIONS OF MICHIGAN, INC.
BIO-MEDICAL APPLICATIONS OF MINNESOTA, INC.
BIO-MEDICAL APPLICATIONS OF MISSION HILLS, INC.
BIO-MEDICAL APPLICATIONS OF MISSISSIPPI, INC.
BIO-MEDICAL APPLICATIONS OF MISSOURI, INC.
BIO-MEDICAL APPLICATIONS OF MLK, INC.
BIO-MEDICAL APPLICATIONS OF NEVADA, INC
BIO-MEDICAL APPLICATIONS OF NEW HAMPSHIRE, INC.
BIO-MEDICAL APPLICATIONS OF NEW JERSEY, INC.
BIO-MEDICAL APPLICATIONS OF NEW MEXICO, INC.
BIO-MEDICAL APPLICATIONS OF NORTH CAROLINA, INC.
BIO-MEDICAL APPLICATIONS OF NORTHEAST, D.C., INC.
BIO-MEDICAL APPLICATIONS OF OAKLAND, INC.
BIO-MEDICAL APPLICATIONS OF OHIO, INC.
BIO-MEDICAL APPLICATIONS OF OKLAHOMA, INC.
BIO-MEDICAL APPLICATIONS OF PENNSYLVANIA, INC.
BIO-MEDICAL APPLICATIONS OF PINE BROOK, INC.
BIO-MEDICAL APPLICATIONS OF PONCE, INC.
BIO-MEDICAL APPLICATIONS OF PUERTO RICO, INC.
BIO-MEDICAL APPLICATIONS OF RHODE ISLAND, INC.
BIO-MEDICAL APPLICATIONS OF RIO PIEDRAS, INC.
BIO-MEDICAL APPLICATIONS OF SAN ANTONIO, INC.
BIO-MEDICAL APPLICATIONS OF SAN GERMAN, INC.
11
BIO-MEDICAL APPLICATIONS OF SAN JUAN, INC.
BIO-MEDICAL APPLICATIONS OF SOUTH CAROLINA, INC.
BIO-MEDICAL APPLICATIONS OF SOUTH QUEENS, INC.
BIO-MEDICAL APPLICATIONS OF SOUTHEAST WASHINGTON, INC.
BIO-MEDICAL APPLICATIONS OF TENNESSEE, INC.
BIO-MEDICAL APPLICATIONS OF TEXAS, INC.
BIO-MEDICAL APPLICATIONS OF THE DISTRICT OF COLUMBIA, INC.
BIO-MEDICAL APPLICATIONS OF TRENTON, INC.
BIO-MEDICAL APPLICATIONS OF UKIAH, INC.
BIO-MEDICAL APPLICATIONS OF VIRGINIA, INC.
BIO-MEDICAL APPLICATIONS OF WEST VIRGINIA, INC.
BIO-MEDICAL APPLICATIONS OF WISCONSIN, INC.
BIO-MEDICAL APPLICATIONS OF WOONSOCKET, INC.
BRAZORIA KIDNEY CENTER, INC.
BREVARD COUNTY DIALYSIS, LLC
CARTERSVILLE DIALYSIS CENTER, LLC
CLAYTON COUNTY DIALYSIS, LLC
CLERMONT DIALYSIS CENTER, LLC
COBB COUNTY DIALYSIS, LLC
COLUMBUS AREA RENAL ALLIANCE, LLC
CON MED SUPPLY COMPANY, INC.
CONEJO VALLEY DIALYSIS, INC.
COVINGTON DIALYSIS CENTER, LLC
DIABETES CARE GROUP, INC.
DIALYSIS AMERICA ALABAMA, LLC
DIALYSIS AMERICA GEORGIA, LLC
DIALYSIS ASSOCIATES OF NORTHERN NEW JERSEY, L.L.C.
DIALYSIS ASSOCIATES, LLC
DIALYSIS CENTERS OF AMERICA ILLINOIS, INC.
DIALYSIS LICENSING CORP.
DIALYSIS MANAGEMENT CORPORATION
DIALYSIS SERVICES OF ATLANTA, INC.
DIALYSIS SERVICES OF CINCINNATI, INC.
DIALYSIS SERVICES, INC.
DIALYSIS SPECIALISTS OF TOPEKA, INC.
DIALYSIS SPECIALISTS OF TULSA, INC.
DOUGLAS COUNTY DIALYSIS, LLC
DOYLESTOWN ACUTE RENAL SERVICES, L.L.C.
DU PAGE DIALYSIS, LTD.
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EVEREST HEALTHCARE HOLDINGS, INC.
EVEREST HEALTHCARE INDIANA, INC.
EVEREST HEALTHCARE OHIO, INC.
EVEREST HEALTHCARE RHODE ISLAND, INC.
EVEREST HEALTHCARE TEXAS HOLDING CORP
EVEREST HEALTHCARE TEXAS, LP
EVEREST MANAGEMENT, INC.
FRESENIUS MEDICAL CARE DIALYSIS SERVICES
COLORADO LLC (F/K/A BIO MEDICAL APPLICATIONS OF COLORADO, INC.)
FRESENIUS MEDICAL CARE DIALYSIS SERVICES OREGON, LLC
FMC DIALYSIS SERVICES-OREGON, LLC (F/K/A WILLAMETTE VALLEY KIDNEY CENTER, LLC)
FMS NEW YORK, INC.
FONDREN DIALYSIS CLINIC, INC.
FORT SCOTT REGIONAL DIALYSIS CENTER, INC.
FOUR STATE REGIONAL DIALYSIS CENTER, INC.
FRESENIUS MANAGEMENT SERVICES, INC.
FRESENIUS USA HOME DIALYSIS, INC.
FRESENIUS USA MARKETING, INC.
FRESENIUS USA SALES, INC.
FRESENIUS USA, INC.
GULF REGION MOBILE DIALYSIS, INC.
HAEMO STAT, INC.
HENRY DIALYSIS CENTER, LLC
HOLTON DIALYSIS CLINIC, LLC
HOME DIALYSIS OF AMERICA, INC.
HOME DIALYSIS OF MUHLENBERG COUNTY, INC.
HOME INTENSIVE CARE, INC.
JEFFERSON COUNTY DIALYSIS, INC.
KDCO, INC.
KENTUCKY RENAL CARE GROUP, LLC
LAWTON DIALYSIS, INC.
LITTLE ROCK DIALYSIS, INC.
MAUMEE DIALYSIS SERVICES, LLC
MERCY DIALYSIS CENTER, INC.
MIAMI REGIONAL DIALYSIS CENTER, INC.
MICHIGAN HOME DIALYSIS CENTER, INC.
NAPLES DIALYSIS CENTER, LLC
NATIONAL MEDICAL CARE, INC.
NATIONAL NEPHROLOGY ASSOCIATES
MANAGEMENT COMPANY OF TEXAS, INC.
NATIONAL NEPHROLOGY ASSOCIATES OF TEXAS, L.P.
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NEOMEDICA, INC
NNA MANAGEMENT COMPANY OF KENTUCKY, INC.
NNA MANAGEMENT COMPANY OF LOUISIANA, INC.
NNA OF ALABAMA, INC.
NNA OF EAST ORANGE, L.L.C.
NNA OF FLORIDA, LLC
NNA OF GEORGIA, INC.
NNA OF HARRISON, L.L.C.
NNA OF LOUISIANA, LLC
NNA OF MEMPHIS, LLC
NNA OF NEVADA, INC.
NNA OF NEWARK, L.L.C.
NNA OF OKLAHOMA, INC.
NNA OF OKLAHOMA, L.L.C.
NNA OF RHODE ISLAND, INC.
NNA OF TOLEDO, INC.
NNA PROPERTIES OF TENNESSEE, INC.
NNA-SAINT BARNABAS LIVINGSTON, L.L.C.
NNA-SAINT BARNABAS, L.L.C.
NNA TRANSPORTATION SERVICES CORPORATION
NORCROSS DIALYSIS CENTER, LLC
NORTH BUCKNER DIALYSIS CENTER, INC.
NORTHEAST ALABAMA KIDNEY CLINIC, INC.
NORTHERN NEW JERSEY DIALYSIS, L.L.C.
NORTHWEST DIALYSIS, INC.
PHYSICIANS DIALYSIS COMPANY, INC.
PRIME MEDICAL, INC.
QUALICENTERS, INC.
RCG ARLINGTON HEIGHTS, LLC
RCG BLOOMINGTON, LLC
RCG CREDIT CORPORATION
RCG EAST TEXAS, LLP
RCG FINANCE, INC.
RCG INDIANA, L.L.C.
RCG IRVING, LLP
RCG MARION, LLC
RCG MARTIN, LLC
RCG MEMPHIS EAST, LLC
RCG MEMPHIS, LLC
RCG MISSISSIPPI, INC.
RCG PA MERGER CORP.
RCG UNIVERSITY DIVISION, INC.
RCG WEST HEALTH SUPPLY, L.C.
RCG WHITEHAVEN, LLC
RCG/SAINT LUKE’S, LLC
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RCGIH, INC.
RENAL CARE GROUP ALASKA, INC.
RENAL CARE GROUP CENTRAL MEMPHIS, LLC
RENAL CARE GROUP EAST, INC.
RENAL CARE GROUP MICHIGAN, INC.
RENAL CARE GROUP NORTHWEST, INC.
RENAL CARE GROUP OF THE MIDWEST, INC.
RENAL CARE GROUP OF THE OZARKS, LLC
RENAL CARE GROUP OF THE SOUTH, INC.
RENAL CARE GROUP OF THE SOUTHEAST, INC.
RENAL CARE GROUP OHIO, INC.
RENAL CARE GROUP SOUTH NEW MEXICO, LLC
RENAL CARE GROUP SOUTHWEST HOLDINGS, INC.
RENAL CARE GROUP SOUTHWEST, L.P.
RENAL CARE GROUP TEXAS, INC.
RENAL CARE GROUP TEXAS, LP
RENAL CARE GROUP WESTLAKE, LLC
RENAL CARE GROUP, INC.
RENAL SCIENTIFIC SERVICES, INC.
RENALNET ARIZONA, INC.
RENALNET, INC.
RENALPARTNERS OF INDIANA, LLC
RENALPARTNERS, INC.
RENEX CORP.
RENEX DIALYSIS CLINIC OF AMESBURY, INC.
RENEX DIALYSIS CLINIC OF BLOOMFIELD, INC.
RENEX DIALYSIS CLINIC OF BRIDGETON, INC.
RENEX DIALYSIS CLINIC OF CREVE COEUR, INC.
RENEX DIALYSIS CLINIC OF DOYLESTOWN, INC.
RENEX DIALYSIS CLINIC OF MAPLEWOOD, INC.
RENEX DIALYSIS CLINIC OF NORTH ANDOVER, INC.
RENEX DIALYSIS CLINIC OF ORANGE, INC.
RENEX DIALYSIS CLINIC OF PENN HILLS, INC.
RENEX DIALYSIS CLINIC OF PHILADELPHIA, INC.
RENEX DIALYSIS CLINIC OF PITTSBURGH, INC.
RENEX DIALYSIS CLINIC OF SHALER, INC.
RENEX DIALYSIS CLINIC OF SOUTH GEORGIA, INC.
RENEX DIALYSIS CLINIC OF ST. LOUIS, INC.
RENEX DIALYSIS CLINIC OF TAMPA, INC.
RENEX DIALYSIS CLINIC OF UNION, INC.
RENEX DIALYSIS CLINIC OF UNIVERSITY CITY, INC.
RENEX DIALYSIS CLINIC OF WOODBURY, INC.
RENEX DIALYSIS FACILITIES, INC.
RENEX DIALYSIS HOMECARE OF GREATER ST. LOUIS, INC.
15
RENEX MANAGEMENT SERVICES, INC.
SAN DIEGO DIALYSIS SERVICES, INC.
SANTA XXXXXXX COMMUNITY DIALYSIS CENTER
SMYRNA DIALYSIS CENTER, LLC
SPECTRA EAST, INC.
SPECTRA LABORATORIES, INC.
SSKG, INC.
STAT DIALYSIS CORPORATION
STONE MOUNTAIN DIALYSIS CENTER, LLC
STUTTGART DIALYSIS, LLC
XXXXXXX DIALYSIS CENTER, L.L.C.
THREE RIVERS DIALYSIS SERVICES, LLC
WEST PALM DIALYSIS, LLC
XXXXXXX DIALYSIS, INC.
WSKC DIALYSIS SERVICES, INC.
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Acknowledged and accepted:
NATIONAL MEDICAL CARE, INC. |
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NMC FUNDING CORPORATION |
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The undersigned acknowledges and accepts the foregoing, and hereby gives notice to each
Transferring Affiliate that, for purposes of Section 9 of the Transferring Affiliate Letter, the
address of the undersigned is WestLB AG, New York Branch.
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WestLB AG, New York Branch
as Agent |
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17
EXHIBIT P
to
FOURTH AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
FORM OF PARENT AGREEMENT
EXECUTION COPY
AMENDED AND RESTATED PARENT AGREEMENT
This AMENDED AND RESTATED PARENT AGREEMENT (this “Agreement”), dated as of October 16, 2008,
made by FRESENIUS MEDICAL CARE HOLDINGS, INC., a New York corporation (“FMCH”), and 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”) (FMCH and FME KGaA being hereinafter referred to, collectively,
as the “Companies” and, each individually, as a “Company”), in favor of NMC FUNDING CORPORATION
(“NMC Funding”) and WESTLB AG, NEW YORK BRANCH, as agent (the “Agent”) for the Investors under (as
defined in) the Transfer and Administration Agreement referred to below.
PRELIMINARY STATEMENTS:
(1) National Medical Care, Inc., a Delaware corporation (“NMC”) has entered into that certain
Amended and Restated Transferring Affiliate Letter (as the same may from time to time be amended,
restated, supplemented or otherwise modified, the “Transferring Affiliate Letter”) dated as of even
date herewith with each of the “Transferring Affiliates” named therein, under which each such
Transferring Affiliate has agreed to sell and assign on each day hereafter all of its right, title
and interest in and to each “Receivable” and all “Related Security” (each as defined therein) to
NMC in accordance with the terms thereof.
(2) NMC has entered into that certain Receivables Purchase Agreement (as the same may from
time to time be amended, restated, supplemented or otherwise modified, the “BMA Transfer
Agreement”) dated as of August 28, 1997 with Bio-Medical Management Company, Inc., a Delaware
corporation (“BMA”), under which BMA has agreed to sell and assign on the date hereof all of its
right, title and interest in and to each “Receivable” and all “Related Security” (each as defined
therein) to NMC in accordance with the terms thereof.
(3) NMC has entered into that certain Amended and Restated Receivables Purchase Agreement
(as the same may from time to time be amended, restated, supplemented or otherwise modified, the
“Receivables Agreement”) dated as of even date herewith with NMC Funding, under which NMC has
agreed to sell and assign on each day hereafter all of its right, title and interest in and to each
“Receivable” and all “Related Security” (each as defined therein), including, without limitation,
all Receivables and Related Security acquired by NMC from the Transferring Affiliates under the
Transferring Affiliate Letter and from BMA under the BMA Transfer Agreement, to NMC Funding in
accordance with the terms thereof.
(4) NMC Funding has entered into that certain Fourth Amended and Restated Transfer and
Administration Agreement (as the same may from time to time be amended, restated, supplemented or
otherwise modified, the “TAA”) dated as of even date herewith with NMC Funding, as “Transferor”,
NMC, as the “Collection Agent” thereunder, certain “Bank Investors” from time to time party thereto
and the Agent, under which NMC Funding shall from time to time sell and assign undivided percentage
ownership interests in all “Receivables” and “Related Security” (each as defined therein),
including, without limitation, in all Receivables and
Related Security acquired by NMC Funding from NMC under the Receivables Agreement, to the
Agent for the benefit of the Investors in accordance with the terms thereof. For purposes of this
Agreement, the terms “Agent”, “Administrative Agent”, “Conduit Investor” and “Investor” shall have
the meanings assigned to such terms under the TAA.
(5) Certain Affiliates (each, a “Designated Account Agent”) of the Transferring Affiliates
have entered, or may hereafter enter, into that certain Account Agent Agreement dated as of August
28, 1997 or an agreement in substantially the form of such Account Agent Agreement (collectively,
and as the same may from time to time be amended, restated, supplemented or otherwise modified,
the “Account Agent Agreement”), under which such Designated Account Agents agree to certain matters
relating to the handling of Collections on Receivables originated by Transferring Affiliates and
remitted to “Special Accounts” maintained by such Designated Account Agents.
(6) FME KGaA owns all of the issued and outstanding common stock of FMCH, and FME KGaA or one
of its wholly-owned Subsidiaries owns, directly or indirectly, all of the issued and outstanding
shares of capital stock of each Transferring Affiliate, BMA, each Designated Account Agent and
NMC. It is a condition precedent to the effectiveness of each of the Receivables Agreement and the
TAA that each of FME KGaA and FMCH enters into this Agreement.
(7) NMC, the Transferring Affiliates (as such group is from time to time comprised), BMA
and the Designated Account Agents (as such group is from time to time comprised) are herein
sometimes referred to collectively as the “Parent Group Members” or any such Person individually as
a “Parent Group Member”. The Receivables Agreement, the Transferring Affiliate Letter, the BMA
Transfer Agreement, the Account Agent Agreement and each of the other instruments, documents and
agreements executed in connection therewith are herein sometimes referred to collectively
as the “Transaction Documents”. The terms “Receivable” and “Related Security”, and
other terms that are used herein and not otherwise defined herein, shall have the meanings assigned
under the Receivables Agreement.
(8) FMCH and FME KGaA are parties to that certain Parent Agreement dated as of August 28,
1997 (as amended prior to the date hereof, the “Existing
Parent Agreement”), which the parties
hereto desire to amend and restate in its entirety.
NOW, THEREFORE, the parties hereby agree as follows:
SECTION 1. Unconditional Undertaking. Each Company hereby unconditionally and
irrevocably undertakes and agrees with and for the benefit of NMC Funding, the Investors, the
Administrative Agents and the Agent to cause the due and punctual performance and observance by
each of the Parent Group Members with each of such Parent Group Member’s obligations under the
Transaction Documents, including, without limitation: (i) by NMC and its successors and assigns of
all of the terms, covenants, conditions, agreements and undertakings on the part of NMC (whether
as seller, collection agent or otherwise) to be performed or observed by it under the Receivables
Agreement or any other document delivered in connection with the Receivables Agreement, (ii) by
each Transferring Affiliate and its successors and assigns of all of the terms, covenants,
conditions, agreements and undertakings on
2
the part of such Transferring Affiliate to be performed and observed under the Transferring
Affiliate Letter, (iii) by BMA, and its successors and assigns of all of the terms, covenants,
conditions, agreements and undertakings on the part of BMA to be performed and observed under the
BMA Transfer Agreement, and (iv) by each Designated Account Agent and its successors and assigns
of all of the terms, covenants, conditions, agreements and undertakings on the part of such
Designated Account Agent to be performed under the Account Agent Agreement, in each case under
clauses (i), (ii), (iii) and (iv) above in accordance with the terms thereof, including, without
limitation, each indemnity and each other agreement of any Parent Group Member to pay or deposit
any money under any Transaction Document (all such terms, covenants, conditions, agreements and
undertakings on the part of the Parent Group Members to be performed or observed being,
collectively, the “Obligations”).
In the event that any Parent Group Member shall fail to perform or observe any of the
Obligations when the same shall be required to be performed or observed under any Transaction
Document, then each Company will itself (to the fullest extent permitted by law) duly and
punctually perform or observe, or cause to be duly and punctually performed or observed, such
Obligation, and it shall not be a condition to the accrual of the obligation of any Company
hereunder to perform or observe, or cause the performance or observance of, any Obligation that NMC
Funding, any Investor, any Administrative Agent or the Agent shall have first made any request of
or demand upon or given any notice to any Company or to any Parent Group Member or their respective
successors or assigns, or have instituted any action or proceeding against any Company or any
Parent Group Member or their respective successors or assigns in respect thereof; provided that no
Company shall be required to make any payment hereunder without ten days prior notice from NMC
Funding, an Investor or the Agent.
SECTION 2. Obligation Absolute. Each Company will perform its obligations under this
Agreement regardless of any law, rule, regulation or order now or hereafter in effect in any
jurisdiction affecting any of the terms of any Transaction Document, or the rights of NMC Funding,
any Investor, any Administrative Agent or the Agent with respect thereto. The obligations of each
Company under this Agreement are independent of the Obligations, and a separate action or actions
may be brought and prosecuted against any Company to enforce this Agreement, irrespective of
whether any action is brought against any Parent Group Member or whether any Parent Group Member
is joined in any such action or actions. The liability of each Company under this Agreement shall
be absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of any Transaction Document;
(ii) any change in the time, manner or place of payment of, or in any other term of,
all or any of the Obligations, or any other amendment or waiver of or any consent to
departure from the Transaction Documents;
(iii) any taking, exchange, release or non-perfection of any security interest, or any
taking, release or amendment or waiver of or consent to departure from any Related Security
or other agreement relating to all or any of the Obligations;
(iv) any manner of application by any Parent Group Member or any subsidiary or
affiliate thereof of any Collections to all or any of the Obligations, or any manner of
3
collection from or disposition of any Receivable or Related Security or any
interest therein;
(v) any change, restructuring or termination of the corporate structure or existence
of any Company or any Parent Group Member;
(vi) any failure of any Parent Group Member or any Company to obtain any
authorization or approval from or other action by, or to notify or file with, any
governmental authority or regulatory body required in connection with this Agreement, the
Receivables Agreement or any Transaction Document;
(vii) any impossibility or impracticality of performance, illegality, force majeure,
any act of any government, or any other circumstance which might constitute a defense
available to, or a discharge of any Parent Group Member or any Company;
(viii) with respect to any Company, the release by NMC Funding, any Investor, any
Administrative Agent or the Agent of the other Company from any or all of its obligations
hereunder, the unenforceability of this Agreement as against such other Company or the
release of any other guarantor in respect of its obligations; or
(ix) any other circumstance which might otherwise constitute a defense available to,
or a discharge of, any Parent Group Member or a guarantor.
This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time
any payment by any Parent Group Member under any Transaction Document is rescinded or must
otherwise be returned by NMC Funding, any Investor, any Administrative Agent or the Agent, upon
the insolvency, bankruptcy or reorganization of any Parent Group Member or otherwise, all as
though such payment had not been made. The obligations of each Company under this Agreement shall
not be subject to reduction, termination or other impairment by reason of any set-off, recoupment,
counterclaim or defense or for any other reason. The obligations of each Company under this
Agreement shall not be discharged except by performance as herein provided.
SECTION 3. Waiver. Each Company hereby waives promptness, diligence, notice of
acceptance and any other notice with respect to any of the Obligations and this Agreement or any
Transaction Document and any requirement that NMC Funding, any Investor, any Administrative Agent
or the Agent protect, secure, perfect or insure any security interest or lien or any property
subject thereto or exhaust any right or take any action against any Company or any Parent Group
Member or any security interest.
SECTION 4. Waiver of Subrogation and Contribution. Each Company hereby irrevocably
waives any claim or other rights that it may now or hereafter acquire against any Parent Group
Member that arise from the existence, payment, performance or enforcement of such Company’s
obligations under this Agreement, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to participate in any
claim or remedy of NMC Funding, any Investor, any Administrative Agent or the Agent against any
Parent Group Member or any security interest that NMC Funding, any Investor, any Administrative
Agent or the Agent hereafter acquires, whether or not such claim,
4
remedy or right arises in equity or under contract, statute or common law, including,
without limitation, the right to take or receive from any Parent Group Member, directly or
indirectly, in cash or other property or by set-off or in any other manner, payment or security in
account of such claim, remedy or right. If any amount shall be paid to any Company in violation of
the preceding sentence at any time prior to the later of (x) the payment in full of the Obligations
and all other amounts payable under this Agreement and (y) the payment in full of all “Aggregate
Unpaids” (as defined in the TAA), following the “Termination Date” (as defined in the TAA), such
amount shall be held in trust for the benefit of NMC Funding, each Investor, each Administrative
Agent and the Agent and shall forthwith be paid to the Agent to be credited and applied to the
Obligations and all other amounts payable under this Agreement, whether matured or unmatured, in
accordance with the terms of the TAA, the applicable Transaction Document and this Agreement, or to
be held by the Agent as collateral security for any Obligations or other amounts payable under this
Agreement thereafter arising. Each Company acknowledges that it will receive direct and indirect
benefits from the receivables purchase arrangements contemplated by the Transaction Documents and
that the waiver set forth in this Section 4 is knowingly made in contemplation of such benefits.
SECTION 5. Representations and Warranties. Each Company hereby represents and
warrants as follows:
(a) Such Company is, in the case of FMCH, a corporation duly incorporated and, in the
case of FME KGaA, an entity duly organized, in each case validly existing and in good
standing under the laws of the jurisdiction in which it is organized and existing, and is
duly qualified to do business and is in good standing in every jurisdiction where the nature
of its business requires it to be so qualified, except where the failure to be so qualified
would not have a Material Adverse Effect.
(b) The execution, delivery and performance by such Company of this Agreement
(i) are within such Company’s corporate powers, (ii) have been duly authorized by all
necessary corporate action, and (iii) do not contravene (A) such Company’s charter or
by-laws or similar organizational documents or (B) any law, rule or regulation applicable to
such Company, or any of its subsidiaries or properties, and (iv) do not contravene or
require any consent, approval or notice under any provision of any indenture, loan
agreement or credit agreement or any other agreement, lease or instrument to which
such Company or any of its subsidiaries is a party or by which such Company or any of its
subsidiaries or properties may be bound or affected, except for any such consents and
approvals that have been obtained and notices that have been given.
(c) No authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required for the due execution, delivery
and performance by such Company of this Agreement.
(d) This Agreement constitutes the legal, valid and binding obligation of such Company
enforceable against such Company in accordance with its terms, except as may be limited by
the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors’ rights generally and by general principles of equity.
5
(e) Except as set forth in Exhibit F to the Receivables Agreement, there is no
pending or threatened action or proceeding against or affecting such Company or its properties
before any court, governmental agency or arbitrator which would have a Material Adverse Effect.
(f) The consolidated balance sheet of FME KGaA and its subsidiaries as at December 31, 2007,
and the related consolidated statements of income and of cash flow of FME KGaA and its subsidiaries
for the fiscal year then ended, copies of which have been furnished to the Agent, fairly present
the consolidated financial condition of FME KGaA and its subsidiaries as at such date and the
results of the operations of FME KGaA and its subsidiaries for the period ended on such date, all
in accordance with generally accepted accounting principles consistently applied, and since
December 31, 2007, no event has occurred which would have a Material Adverse Effect.
(g) Each financial statement and financial book, record, or report or
information (collectively, “Financial Documents”) or other document, book, record or report or
information (collectively, “Other Documents”) furnished or to be furnished in writing at any time
by such Company to NMC Funding, any Investor or the Agent, in connection with this Agreement is or
will be (i) in the case of each such Financial Document, prepared in accordance with
generally accepted accounting principles consistently applied, except as stated therein and
subject in the case of any quarterly financial statement to year-end audit adjustments and to the
abbreviation of any such financial statement and incompleteness of the footnotes contained therein,
or (ii) in the case of such Other Documents, accurate in all material respects, in each case, as of
its date or (except as otherwise disclosed to NMC Funding, the Investors or the Agent, as the case
may be, at such time) as of the date so furnished, and no such Financial Document or Other
Document, to the best of such Company’s knowledge, contains or will contain any untrue statement of
a material fact or omits or will omit to state a material fact necessary in order to make the
statements contained therein, in the light of the circumstances under which they were made, not
misleading.
(h) All of the issued and outstanding common stock of (such stock being more than 80% of all
voting stock of) FMCH is and will continue to be owned directly or indirectly by FME KGaA.
(i) There are no conditions precedent to the effectiveness of this Agreement that have not
been satisfied or waived.
(j) No Termination Event or Potential Termination Event (each as defined in the TAA) has
occurred and is continuing.
(k) The execution, delivery and performance by each Parent Group Member of each Transaction
Document to which it is named as a party and the transactions contemplated thereby do not
contravene any provision of any indenture, loan agreement, credit agreement, or other agreement,
lease or instrument to which any Company is a party or by which such Company or its properties may
be bound or affected.
6
(1) Each representation and warranty from time to time made or deemed made by
any Parent Group Member under or in connection with any Transaction Document with respect to
such Company or any Parent Group Member shall be true and correct in all material respects.
SECTION 6. Covenants. (a) Each Company covenants and agrees that, as long as any
Aggregate Unpaids shall be outstanding under the TAA, it will, unless the Agent and each
Administrative Agent shall otherwise consent in writing:
(i) Compliance with Laws, Etc. Comply with the applicable laws, rules,
regulations and orders with respect to it, its business and properties other than such
provisions noncompliance with which would not have a Material Adverse Effect.
(ii) Preservation of Corporate Existence. Preserve and maintain its corporate
existence, rights, franchises and privileges in the jurisdiction of its incorporation, and
qualify and remain qualified in good standing as a foreign corporation in each jurisdiction
where the failure to preserve and maintain such existence, rights, franchises, privileges
and qualification would have a Material Adverse Effect.
(iii) Maintenance of Ownership. FME KGaA will maintain ownership, 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), of 100% of the common stock of, and more
than 80% of the outstanding voting stock of, FMCH and FMCH will maintain ownership,
directly or indirectly, of all of the outstanding shares of stock of each Parent Group
Member; provided that FME KGaA may own directly or indirectly stock that is not Voting
Stock in subsidiaries of FMCH.
(iv) Reporting Requirements. Furnish to the Agent and each Administrative
Agent:
(A) As soon as available, but in the event within 95 days after the end of each
fiscal year of such Company, audited consolidated balance sheets of such Company and
its Subsidiaries as of the end of such fiscal year and the related audited
consolidated statements of income, retained earnings, shareholders’ equity and cash
flows for such fiscal year, in each case audited by KPMG Peat Marwick LLP, KPMG
Deutsche Treuhand Gesellschaft or other firm of independent certified public
accountants of nationally recognized standing reasonably acceptable to the
Agent and each Administrative Agent, setting forth in each case in comparative form
the figures for the previous year, reported on without a “going concern” or like
qualification or exception, or qualification indicating that the scope of the audit
was inadequate to permit such independent certified public accountants to certify
such financial statements without such qualification;
(B) As soon as available and in any event within 50 days after the end of each
of the first three fiscal quarters of such Company, (1) in the case of FMCH, a
company-prepared consolidated balance sheet of such Company and its
7
Subsidiaries as of the end of such quarter and the related company-prepared
consolidated statements of income and retained earnings for such quarterly period and cash
flows for the fiscal year to date and (2) in the case of FME KGaA, company-prepared
consolidated balance sheet of FME KGaA and its Subsidiaries as of the end of the quarter
and the related company-prepared consolidated statements of income and retained earnings
for such quarterly period setting forth in each case in comparative form the figures for
the previous year for such period;
in each case setting forth in comparative form the consolidated (and consolidating, if
applicable) 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. All such financial statements shall be complete and correct in all
material respects (subject, in the case of interim statements, to normal recurring
year-end audit adjustments) and to be prepared in reasonable detail and, in the case of
the annual and quarterly financial statements provided in accordance with subsections (a)
and (b) above, in accordance with GAAP applied consistently throughout the periods
reflected therein (except as approved by such accountants and disclosed therein);
(C) Promptly upon the furnishing thereof to the shareholders of such Company, copies
of all financial statements, reports and proxy statements so furnished;
(D) Promptly upon the filing thereof, copies of all registration
statements and annual , quarterly, monthly or other regular reports which such Company or
any Subsidiary files with the Securities and Exchange Commission;
(E) Within five (5) Business Days after the date of any change in its public or
private debt ratings, if any, a written certification of its public and private debt
ratings after giving effect to such change; and
(F) such other information respecting the conditions or operations, financial or
otherwise, of such Company or any of its subsidiaries as the Agent or any Administrative
Agent may from time to time reasonably request.
(v) Financial Covenants. Ensure that:
(A) Consolidated Leverage Ratio. As of the end of each fiscal quarter, the
Consolidated Leverage Ratio will not exceed:
8
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Maximum |
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Consolidated |
Fiscal Quarters Ending |
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Leverage Ratio |
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December 31, 2007 and December 30, 2008 |
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4.00:1.00 |
December 31, 2008 and December 30, 2009 |
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3.50:1.00 |
December 31, 2009 and thereafter |
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3.00:1.00 |
(B) Consolidated Fixed Charge Coverage Ratio. As of the end of each fiscal
quarter, the Consolidated Fixed Charge Coverage Ratio will not be less than
1.20:1.00.
For purposes of this Section 6(a)(v), the terms “Consolidated Leverage Ratio,” and
“Consolidated Fixed Charge Coverage Ratio” shall have the meanings specified in the
FME KGaA Credit Facility (as defined in the TAA) as in effect on the initial
effective date thereof, but without giving effect to any amendment, waiver,
termination, renewal, refunding, replacement, refinancing or other modification to
the FME KGaA Credit Facility made after such effective date.”
(b) Each Company acknowledges that the Investors, the Administrative Agents and the Agent are
entering into the transactions contemplated by the TAA in reliance upon the identity of NMC
Funding as a separate legal entity from each Parent Group Member, the Companies and their other
subsidiaries and affiliates (collectively, excluding NMC Funding, the “Parent Group”). Each
Company shall, and shall cause the Parent Group to, refrain from taking any action that would
suggest to any creditor of any entity within the Parent Group that NMC Funding and such entity
within the Parent Group are anything other than separate legal entities. Neither Company shall
hold out any entity within the Parent Group to third parties as liable for the debts of NMC
Funding, and neither Company shall at any time represent to any Person that any entity within the
Parent Group owns any interest in the Receivables or any of the other assets intended to have been
acquired by NMC Funding under the Receivables Agreement.
SECTION 7. Amendments, Etc. No amendment or waiver of any provision of this Agreement,
and no consent to any departure by any Company herefrom, shall in any event be effective unless the
same shall be in writing and signed by NMC Funding, the Agent, each Administrative Agent and each
Company (or, in the case of waiver, by the party or parties waiving any such provision) and then
such amendment, waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
SECTION 8. Addresses for Notices. All notices and other communications provided for
hereunder shall be in writing (including telecopier, telegraphic or cable communication) and
mailed, telecopied, telegraphed, cabled or delivered to it, if to (i) FME KGaA, at its address at
Else-Xxxxxx-Xxxxxxx 0, 00000 Xxx Xxxxxxx x.x.X., Xxxxxxx, Attention: Xx. Xxxxxx Xxxxx, (ii) FMCH,
at its address at 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxxx 00000, Attention: Xxxx Xxxxxxx, (iii)
NMC Funding, at its address at 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 and (iv) if to the
Agent, at its address specified in the TAA or, as to any party, at such other address as shall be
designated by such party in a written notice to each
9
other party. All such notices and other communications shall, when mailed, telecopied,
telegraphed or cabled, be effective when deposited in the mails, telecopied, delivered to the
telegraph company or delivered to the cable company, respectively.
SECTION 9. No Waiver, Remedies. No failure on the part of NMC Funding, any Investor
or the Agent to exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other
or further exercise thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 10. Continuing Agreement; Assignments under Agreement. This Agreement is a
continuing agreement and shall (i) remain in full force an effect until the later of the
Termination Date under the TAA and the date on which no Aggregate Unpaids thereunder shall be
outstanding and no amount owed by NMC under the Receivables Agreement shall remain unpaid, (ii) be
binding upon each Company and its successors and assigns and (iii) inure to the benefit of, and be
enforceable by each of NMC Funding, each Investor and the Agent and their respective successors,
transferees and assigns. Without limiting the generality of the foregoing clause (iii), any
Investor, any Administrative Agent or the Agent may assign any of its rights under this Agreement
to any assignee, and such assignee shall thereupon become vested with all the benefits in respect
thereof granted to such Investor or the Agent, as applicable, herein or otherwise.
SECTION 11. Joint and Several Liability. The liabilities and obligations of the
Companies under this Agreement shall be joint and several.
SECTION 12. Taxes. (a) Any and all payments by any of the Companies hereunder shall
be made free and clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect thereto,
excluding taxes imposed on net income and all income and franchise taxes of the United
States and any political subdivisions thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholding and liabilities being hereinafter referred to as “Taxes”). If any
of the Companies shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder, (i) the sum payable shall be increased as may be necessary so that after making
all required deductions (including deductions applicable to additional sums payable under this
Section 12) NMC Funding, any affected Investor and the Agent receives an amount equal to the sum
it would have received had no such deductions been made, (ii) such Company shall make such
deductions and (iii) such Company shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, each Company agrees to pay any present or future stamp or documentary taxes
or any other excise or property taxes, charges or similar levies which arise from any payment made
hereunder or from the execution, delivery or registration of, or otherwise with respect to, this
Agreement (hereinafter referred to as “Other Taxes”).
(c) Each Company will indemnify NMC Funding, any affected Investor, any affected
Administrative Agent and the Agent, for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction or amounts
10
payable under this Section 12) paid by NMC Funding, any affected Investor, any affected
Administrative Agent and the Agent or any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto.
SECTION 13. Judgment. (a) If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder in lawful money of the United States (“Dollars”) into
another currency, the parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal banking procedures
that the Agent would purchase Dollars with such other currency in New York, New York on the
Business Day preceding that on which final judgment is given.
(b) The obligation of each Company in respect of any sum due from it to NMC Funding, any Investor, any Administrative Agent or the Agent hereunder
shall, notwithstanding any judgment in a currency other than Dollars, be discharged only to the
extent that on the Business Day following receipt by NMC Funding, such Investor, such Administrative Agent or the Agent, as applicable, of any sum adjudged to be so due in such other currency
such Person may in accordance with normal banking procedures purchase Dollars with such other
currency; if the Dollars so purchased are less than the sum originally due to such Person in
Dollars, such Company agrees, as a separate obligation and notwithstanding any such judgment,
to indemnify such Person against such loss, and if the Dollars so purchased exceed the sum
originally due to such Person in Dollars, such Person agrees to remit to such Company such
excess.
(c) To the extent that any Company has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise)
with respect it or its property, such Company hereby irrevocably waives such immunity in
respect of its obligations under this Agreement and, without limiting the generality of the
foregoing, each Company agrees that the waivers set forth in this Agreement shall have the fullest scope permitted under the Foreign Sovereign Immunities Act of 1976 of the United
States and are intended to be irrevocable for purposes of such Act.
SECTION 14. Consent to Jurisdiction. (a) Each Company hereby irrevocably submits to
the jurisdiction of any New York State or Federal court sitting in New York City and any appellate
court from any thereof in any action or proceeding arising out of or relating to this Agreement,
and each Company hereby irrevocably agrees that all claims in respect of such action or proceeding
may be heard and determined in such New York State court or in such Federal court. Each Company
hereby irrevocably waives, to the fullest extent it may effectively do so, the defense of an
inconvenient forum to the maintenance of such action or proceeding. Each Company hereby
irrevocably appoints Arent Fox LLP, located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
“Process Agent”), as its agent to receive on behalf of such Company and its property service of
copies of the summons and compliant and any other process which may be served in any such action
or proceeding. Such service may be made by mailing or delivering a copy of such process to each
Company in care of the Process Agent at the Process Agent’s above address, and each Company hereby
irrevocably authorizes and directs the Process Agent to accept such service on its behalf. As an
alternative method of service, each Company also irrevocably consents to the services of any and
all process in any such action or proceeding
11
by the mailing of copies of such process to such Company at its address specified in Section 8.
Each Company agrees that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by
law, to the extent permitted by law.
(b) Nothing in this Section 14 shall affect the right of NMC Funding, any Investor or the
Agent, to serve legal process in any other manner permitted by law or affect the right of NMC
Funding, any Investor or the Agent, to bring any action or proceeding against any Company or its
property in the courts of other jurisdictions.
SECTION 15. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
SECTION 16. Covenant not to Institute Bankruptcy Proceedings. Each Company agrees
that, so long as any commercial paper notes or other indebtedness issued by a Conduit Investor
shall be outstanding or there shall not have elapsed one year plus one day since the last day on
which any such commercial paper shall have been outstanding, it will not institute against a
Conduit Investor any proceeding seeking to adjudicate a Conduit Investor a bankrupt or insolvent,
or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief,
or composition of a Conduit Investor 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 for any substantial part
of its property.
SECTION 17. Execution in 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.
SECTION 18. Amendment and Restatement. This Agreement amends and restates the
Existing Parent Agreement in its entirety. This Agreement is not intended to constitute a novation
of the Existing Parent Agreement. Upon the effectiveness of this Agreement (the “Effective Date”),
each reference to the Existing Parent Agreement in any other document, instrument or agreement
executed and/or delivered in connection therewith shall mean and be a reference to this Agreement.
[Remainder of Page Intentionally Left Blank]
12
IN WITNESS WHEREOF, each Company has caused this Agreement to be duly executed and delivered
by its officer thereunto duly authorized as of the date first above written.
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FRESENIUS MEDICAL CARE AG & Co. KGaA
By Fresenius Medical Care
Management AG (General Partner)
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By: |
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Name: |
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Title: |
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FRESENIUS MEDICAL CARE
HOLDINGS, INC.
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By: |
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Name: |
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Title: |
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Accepted and Agreed as of
the date first above written:
NMC FUNDING CORPORATION
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By: |
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Name:
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Title: |
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WESTLB AG, NEW YORK BRANCH, |
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as Agent |
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By: |
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Name:
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Title: |
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By: |
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Name:
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Title: |
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Signature Page to the Amended and Restated
Parent Agreement dated as of October 16, 2008
EXHIBIT Q
to
FOURTH AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
LIST OF TRANSFERRING AFFILIATES
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Chief Executive Office for each
Transferring Affiliate:
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000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000-0000 |
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Original Transferring Affiliates |
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State of Incorporation |
(before October 19, 2006) |
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Bio-Medical Applications Home Dialysis Services, Inc.
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Delaware |
Bio-Medical Applications Management Company, Inc
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Delaware |
Bio-Medical Applications of Alabama, Inc.
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Delaware |
Bio-Medical Applications of Anacostia, Inc.
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Delaware |
Bio-Medical Applications of Aquadilla, Inc.
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Delaware |
Bio-Medical Applications of Arecibo, Inc.
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Delaware |
Bio-Medical Applications of Arkansas, Inc.
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Delaware |
Bio-Medical Applications of Bayamon, Inc.
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Delaware |
Bio-Medical Applications of Blue Springs, Inc
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Delaware |
Bio-Medical Applications of Caguas, Inc.
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Delaware |
Bio-Medical Applications of California, Inc.
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Delaware |
Bio-Medical Applications of Camarillo, Inc.
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Delaware |
Bio-Medical Applications of Capitol Hill, Inc.
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Delaware |
Bio-Medical Applications of Carolina, Inc.
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Delaware |
Bio-Medical Applications of Xxxxxx, Inc.
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Delaware |
Bio-Medical Applications of Clinton, Inc.
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Delaware |
Bio-Medical Applications of Columbia Heights, Inc.
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Delaware |
Bio-Medical Applications of Connecticut, Inc.
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Delaware |
Bio-Medical Applications of Delaware, Inc.
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Delaware |
Bio-Medical Applications of Dover, Inc.
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Delaware |
Bio-Medical Applications of Eureka, Inc.
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Delaware |
Bio-Medical Applications of Fayetteville, Inc.
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Delaware |
Bio-Medical Applications of Florida, Inc.
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Delaware |
Bio-Medical Applications of Fremont, Inc.
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Delaware |
Bio-Medical Applications of Fresno, Inc.
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Delaware |
Bio-Medical Applications of Georgia, Inc.
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Delaware |
Bio-Medical Applications of Glendora, Inc.
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Delaware |
Bio-Medical Applications of Guayama, Inc.
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Delaware |
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Original Transferring Affiliates |
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State of Incorporation |
(before October 19, 2006) |
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Bio-Medical Applications of Hoboken, Inc.
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Delaware |
Bio-Medical Applications of Humacao, Inc.
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Delaware |
Bio-Medical Applications of Illinois, Inc.
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Delaware |
Bio-Medical Applications of Indiana, Inc.
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Delaware |
Bio-Medical Applications of Kansas, Inc.
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Delaware |
Bio-Medical Applications of Kentucky, Inc.
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Delaware |
Bio-Medical Applications of Las Americas, Inc.
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Delaware |
Bio-Medical Applications of Long Beach, Inc.
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Delaware |
Bio-Medical Applications of Los Gatos, Inc.
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Delaware |
Bio-Medical Applications of Louisiana, LLC
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Delaware |
Bio-Medical Applications of Maine, Inc.
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Delaware |
Bio-Medical Applications of Manchester, Inc.
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Delaware |
Bio-Medical Applications of Maryland, Inc.
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Delaware |
Bio-Medical Applications of Massachusetts, Inc.
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Delaware |
Bio-Medical Applications of Mayaguez, Inc.
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Delaware |
Bio-Medical Applications of Michigan, Inc.
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Delaware |
Bio-Medical Applications of Minnesota, Inc.
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Delaware |
Bio-Medical Applications of Mission Hills, Inc.
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Delaware |
Bio-Medical Applications of Mississippi, Inc.
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Delaware |
Bio-Medical Applications of Missouri, Inc.
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Delaware |
Bio-Medical Applications of MLK, Inc.
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Delaware |
Bio-Medical Applications of Nevada, Inc
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Nevada |
Bio-Medical Applications of New Hampshire, Inc.
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Delaware |
Bio-Medical Applications of New Jersey, Inc.
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Delaware |
Bio-Medical Applications of New Mexico, Inc.
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Delaware |
Bio-Medical Applications of North Carolina, Inc.
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Delaware |
Bio-Medical Applications of Northeast, D.C., Inc.
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Delaware |
Bio-Medical Applications of Oakland, Inc.
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Delaware |
Bio-Medical Applications of Ohio, Inc.
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Delaware |
Bio-Medical Applications of Oklahoma, Inc.
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Delaware |
Bio-Medical Applications of Pennsylvania, Inc.
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Delaware |
Bio-Medical Applications of Ponce, Inc.
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Delaware |
Bio-Medical Applications of Puerto Rico, Inc.
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Delaware |
Bio-Medical Applications of Rhode Island, Inc.
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Delaware |
Bio-Medical Applications of Rio Piedras, Inc.
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Delaware |
Bio-Medical Applications of San Antonio, Inc.
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Delaware |
Bio-Medical Applications of San German, Inc.
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Delaware |
Bio-Medical Applications of San Xxxx, Inc.
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Delaware |
Bio-Medical Applications of South Carolina, Inc.
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Delaware |
Bio-Medical Applications of Southeast Washington, Inc.
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Delaware |
Bio-Medical Applications of Tennessee, Inc.
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Delaware |
Bio-Medical Applications of Texas, Inc.
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Delaware |
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Original Transferring Affiliates |
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State of Incorporation |
(before October 19, 2006) |
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Bio-Medical Applications of The District of Columbia, Inc.
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Delaware |
Bio-Medical Applications of Ukiah, Inc.
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Delaware |
Bio-Medical Applications of Virginia, Inc.
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Delaware |
Bio-Medical Applications of West Virginia, Inc.
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Delaware |
Bio-Medical Applications of Wisconsin, Inc.
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Delaware |
Bio-Medical Applications of Woonsocket, Inc.
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Delaware |
Dialysis America Alabama, LLC
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Delaware |
Dialysis America Georgia, LLC
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Delaware |
Dialysis Associates of Northern New Jersey, L.L.C.
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New Jersey |
Everest Healthcare Holdings, Inc.
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Delaware |
Everest Healthcare Indiana, Inc.
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Indiana |
Everest Healthcare Rhode Island, Inc.
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Delaware |
Everest Healthcare Texas Holding Corp
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Delaware |
Everest Healthcare Texas, LP
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Delaware |
Everest Management, Inc.
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Delaware |
Fresenius Medical Care Dialysis Services Colorado LLC
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Delaware |
Fresenius Medical Care Dialysis Services-Oregon, LLC
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Oregon |
FMS New York, Inc.
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Delaware |
Fresenius Management Services, Inc.
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Delaware |
Fresenius USA Home Dialysis, Inc.
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Delaware |
Fresenius USA Marketing, Inc.
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Delaware |
Fresenius USA, Inc.
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Massachusetts |
Gulf Region Mobile Dialysis, Inc.
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Delaware |
Home Dialysis of America, Inc.
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Arizona |
Home Dialysis of Muhlenberg County, Inc.
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Kentucky |
Home Intensive Care, Inc.
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Delaware |
Mercy Dialysis Center, Inc.
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Wisconsin |
National Medical Care, Inc.
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Delaware |
Neomedica, Inc
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Delaware |
North Xxxxxxx Dialysis Center, Inc.
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Delaware |
Northern New Jersey Dialysis, L.L.C.
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Delaware |
Qualicenters, Inc.
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Colorado |
San Diego Dialysis Services, Inc.
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Delaware |
Spectra East, Inc.
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Delaware |
Spectra Laboratories, Inc.
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Nevada |
Xxxxxxx Dialysis Center, L.L.C.
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Delaware |
Conejo Valley Dialysis, Inc.
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California |
Dialysis Services of Cincinnati, Inc.
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Ohio |
Dialysis Services, Inc.
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Texas |
Dialysis Specialists of Topeka, Inc.
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Kansas |
Dialysis Specialists of Tulsa, Inc.
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Oklahoma |
Everest Healthcare Ohio, Inc.
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Ohio |
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Original Transferring Affiliates |
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State of Incorporation |
(before October 19, 2006) |
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Fresenius USA Sales, Inc.
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Massachusetts |
Haemo-Stat, Inc.
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California |
Santa Xxxxxxx Community Dialysis Center, Inc.
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California |
Con-Med Supply Company, Inc.
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Illinois |
WSKC Dialysis Services, Inc.
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Illinois |
Du Page Dialysis, Ltd.
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Illinois |
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Additional Transferring Affiliates |
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State of Incorporation |
(added October 19, 2006) |
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Angleton Dialysis, Inc.
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Texas |
Arizona Renal Investments, LLC
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Delaware |
Brazoria Kidney Center, Inc.
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Texas |
Brevard County Dialysis, LLC
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Florida |
Cartersville Dialysis Center, LLC
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Xxxxxxx |
Xxxxxxx County Dialysis, LLC
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Xxxxxxx |
Xxxxxxxx Dialysis Center, LLC
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Xxxxxxx |
Xxxx County Dialysis, LLC
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Xxxxxxx |
Xxxxxxxx Area Renal Alliance, LLC
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Delaware |
Covington Dialysis Center, LLC
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Georgia |
Diabetes Care Group, Inc.
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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 |
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 |
|
|
|
Additional Transferring Affiliates |
|
State of Incorporation |
(added October 19, 2006) |
|
|
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, X.X.X.
|
|
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 |
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 |
|
|
|
Additional Transferring Affiliates |
|
State of Incorporation |
(added October 19, 2006) |
|
|
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 |
|
|
|
Additional Transferring Affiliates |
|
State of Incorporation |
(added October 19, 2006) |
|
|
Renex Dialysis Clinic of Woodbury, Inc.
|
|
New Jersey |
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 |
EXHIBIT R
to
FOURTH AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
FORM OF ACCOUNT AGENT AGREEMENT
ACCOUNT AGENT AGREEMENT
ACCOUNT AGENT AGREEMENT (this “Agreement”), dated as of August 28, 1997, made by each of the
parties identified on the signature pages hereto as being a “Titleholder”, for the benefit of NMC
Funding Corporation, a Delaware corporation (“NMC Funding”) and NationsBank, N.A., as agent (the
“Agent” ) for certain “Investors” (as defined below).
PRELIMINARY STATEMENTS:
(1) National Medical Care, Inc., a Delaware
corporation (“NMC”) has entered into that certain Transferring Affiliate Letter (as the same
may from time to time be amended, restated, supplemented or otherwise modified, the
“Transferring Affiliate Letter”) dated as of even date herewith with each of the “Transferring
Affiliates” named therein, under which each Such Transferring Affiliate has agreed to sell
and assign on each day hereafter all of its right, title and interest in and to each
“Receivable” and all “Related Security” (each as defined therein) to NMC in accordance with
the terms thereof.
(2) NMC has entered into that certain Receivables Purchase Agreement (as the same may from time to time be amended, restated, supplemented or
otherwise modified, the “BMA Transfer Agreement”) dated as of even date herewith with
Bio-Medical Applications Management Company, Inc., a Delaware corporation (“BMA”), under which
BMA has agreed to sell and assign on the date hereof all of its right, title and interest in and
to each “Receivable” and all “Related Security”
(each as defined therein) to NMC in accordance with
the terms thereof.
(3) NMC has entered into that certain Receivables Purchase Agreement (as the same may from
time to time be amended, restated, supplemented or otherwise modified, the “Receivables
Agreement”) dated as of even date herewith with NMC Funding, under which NMC has agreed to sell
and assign on each day hereafter all of its right, title and interest in and to each
“Receivable” and all “Related Security” (each as defined therein), including, without
limitation, all Receivables and Related Security acquired by NMC from the Transferring
Affiliates under the Transferring Affiliate Letter and from BMA under the BMA Transfer Agreement, to NMC Funding in accordance with the terms thereof.
(4) NMC Funding has entered into that certain Transfer and Administration Agreement (as the
same may from time to time be amended, restated, supplemented or otherwise modified, the “TAA”)
dated as of even date herewith with Enterprise Funding Corporation (“Enterprise”), NMC, as the
“Collection Agent” thereunder, certain “Bank Investors” from time to time party thereto (together
with Enterprise, the “Investors”) and the Agent, under which NMC Funding shall from time to time
sell and assign undivided percentage ownership interests in all “Receivables” and “Related
Security” (each as defined therein), including, without limitation, in all Receivables and Related
Security acquired by NMC Funding from NMC under the Receivables Agreement, to the Agent for the
benefit of the Investors in accordance with the terms thereof. Terms used herein and not otherwise
defined herein shall have the meanings assigned under the TAA.
(5) Each Titleholder maintains, for the benefit of certain of the Transferring
Affiliates, one or more deposit accounts (each, a “Remittance Account”) to which Obligors on
Receivables that have been originated by such Transferring Affiliate have been directed to
remit payment on such Receivables.
(6) NMC
Funding, as a condition to its entering into the Receivables
Agreement, and the
Investors and the Agent, as a condition to their entering into the TAA, have required that the
Titleholders enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration (the sufficiency and receipt of which are acknowledged), each Titleholder
agrees as follows:
SECTION 1. Representations and Warranties. Each Titleholder represents and
warrants that:
(a) Such Titleholder maintains one or more Remittance Accounts for the benefit of one
or more Transferring Affiliates. In each case, such Titleholder is acting exclusively in its
capacity as agent for such Transferring Affiliate in the establishment and maintenance of
each Remittance Account, and acts exclusively at the direction of such Transferring
Affiliate in respect of the handling and disposition of all monies, checks, instruments,
collections, remittances or other payment items received in the Remittance Accounts (the
“Payment Items”). Each Remittance Account exists solely for the administrative convenience
of the applicable Transferring Affiliate.
2
(b) Such Titleholder does not hold or claim any lien, security interest,
charge or encumbrance, or other right or claim in, of or on (i) any Receivables originated by any Transferring Affiliate, (ii)
any Payment Items in respect of any such Receivables or (iii) any Related Security
with respect to any of the foregoing
(collectively, the “Affected Assets”). To the extent that the Titleholder at any time
comes into possession, whether by reason of a remittance to a Remittance Account or
otherwise, of any Affected Assets, such Titleholder holds such
Affected Assets
in trust for the benefit of the applicable
Transferring Affiliate.
(c) Such Titleholder satisfies, upon execution and delivery of this Agreement, the
requirements set forth in the Receivables Agreement and the TAA for being a
“Designated Account Agent” for purposes of those agreements.
(d)
Such Titleholder 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. Such Titleholder 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.
(e) The maintenance of each Remittance Account for the benefit of the applicable Transferring
Affiliates, and the execution, delivery and performance by such Titleholder of this Agreement, are
within such Titleholder’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 By-laws of such Titleholder or
of any agreement, judgment, injunction, order, writ, decree or other instrument binding upon such
Titleholder.
(f) This Agreement constitutes the legal, valid and binding obligation of such
Titleholder enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, moratorium or other similar laws affecting the
rights of creditors generally.
3
(g) Each Remittance Account meets the requirements for being a Special Account
under the terms of each of the Receivables Agreement and the TAA, and a Special
Account Letter is in effect with respect thereto. The names and addresses of each
Remittance Account, together with the account numbers thereof and the Special Account
Banks with respect thereto, are specified in Exhibit C to the Receivables Agreement
(as the same may be amended from time to time in accordance with the terms of the
Receivables Agreement). Neither such Titleholder nor, to the best of such
Titleholder’s knowledge, any Transferring Affiliate has granted to any Person dominion
and control over any Remittance Account or the right to take dominion and control
over any Remittance Account at a future time or upon the occurrence of a future event
and each Remittance Account is otherwise free and clear of any Adverse Claim.
On each day that a “Purchase” is made under the Receivables Agreement, each Titleholder shall
be deemed to have certified that all representations and warranties described in this Section
1 are correct on and as of such day as though made on and as of such day.
SECTION 2. Acknowledgment of Interest. Each Titleholder acknowledges (i) that it has received a copy of each of the Transferring
Affiliate Letter, the Receivables Agreement and the TAA, (ii) the ownership and related
interests transferred to each of NMC, NMC Funding and the Agent, for the benefit of the
Investors, thereunder and (iii) that for purposes of Uniform
Commercial Code Section 9-305, it has received adequate notice of each of such interests.
SECTION 3. Covenants. At all times from the date hereof to the Collection
Date, unless each of NMC Funding and the Agent shall otherwise consent in writing, each
Titleholder agrees that:
(a) Such Titleholder shall take all action, or omit to take all action, required
to be taken (or to be omitted) by each Transferring Affiliate as it may relate to the
Remittance Accounts under the Transferring Affiliate Letter, the Receivables
Agreement, or the TAA, including, without limitation any such action that relates to
any covenant or undertaking on the part of such Transferring Affiliate or any of its
assigns in respect of “Special Accounts,” the “Concentration Account” or any
“Designated Account Agent” thereunder.
4
(b)
Such Titleholder will furnish to each of NMC Funding and the Agent from time to time such
information with respect to the activity in the Remittance Accounts as NMC Funding or the Agent may
reasonably request, and will at any time and from time to time during regular business hours permit
NMC Funding and the Agent, or any of their respective agents or representatives, (i) to examine and
make copies of and take abstracts from records of such Titleholder in respect of the Remittance
Accounts and (ii) to visit the offices and properties of such Titleholder for the purpose of
examining such records.
(c) Such Titleholder will not 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
against) or with respect to any of the Affected Assets or any of the Remittance Accounts. The
Payment Items mailed to, and funds deposited to or otherwise available in, the Remittance Accounts
will not be subject to deduction, set-off, banker’s lien, or any other right in favor of such
Titleholder, all of which such Titleholder hereby waives. To the extent there are any amounts due
to any Titleholder in respect of its fees and expenses for the maintenance and operation of any of
the Remittance Accounts, or in respect of any other claim such Titleholder may from time to time
hold against any Transferring Affiliate or any affiliate thereof, such claims shall be settled
separately as between such Titleholder and such Transferring Affiliate (or other affiliate), by
disbursement from the general operating funds of the applicable Transferring Affiliate (or other
affiliate), by disbursement from the general operating funds of the applicable Transferring
Affiliate (or other affiliate) and not by way of set-off against, or otherwise from, funds at any
time available in the Remittance Accounts.
SECTION 4. Miscellaneous.
(a) This Agreement may not be terminated at any time by or as to any Titleholder except in
accordance with the terms of the Receivables Agreement.
(b) Neither this Agreement nor any provision hereof may be changed, amended, modified or waived
orally but only by an instrument in writing signed by NMC Funding and the Agent.
(c)
No Titleholder may assign or transfer any of its rights or obligations hereunder without the
prior written consent of NMC Funding and the Agent. Subject to the
5
preceding sentence, this Agreement shall be binding upon each of the parties hereto and their
respective successors and assigns, and shall inure to the benefit of, and be enforceable by, NMC
Funding, the Agent, each of the Titleholders and their respective successors and assigns.
[Remainder of page intentionally left blank]
6
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be duly executed
and delivered by its officer thereunto duly authorized as of the date first above
written.
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Titleholders: |
BIO-MEDICAL APPLICATIONS MANAGEMENT
COMPANY, INC.
|
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By |
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Title: |
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HOME NUTRITIONAL SERVICES, INC.
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By |
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Title: |
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Accepted and agreed as of
the date first above written:
NMC FUNDING CORPORATION
|
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By |
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Title:
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NATIONSBANK, N.A., as Agent |
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By |
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Title:
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Signature Page to Account Agent Agreement
Dated as of August 28, 1997
7
EXHIBIT S
to
FOURTH AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
LIST OF CLOSING DOCUMENTS
FOURTH AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
Dated as of October 16, 2008
NMC FUNDING CORPORATION,
as Transferor
List of Closing Documents
|
1. |
|
Amendment Agreement. |
|
|
2. |
|
Fourth Amended and Restated Transfer and Administration Agreement. |
|
|
3. |
|
Amended and Restated Parent Agreement, relating to changes in financial
covenants and transfer of rights of Agent to WestLB. |
|
|
4. |
|
Amended and Restated Receivables Purchase Agreement. |
|
|
5. |
|
Amended and Restated Transferring Affiliate Letter. |
|
|
6. |
|
Opinion of Xxxxxxx X. Xxxx. |
|
|
7. |
|
Opinion of Arent Fox Xxxxxxx Xxxxxxx & Xxxx relating to corporate, UCC and
other matters. |
|
|
8. |
|
True sale and non-consolidation opinion of Arent Fox Xxxxxxx Xxxxxxx & Xxxx. |
|
|
9. |
|
Opinion of German counsel. |
|
|
10. |
|
Certificate of the Secretary of the Transferor. |
|
|
11. |
|
Certificate of the Secretary of the Collection Agent. |
|
|
12. |
|
Certificate of the Secretary of each Transferring Affiliate. |
|
|
13. |
|
Good Standing Certificates for the Transferor from the Secretary of the
Commonwealth of Massachusetts and the Secretary of State of Delaware. |
|
|
14. |
|
Good Standing Certificates for the Collection Agent from the Secretary of the
Commonwealth of Massachusetts and the Secretary of State of Delaware. |
|
|
15. |
|
Good Standing Certificates for each Transferring Affiliate from the Secretary of
the Commonwealth of Massachusetts and the Secretary of State of Delaware. |
(FRESENIUS)
|
16. |
|
Fourth Amended and Restated Investor Fee Letter. |
|
|
17. |
|
Amended and Restated Agent Fee Letter. |
|
|
18. |
|
Amendment to Liquidity Asset Purchase Agreement for Liberty Street Funding
LLC. |
|
|
19. |
|
Amended and Restated Liquidity Asset Purchase Agreement for Paradigm
Funding LLC. |
|
|
20. |
|
Third Amended and Restated Fee Letter (Helaba) relating to Paradigm LAPA. |
|
|
21. |
|
Amended and Restated Fee Letter (WestLB) relating to Paradigm LAPA. |
|
|
22. |
|
Bank of America Account Control Agreements. |
|
|
23. |
|
UCC summary. |
2
EXHIBIT T
To
FOURTH AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
Agreed Upon Procedures
Procedures performed and findings are presented as follows. For purposes of reporting our
findings, in those instances in which one or both the compared amounts were rounded to the same
degree, we have nevertheless stated that we found the compared amounts to be in agreement. Minor
or insignificant differences, as determined by management of the company (“management), between
source or testing data and the Investor Report are not discussed herein and are noted as such in
the body of the report, as indicated by the tickmark “P”. All testing is performed on the monthly
Investor Report for the period ending January 2008.
1A. For Dialysis Products Division (DPD) and Fresenius Medical Services (FMS), obtain the January
2008 Monthly Investor Reports (IR) from management and compare gross receivables (line item 1), all
components of the Net Receivables Balance calculation (line items
6-19b), Self-Pay Receivables
(line items 26-31) and all components of the Monthly Activity calculation (line items 32-37) to the
general ledger (GL) and aged trial balance (ATB). Obtain and document management’s reconciliation
of differences in the Agreed Upon Procedures Report (the “Report”).
1B. For FMS, obtain from management a list of void & rebills issued in January 2008, select 60 and
complete the following:
Ø |
|
Document management’s explanation of credit memos and void & rebills. |
|
Ø |
|
Obtain from management a list of each obligor, amount and reason for the issuance of the
void & rebill. Document management’s response in the Report in table format. |
|
Ø |
|
Calculate and document in the Report the average dilution horizon for each void & rebill
selected above. The dilution horizon is defined as the period from the average of the original and ending claim
dates to the void & rebill date for those claims. |
1B. For DPD obtain from management a list of 20 credit memos issued in January 2008 and complete
the following:
Ø |
|
Obtain from management a list of each obligor, amount and reason for the issuance of the
credit memo. Document management’s response in the Report in table format. |
|
Ø |
|
Calculate and document in the Report the weighted average dilution horizon for each credit
memo selected above. The dilution horizon is defined as the period from original invoice date to the issuance
of a credit memo against that invoice. For credits issued for future purchases the dilution horizon is
zero. For cash rebates, where the A/R is not discounted and is paid in full, the dilution horizon is zero. |
2A. Obtain from management the agings as represented in the selected Monthly Reports and compare
amounts to the Company’s ATB and to the GL (DPD and FMS). For each of the divisions, illustrate in
the Report the amount as shown in the aged trial balance, the GL and the selected IR. Obtain and
document management’s reconciliation of differences.
1
2B. For DPD and FMS inquire of management the definition of the receivable aging policy utilized
(i.e. invoice date or due date). Document management’s representation in the Report.
2C. For FMS, select 60 claims from the January 31, 2008 aging and determine if the claims were aged
properly in accordance with the Company’s aging policy. Note in the report any invoices/claims that
may not be aged in accordance with the aging policy in Procedure 2B.
2C. For DPD, from the 20 invoices/claims selected in January 2008 in Procedure 2D, determine if
the invoices were aged properly in January in accordance with the Company’s aging policy. Note in
the Report any invoices/claims that may not be aged in accordance with the aging policy in 2B.
2D. For FMS, for January 2008, select 60 claims from 8 predetermined commercial checks received
into a lockbox account. Additionally, from 3 predetermined Medicare payments received into a
lockbox account, select a total of 60 claims. Trace all selected claims to the medical manager/QMS
system to determine if the cash received was applied to the appropriate claim.
2D. For DPD, obtain from management 20 cash receipts for DPD from the January 2008 monthly cash
collections report to determine if cash was applied to the correct invoices/claims.
3A. For DPD and FMS, obtain from management a list of payment terms. Document the list of payment
terms received from management.
3B. For DPD and FMS, inquire of management as to whether the Company extends/alters maturity of
receivables? If so, under which circumstances? Inquire as to how do the systems/reporting track
these payment term extensions (i.e., is the due date extended in the system)? Document
management’s response.
4A. For DPD and FMS, compare the monthly write-off amounts as represented in the January 2008 IR
to the monthly activity in the January 2008 roll forward of the allowance for doubtful accounts.
Document management’s explanation for any differences greater than $100,000.
4B. For DPD and FMS, obtain from management a listing of the 20 largest DPD accounts that were
written-off in January 2008 and 60 written-off claims from FMS. Request of management the reason
for the write-off and note the response.
4C. For DPD and FMS, inquire of management and note the response of the following:
|
Ø |
|
What is the methodology for reserving expected bad debts? |
|
|
Ø |
|
Has the Company reserved for any non-delinquent or non-defaulted accounts? |
|
|
Ø |
|
Is there a separate account in which delinquent accounts are placed prior to eventual charge-off
whereby the amounts are not reflected on the aging? |
4D. For DPD and FMS, of the charge offs listed in Procedure 4B, inquire of management as to if any
of the accounts were converted to Notes Receivable and if so at what point in the aging where they
converted?
2
5. For DPD and FMS, obtain a list of the primary obligors as listed in the IR as of January
2008 and compare this information by tracing amounts to ATB. Obtain and document management’s
reconciliation of differences.
6A. For DPD and FMS, obtain from management a listing of the lockbox number and name of the
depository banks in which collections are deposited. Compare the list of bank accounts to the
Accepted Exhibit C, an updated schedule for the TAA.
6B. For DPD and FMS obtain from management an understanding of the collection process for payments
not going directly through the accounts from 6A. Inquire as to whether any payments are received
via ACH or wire transfer? If so, obtain from management a listing of bank accounts.
6C. For DPD and FMS, examine a January 2008 bank statement to GL reconciliation for one
depository account for each division, noting the timeliness of completion and amount of
unreconciled differences. Document the quantity of all reconciling items greater than $100,000.
Document management’s explanation for all reconciling items greater than $250,000.
6D. For DPD and FMS obtain from management a schedule for January 2008 summarizing collections
within the bank statement from Procedure 6C by method of receipt, in a format similar to the one
shown below.
|
|
|
|
|
|
|
|
|
Method of Receipt ($000s) |
|
January 2008 |
|
% |
Obligor mailed/sent payment directly to a Special Lock-Box
Account (via check, ACH, or Wire Transfer) |
|
$ |
|
|
|
|
|
|
Obligor sent payment to Company’s office |
|
|
|
|
|
|
|
|
Other (describe) |
|
|
|
|
|
|
|
|
TOTAL COLLECTIONS DEPOSITED per Bank
Statement(s) |
|
$ |
|
|
|
|
100 |
% |
Reconciling items |
|
|
|
|
|
|
|
|
6E. For DPD and FMS, compare the accuracy of this schedule by tracing this information to the bank
statements, accounting records, and the January 2008 report.
6F. For DPD and FMS, inquire of management as to if more than 5% of the collections were not
remitted by the obligors directly to one of the Special Accounts. If yes, (i.e. > 5%) select a
sample of 5 of these cash receipts and inquire as to whether these collections were deposited into
the Concentration Account within 48 hours.
7. KPMG will provide a no material weakness letter for FMCH for the period
ending XXX.
See Appendix for the no material weakness letter.
8. Obtain from the Company the name of independent director and their contact information as well
as the name of the independent director’s employer or, if retired, the name of their most recent employer.
9. Please note any changes made to the Company’s credit and collection policy since 12/31/2006
through the date of this Report.
3
EXHIBIT U
To
FOURTH AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT EXHIBIT H
To the Shareholders
Fresenius Medical Care Holdings, Inc.:
Waltham, MA
May 6, 2008
Ladies and Gentlemen:
We have audited the financial statements of Fresenius Medical Care Holdings, Inc. and its
subsidiaries (the Company) as of and for the year ended December 31, 2007, and have issued our
report thereon dated May 6, 2008. In planning and performing our audit of the financial statements
of the Company, in accordance with auditing standards generally accepted in the United States of
America, we considered the Company’s internal control over financial reporting internal control as
a basis for designing our auditing procedures for the purpose of expressing our opinion on the
financial statements, but not for the purpose of expressing an opinion on the effectiveness of the
Company’s internal control. Accordingly, we do not express an opinion on the effectiveness of the
Company’s internal control.
The maintenance of adequate control designed to fulfill control objectives is the responsibility of
management. Because of inherent limitations in internal control, errors or fraud may nevertheless
occur and not be detected. Also, controls found to be functioning at a point in time may later be
found deficient because of the performance of those responsible for applying them, and there can be
no assurance that controls currently in existence will prove to be adequate in the future as
changes take place in the organization.
A control deficiency exists when the design or operation of a control does not allow management or
employees, in the normal course of performing their assigned functions, to prevent or detect
misstatements on a timely basis. A significant deficiency is a control deficiency, or combination
of control deficiencies, that adversely affects the entity’s ability to initiate, authorize,
record, process, or report financial data reliably in accordance with generally accepted accounting
principles such that there is more than a remote likelihood that a misstatement of the entity’s
financial statements that is more than inconsequential will not be prevented or detected by the
entity’s internal control.
A material weakness is a significant deficiency, or combination of significant deficiencies, that
results in more than a remote likelihood that a material misstatement of the financial statements
will not be prevented or detected by the entity’s internal control.
Our consideration of internal control was for the limited purpose described in the first paragraph
and would not necessarily identify all deficiencies in internal control that might be significant
deficiencies or material weaknesses. We did not identify any deficiencies in internal control that
we consider to be material weaknesses, as defined above.
This communication is intended solely for the information and use of management, Shareholders,
others within the organization, and the Banks and is not intended to be and should not be used by
anyone other than these specified parties.
Very truly yours,
(signed) KPMG LLP