EX-2.35 8 a2212977zex-2_35.htm EX-2.35

Exhibit 2.35

 

UPDATED EXECUTION COPY

 

 

SIXTH AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT

 

among

 

NMC FUNDING CORPORATION,

 

as Transferor

 

NATIONAL MEDICAL CARE, INC.,

 

as Collection Agent

 

THE ENTITIES PARTIES HERETO,

 

as Conduit Investors

 

THE FINANCIAL INSTITUTIONS PARTIES HERETO,

 

as Bank Investors

 

THE BANK OF NOVA SCOTIA

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH

BARCLAYS BANK PLC

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, NEW YORK

PNC BANK, NATIONAL ASSOCIATION

and

 

ROYAL BANK OF CANADA

as Administrative Agents

 

and

 

THE BANK OF NOVA SCOTIA,

as Agent

 

Dated as of January 17, 2013

 



 

TABLE OF CONTENTS

 

ARTICLE I

 

DEFINITIONS 1

 

SECTION 1.1.

Certain Defined Terms

1

SECTION 1.2.

Other Terms

35

SECTION 1.3.

Computation of Time Periods

35

SECTION 1.4.

Amendment and Restatement

35

SECTION 1.5.

Funding on Effective Date

35

 

 

 

ARTICLE II

 

 

 

PURCHASE AND SETTLEMENTS 35

 

 

 

SECTION 2.1.

Facility

35

SECTION 2.2.

Incremental Transfers(NI); Certificates; Eligible Receivables

36

SECTION 2.3.

Selection of Tranche Periods and Tranche Rates

39

SECTION 2.4.

Discount, Fees and Other Costs and Expenses

41

SECTION 2.5.

Non-Liquidation Settlement and Reinvestment Procedures

41

SECTION 2.6.

Liquidation Settlement Procedures

43

SECTION 2.7.

Fees

44

SECTION 2.8.

Protection of Ownership Interest of the Investors; Special Accounts, Intermediate Concentration Account and Concentration Account

45

SECTION 2.9.

Deemed Collections; Application of Payments

46

SECTION 2.10.

Payments and Computations, Etc.

47

SECTION 2.11.

Reports

47

SECTION 2.12.

Collection Account

48

SECTION 2.13.

Sharing of Payments, Etc.

48

SECTION 2.14.

Right of Setoff

49

SECTION 2.15.

Addition and Removal of Transferring Affiliates

49

SECTION 2.16.

Optional Repurchase of Transferred Interest

50

SECTION 2.17.

Letters of Credit

50

SECTION 2.18.

Issuance of Letters of Credit

51

SECTION 2.19.

Disbursements and Reimbursements under Letters of Credit

52

SECTION 2.20.

Documentation in connection with Letters of Credit

53

SECTION 2.21.

Determination to Honor Drawing Request under a Letter of Credit

54

SECTION 2.22.

Reimbursement Obligations

54

SECTION 2.23.

Indemnity in connection with Letters of Credit

55

SECTION 2.24.

Liability for Acts and Omissions in connection with Letters of Credit

56

 

i



 

ARTICLE III

 

REPRESENTATIONS AND WARRANTIES 57

 

SECTION 3.1.

Representations and Warranties of the Transferor

57

SECTION 3.2.

Reaffirmation of Representations and Warranties by the Transferor

62

SECTION 3.3.

Representations and Warranties of the Collection Agent

62

 

 

 

ARTICLE IV

 

 

 

CONDITIONS PRECEDENT 64

 

 

 

SECTION 4.1.

Conditions to Closing

64

SECTION 4.2.

Conditions to Funding an Incremental Transfer (NI)

66

SECTION 4.3.

Conditions to Issuing a Letter of Credit and an Incremental Transfer (L/C)

66

SECTION 4.4.

Conditions to Funding an Incremental Transfer (NI) (Reimbursement Obligations)

67

 

 

 

ARTICLE V

 

 

 

COVENANTS 67

 

 

 

SECTION 5.1.

Affirmative Covenants of Transferor

67

SECTION 5.2.

Negative Covenants of the Transferor

74

SECTION 5.3.

Affirmative Covenants of the Collection Agent

77

SECTION 5.4.

Negative Covenants of the Collection Agent

79

 

 

 

ARTICLE VI

 

 

 

ADMINISTRATION AND COLLECTION 79

 

 

 

SECTION 6.1.

Appointment of Collection Agent

79

SECTION 6.2.

Duties of Collection Agent

80

SECTION 6.3.

Right After Designation of New Collection Agent

81

SECTION 6.4.

Collection Agent Default

82

SECTION 6.5.

Responsibilities of the Transferor

83

 

 

 

ARTICLE VII

 

 

 

TERMINATION EVENTS 84

 

 

 

 

SECTION 7.1.

Termination Events

84

SECTION 7.2.

Termination

87

 

ii



 

ARTICLE VIII

 

INDEMNIFICATION; EXPENSES; RELATED MATTERS 87

 

SECTION 8.1.

Indemnities by the Transferor

87

SECTION 8.2.

Indemnity for Taxes, Reserves and Expenses

90

SECTION 8.3.

Taxes

93

SECTION 8.4.

Other Costs, Expenses and Related Matters

95

SECTION 8.5.

Reconveyance Under Certain Circumstances

96

 

 

 

ARTICLE IX

 

 

 

THE AGENT; BANK COMMITMENT; THE ADMINISTRATIVE AGENTS 96

 

 

 

SECTION 9.1.

Authorization and Action

96

SECTION 9.2.

Agent’s Reliance, Etc.

97

SECTION 9.3.

Credit Decision

98

SECTION 9.4.

Indemnification of the Agent

98

SECTION 9.5.

Successor Agent

98

SECTION 9.6.

Payments by the Agent

99

SECTION 9.7.

Bank Commitment; Assignment to Bank Investors

99

SECTION 9.8.

Appointment of Administrative Agents

103

SECTION 9.9.

Administrative Agent’s Reliance, Etc.

104

SECTION 9.10.

Indemnification of the Administrative Agents

104

SECTION 9.11.

Successor Administrative Agents

105

SECTION 9.12.

Payments by the Administrative Agents

105

 

 

 

ARTICLE X

 

 

 

MISCELLANEOUS 106

 

 

 

SECTION 10.1.

Term of Agreement

106

SECTION 10.2.

Waivers; Amendments

106

SECTION 10.3.

Notices

106

SECTION 10.4.

Governing Law; Submission to Jurisdiction; Integration

111

SECTION 10.5.

Severability; Counterparts

112

SECTION 10.6.

Successors and Assigns

112

SECTION 10.7.

Waiver of Confidentiality

113

SECTION 10.8.

Confidentiality Agreement

113

SECTION 10.9.

No Bankruptcy Petition Against Conduit Investors

114

SECTION 10.10.

No Recourse Against Stockholders, Officers or Directors

115

SECTION 10.11.

Characterization of the Transactions Contemplated by the Agreement

115

SECTION 10.12.

Perfection Representations

116

 

iii



 

SCHEDULES

 

SCHEDULE I

Notice Addresses of Bank Investors

 

 

SCHEDULE II

Commitments of Bank Investors

 

 

SCHEDULE III

Perfection Representations

 

 

SCHEDULE IV

[RESERVED]

 

 

EXHIBITS

 

 

EXHIBIT A

Form of Notice of Incremental Transfer (NI)

 

 

EXHIBIT B

Form of L/C Issuance Notice

 

 

EXHIBIT C

Form of L/C Modification Notice

 

 

EXHIBIT D-1

Form of Special Account Letter

 

 

EXHIBIT D-2

Form of Concentration Account Agreement

 

 

EXHIBIT D-3

Form of Intermediate Concentration Account Agreement

 

 

EXHIBIT E

Form of Investor Report

 

 

EXHIBIT F

Form of Transfer Certificate

 

 

EXHIBIT G

Form of Assignment and Assumption Agreement

 

 

EXHIBIT H

List of Actions and Suits (Sections 3.1(g), 3.1(k) and 3.3(e))

 

 

EXHIBIT I

Location of Records

 

 

EXHIBIT J

Form of Business Associate Agreement

 

 

EXHIBIT K

[RESERVED]

 

 

EXHIBIT L

Forms of Secretary’s Certificate

 

 

EXHIBIT M

[RESERVED]

 

 

EXHIBIT N

[RESERVED]

 

 

EXHIBIT O

Form of Transferring Affiliate Letter

 

 

EXHIBIT P

Form of Amendments to Transferring Affiliate Letter, Receivables Purchase Agreement and Parent Agreement

 

iv



 

EXHIBIT Q

List of Transferring Affiliates

 

 

EXHIBIT R

Form of Account Agent Agreement

 

 

EXHIBIT S

List of Closing Documents

 

 

EXHIBIT T

Form of Agreed Upon Procedures Report

 

v


 

SIXTH AMENDED AND RESTATED TRANSFER
AND ADMINISTRATION AGREEMENT

 

SIXTH AMENDED AND RESTATED TRANSFER AND ADMINISTRATION AGREEMENT (this “Agreement”), dated as of January 17, 2013 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”, LIBERTY STREET FUNDING LLC, a Delaware limited liability company, as a Conduit Investor, ATLANTIC ASSET SECURITIZATION LLC, a Delaware limited liability company, as a Conduit Investor, SALISBURY RECEIVABLES COMPANY, LLC, a Delaware limited liability company, as a Conduit Investor, THUNDER BAY FUNDING, LLC, a Delaware limited liability company, as a Conduit Investor, MARKET STREET FUNDING LLC, a Delaware limited liability company, as a Conduit Investor, VICTORY RECEIVABLES CORPORATION, a Delaware corporation, as a Conduit Investor, the FINANCIAL INSTITUTIONS PARTIES HERETO, as Bank Investors, THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, as an Administrative Agent, BARCLAYS BANK PLC, as an Administrative Agent, CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, NEW YORK, as an Administrative Agent, PNC BANK, NATIONAL ASSOCIATION, as an Administrative Agent, ROYAL BANK OF CANADA, as an Administrative Agent, and THE BANK OF NOVA SCOTIA, as an Administrative Agent and as agent (in such capacity, the “Agent”) for the Investors.

 

PRELIMINARY STATEMENTS

 

WHEREAS, the Transferor, the Collection Agent, certain of the Conduit Investors, certain of the Bank Investors and certain of the Administrative Agents are parties to that certain Fifth Amended and Restated Transfer and Administration Agreement dated as of November 17, 2009 (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.

 

Account Schedule” has the meaning specified in Section 3.1(s).

 

Administrative Agent” means (i) The Bank of Nova Scotia, as administrative agent for the Related Group that includes Liberty Street, (ii) The Bank of Tokyo-Mitsubishi UFJ,

 



 

Ltd., New York Branch, as administrative agent for the Related Group that includes Victory Receivables Corporation, (iii) Barclays Bank PLC, as administrative agent for the Related Group that includes Salisbury, (iv) Credit Agricole Corporate and Investment Bank, New York, as administrative agent for the Related Group that includes Atlantic Securitization, (v) PNC Bank, National Association, as administrative agent for the Related Group that includes Market Street Funding LLC, and (vi) Royal Bank of Canada, as administrative agent for the Related Group that includes Thunder Bay.

 

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 The Bank of Nova Scotia, in its capacity as agent for the Investors, and any successor thereto appointed pursuant to Article IX.

 

Agent Fee Letter” means the Agent Fee Letter dated January 17, 2013 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, (iii) the aggregate accrued and unpaid L/C Fees at such time, (iv) the aggregate unpaid amount of all Reimbursement Obligations and accrued and unpaid RO Interest at such time, (v) the aggregate amount of cash collateral then required to be remitted to an L/C Collateral Account, (vi) the aggregate accrued and unpaid fees described in Section 2.7, and (vii) 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.

 

2



 

Applicable Margin” means (i) 2.00% (the “Base Margin”) minus (ii) the sum of the rates per annum used in the calculation of the Program Fee and the Facility Fee, provided that from and after April 30, 2013, the Base Margin will be based on the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agents pursuant to Section 5.1(a)(iii) and determined in accordance with the table below:

 

Consolidated Leverage Ratio

 

Percentage

 

Greater than 3.0:1.0

 

2.000

%

Greater than 2.5>1.0 but less than or equal to 3.0:1.0

 

1.750

%

Less than or equal to 2:5:1:0

 

1.500

%

 

Any increase or decrease in the Base Margin resulting from a change in the Consolidated Leverage Ratio shall become effective on the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 5.1(a)(iii); provided, however, that if a Compliance Certificate is not delivered when due in accordance therewith, then the Base Margin shall be equal to 2.00% as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered until the first Business Day immediately following delivery thereof.  Determinations by the Agent of the appropriate Applicable Margin at any time shall be conclusive absent manifest error.  Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Margin for any period shall be subject to the provisions of Section 2.3(g).

 

Assignment and Assumption Agreement” means an Assignment and Assumption Agreement substantially in the form of Exhibit G attached hereto.

 

Atlantic Securitization” means Atlantic Asset Securitization LLC, a Delaware limited liability company, together with its successors and permitted assigns.

 

Auditor” shall have the meaning specified in Section 6.2(c).

 

Bank Investors” means each financial institution (including in its capacity as an “L/C Issuer” where applicable) identified as a “Bank Investor” on Schedule II and their respective successors and assigns.

 

Bank Regulatory Guideline” shall have the meaning specified in Section 8.2.

 

Bankruptcy Code” means the United States Bankruptcy Code, 11 U.S.C. §101 et seq., as amended.

 

Barclays” means Barclays Bank PLC, together with its successors and permitted assigns.

 

Base Rate” or “BR” means, with respect to the Investors in any Related Group, a rate per annum equal to the greatest of (i) the prime rate of interest announced by the

 

3



 

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), (ii) the Eurodollar Rate determined as of such date for an assumed Eurodollar Tranche Period of one month commencing on such date and (iii) 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.

 

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.

 

BTMU” means The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, together with its successors and assigns.

 

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.

 

Capital Stock” means (a) in the case of a corporation, capital stock, (b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock, (c) in the case of a partnership (including, without limitation, a KGaA (Kommanditgesellschaft auf Aktien)), partnership interests (whether general or limited) or other equivalents (however designated) of capital stock, (d) in the case of a limited liability company, membership interests and (e) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.

 

4



 

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.

 

Cash-Collateralize” means to pledge and deposit into the L/C Collateral Account, for the benefit of the L/C Issuers and Investors, as collateral for the Letter of Credit Obligations, immediately available funds pursuant to documentation in form and substance satisfactory to the Agent.

 

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 FME KGaA charged with management of FME KGaA shall at any time fail to be a Subsidiary of Fresenius SE, or if Fresenius SE shall fail at any time to own and control more than twenty-five percent (25.00%) of the Capital Stock with ordinary voting power of FME KGaA.

 

Closing Date” means January 17, 2013.

 

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.

 

Collection Account” means the account, established in the name of either the Agent or the Transferor, for the benefit of the Investors, pursuant to Section 2.12; provided that, until the Agent otherwise notifies the Collection Agent, the Collection Account shall be the same as the Concentration Account.

 

5



 

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 Factor” 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, all payments under the Medicare “cost of recovery” process that are allocable to such Receivable and all other 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.

 

Commercial Paper” means, with respect to any Conduit Investor, the promissory notes issued by such Conduit Investor or its Related CP Issuer 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, and to issue Letters of Credit to the Transferor in its capacity as an L/C Issuer, in accordance herewith and in an aggregate 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 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 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, and to issue Letters of Credit to the Transferor in its capacity as an L/C Issuer, in accordance herewith in an aggregate amount 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 and to issue Letters of Credit in its capacity as an L/C Issuer not to exceed in the aggregate the amount set forth in an Assignment and Assumption Agreement between such assignee and its assign.

 

Commitment Termination Date” means January 15, 2016, 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 depository account in the name of the Transferor maintained at a bank acceptable to each Administrative Agent for the purpose of receiving Collections remitted from the Special Accounts and the Intermediate Concentration Account.

 

6



 

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 (or, in the case of clause (c) below, all Self-Pay Obligors in the aggregate) 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), 2.50% of the Eligible Receivable Balance outstanding on such date; provided that, subject to clause (c) below, the Concentration Factor for each of Aetna, Inc., Cigna Corp., Wellpoint Inc. and United Healthcare Insurance Company, and any successor thereto, shall be (i) for so long as such Obligor is rated at least A- by Standard & Poor’s and at least A3 by Moody’s and, if rated by Fitch, at least A- by Fitch, 10.00% of the Eligible Receivable Balance outstanding on such date and (ii) for so long as clause (i) does not apply but such Obligor is rated at least BBB- by Standard & Poor’s and at least Baa3 by Moody’s and, if rated by Fitch, at least BBB- by Fitch, 6.67% of the Eligible Receivable Balance outstanding on such date;

 

(b)           in the case of any US Government Obligor that does not have a Special Concentration Limit, 80.00% of the Eligible Receivable Balance on such date; or

 

(c)           in the case of all Self-Pay Obligors in the aggregate, 5.00% of the Eligible Receivable Balance; or

 

(d)           in the case of any Obligor (including any Obligor described in clauses (a), (b) or (c)), 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 Agents (any such higher or lower amount being a “Special Concentration Limit”).

 

Conduit Cessation” means, with respect to a Conduit Investor, the cessation, suspension or winding down of such Conduit Investor’s business for any reason other than as a consequence of (i) a general market disruption in the U.S. commercial paper market that has rendered such Conduit Investor unable to place its Commercial Paper in such market or that has caused such Conduit Investor or its administrative agent to reasonably conclude that it would be commercially impractical for such Conduit Investor to place its Commercial Paper in such market, or (ii) the introduction after the Closing Date of any law, rule or regulation, or the issuance after the Closing Date of any order or directive of any governmental authority, having

 

7



 

the effect of requiring such Conduit Investor to cease, suspend or wind down its business generally or its issuance of Commercial Paper.

 

Conduit Investor” means Atlantic Securitization, Liberty Street, Salisbury, Thunder Bay, Market Street or Victory Receivables.

 

Confidential Information” shall have the meaning specified in Section 5.1(d).

 

Consolidated Leverage Ratio” shall have the meaning specified in FME KGaA Credit Facility as in effect on the Closing Date.

 

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 delivered to the Administrative Agents by the Collection Agent on the date hereof or otherwise approved by each Administrative Agent, and (ii) if an open account agreement, is evidenced by one of the forms of invoices delivered to the Administrative Agents by the Collection Agent on the date hereof 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.

 

Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto. Without limiting the generality of the foregoing, a Person shall be deemed to be Controlled by another Person if such other Person possesses, directly or indirectly, power to vote ten percent (10%) or more of securities having ordinary voting power for the election of directors, managing general partners or the equivalent.

 

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 or its Related CP Issuer, other borrowings by such Conduit Investor or its Related CP Issuer 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 CP Issuer 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

 

8


 

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 Agricole” means Credit Agricole Corporate and Investment Bank, New York, together with its successors and permitted assigns.

 

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 the written summary of such policies and practices furnished by the Collection Agent to the Administrative Agents on the date hereof, 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 or its Related CP Issuer and a Credit Support Provider evidencing the obligation of such Credit Support Provider to provide credit support to such Conduit Investor or its Related CP Issuer in connection with the issuance by such Conduit Investor or its Related CP Issuer 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 or its Related CP Issuer in connection with the issuance by such Conduit Investor or its Related CP Issuer 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 sum (without duplication) of (a) the aggregate Outstanding Balance of all Receivables that became Defaulted Receivables during such month plus (b) the aggregate Outstanding Balance of all Receivables that became Disputed Receivables during such month, plus (c) the gross write-offs on Receivables (other than any Government Program Receivable) that were less than 270 days past due by (ii) the aggregate Outstanding Balance of Receivables that shall have been acquired by the Seller during the month occurring nine (9) months prior to such calendar month.

 

9



 

Defaulted Receivable” means:  (i) a Receivable as to which any payment, or part thereof, remains unpaid for over 270 days from the original due date; (ii) a Receivable as to which an Event of Bankruptcy has occurred and is continuing with respect to the Obligor thereof (unless the Transferor, the Originating Entity and the Collection Agent do not know, and could not reasonably be expected to know, of the existence of such Event of Bankruptcy); or (iii) a Receivable less than 270 days past due from the original due date which has been written off as uncollectible or should be written off as uncollectible in accordance with the Credit and Collection Policy; provided that the term “Defaulted Receivable” shall not include any Government Program Receivable.

 

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 and (ii) which is not a Defaulted Receivable.

 

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).

 

Diluted Government Program Receivable” has the meaning set forth in the definition of “Dilution Ratio”.

 

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 sum (without duplication) of (A) 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, Contractual Adjustments 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 any Pre-Arranged Contractual Adjustment reflected in the initial Outstanding Balance of the applicable Receivable and (B) the aggregate Outstanding Balance of Government Program Receivables less than 270 days past due from the original due date which have been written off as uncollectible during such month or should be written off as uncollectible in accordance with the Credit and Collection Policy during such month (with such Outstanding Balance being determined without

 

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giving effect to such write-off) (each such Receivable, a “Diluted Government Program Receivable”) by (ii) the aggregate Outstanding Balance of all Receivables which arose during the preceding month and (b) 2.0%.

 

Dilution Reserve” means, at any time, the greater of (A) the product of (i) the Dilution Reserve Percentage and (ii) the Net Receivables Balance on such date and (B) the product of (i) 2.0% and (ii) the Net Receivables Balance on such date.

 

Dilution Reserve Percentage” means, on any day, an amount equal to:

 

[ (2.25 x ADR ) + [( DS - ADR ) x ( DS / ADR)] ]  x DH

 

Where:

 

ADR                     =              the average Dilution Ratio in respect of the 12 calendar month period then most recently ended.

 

DS                                =              the highest Dilution Ratio at any time during the 12 calendar month period then most recently ended.

 

DH                             =              the Dilution Horizon on such date.

 

Discount” means, with respect to any Tranche Period:

 

 

(TR x TNI x

AD

)

 

 

 

360

 

 

 

Where:

 

TR                               =                                         the Tranche Rate applicable to such Tranche

Period.

 

TNI                          =                                         the portion of the Net Investment allocated to

such Tranche Period.

 

AD                              =                                         the actual number of days during such Tranche

Period.

 

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:

 

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TD + LY

 

Where:

 

TD                               =                                         the sum of the unpaid Discount for all Tranche

Periods to which any portion of the Net Investment is allocated and all accrued and unpaid RO Interest.

 

LY                               =                                         the Liquidation Yield.

 

Disputed Receivable” means, 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 due date.

 

Drawing Date” has the meaning specified in Section 2.19.

 

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 depository 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 depository 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 depository institution or trust company shall have a credit rating from Moody’s 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 Moody’s and by S&P; (iii) certificates of deposit having, at the time of investment or contractual commitment to invest therein, a rating from Moody’s 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 depository 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 Moody’s 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

 

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long as the other party to the repurchase agreement has at the time of investment therein, a rating from Moody’s 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, 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) a Defaulted Receivable, (b) a Disputed Receivable, (c) in the case of a Medicare Receivable, more than 90 days past due or (d) in the case of any other Receivable, more than 180 days past due;

 

(v)           which is not a Delinquent Receivable at the time of the initial creation of an interest of the Agent or any Investor therein;

 

(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;

 

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(ix)          which is an “account” 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 inquiry 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;

 

(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; provided that in the case of Obligors that have been directed to make payments to a Special Account maintained by KeyBank National Association, the Receivables of such Obligors may, if they otherwise comply with the requirements of the definition of “Eligible Receivable,” constitute Eligible Receivables during the period from the Closing Date until March 4, 2013 notwithstanding that such Special Account Bank shall not have executed a Special Account Letter, but at all times thereafter shall cease to constitute Eligible Receivables unless and until a Special Account Letter in respect of such Special Account shall then be in full force and effect;

 

(xvi)        neither the assignment of which under the Transferring Affiliate Letter by the applicable Transferring Affiliate, the assignment of which under the Receivables Purchase

 

14



 

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;

 

(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 the schedule of Fiscal Intermediaries (FI)/Medicare Administrative Contractors (MAC) furnished by the Collection Agent to the Administrative Agents on the date hereof , as such schedule may be modified from time to time with the prior written consent of each Administrative Agent acting reasonably and in good faith (the “FI/MAC Schedule”); and

 

(xix)        which is not a Receivable generated by the Spectra Renal Management Group.

 

Eligible Receivable Balance” means the Total Outstanding Receivable Balance minus the aggregate Outstanding Balance of all Receivables that are not Eligible Receivables, minus the Unrealized Contractual Adjustment Reserve.

 

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” has the meaning specified in the definition of “Liquidation Yield”.

 

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

 

15



 

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, that (i) in the absence of such agreement, each Eurodollar Tranche Period shall be such period as may be selected by the related Administrative Agent, (ii) 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, (iii) 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 and (iv) from and after the Termination Date, each Eurodollar Tranche Period shall be such period as may be selected by the related Administrative Agent pursuant to Section 2.3(d).

 

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

 

16


 

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 $800,000,000; provided that such amount may not at any time exceed the aggregate Commitments at any time in effect.

 

Facility L/C Sublimit” means $200,000,000.

 

Fee Letter” means the Investor Fee Letter or the Agent Fee Letter.

 

FI/MAC Schedule” has the meaning specified in the definition of “Eligible Receivable”.

 

Final Collection Date” means the date as of which (i) the Net Investment shall have been reduced to zero, (ii) all Letters of Credit issued in connection with this Agreement shall have been surrendered for cancellation, expired or otherwise ceased, to the satisfaction of the Agent, to be outstanding and available for drawing, (iii) all Reimbursement Obligations shall have been repaid in full in cash, (iv) all accrued Discount, L/C Fees, RO Interest and Servicing Fees shall have been paid in full in cash and (v) all other Aggregate Unpaids shall have been paid in full in cash.

 

Finance Charges” means, with respect to a Contract, any finance, interest, late or similar charges owing by an Obligor pursuant to such Contract.

 

Fitch” means Fitch, Inc. or its successors.

 

FL Ratable Share” means, at any time with respect to any Related Group, a fraction (expressed as a percentage) equal to the Related Group Limit of such Related Group divided by the Facility Limit at such time.

 

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 the Credit Agreement dated as of October 30, 2012 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, 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.

 

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Fresenius SE” means Fresenius SE & Co. KGaA, a German partnership limited by shares.

 

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.

 

Government Program Receivable” means a Receivable under the Medicare, Medicaid or CHAMPUS/VA program.

 

Governmental Acts” shall have the meaning specified in Section 2.23.

 

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.

 

Incremental Transfer” means either an Incremental Transfer (NI) or an Incremental Transfer (L/C).

 

Incremental Transfer (NI)” means a Transfer upon giving effect to which the Net Investment hereunder shall be increased.

 

Incremental Transfer (L/C)” means a Transfer upon giving effect to which the Letter of Credit Obligations hereunder shall be increased.

 

Incremental Transfer (NI) Ratable Share” means, in respect of any Incremental Transfer (NI) and any Related Group,

 

(a)           at any time that no Letter of Credit is then outstanding, such Related Group’s FL Ratable Share; and

 

(b)           at any time that one or more Letters of Credit are then outstanding, such Related Group’s FL Ratable Share; provided that if the sum of the Net Investment and

 

18



 

Letter of Credit Obligations of any Related Group exceeds an amount equal to such Related Group’s FL Ratable Share of the Net Investment and Letter of Credit Obligations of all Related Groups at such time after giving effect to such Incremental Transfer (NI) (such Related Group then being a “Non-Pro Rata Related Group”), the Incremental Transfer (NI) Ratable Share of each Related Group in such Incremental Transfer (NI) shall be adjusted such that each Non-Pro Rata Related Group shall not participate in such Incremental Transfer (NI) unless and until, after giving effect to any Incremental Transfer (NI), the RG Transferred Interest of such Non-Pro Rata Related Group would not exceed its FL Ratable Share.

 

In the interest of administrative efficiency, the Agent shall have the authority to adjust the applicable Incremental Transfer (NI) Ratable Share in any instance under clause (b) above to take account of reasonable minimum funding amounts and rounding.  Any determination by the Agent of Incremental Transfer (NI) Ratable Shares shall be conclusive and binding, absent manifest error.

 

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.

 

Independent Director” shall mean a director of the Transferor 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 the Seller or any of its Affiliates (provided that indirect stock ownership of the 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 the Seller or any of its Affiliates (other than the Transferor) (the Seller and its Affiliates other than the Transferor 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; (e) is not and has not, during the past five years, been a Person controlling or under common control of any person referred to in clauses (a) — (d); and (f) 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 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

 

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provide, in the ordinary course of their respective business, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities.

 

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 depository 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 and other Special Account Banks.

 

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 each Administrative 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 Eighth Amended and Restated Investor Fee Letter dated January 17, 2013 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.

 

L/C Collateral Account” means Account No. 03470-19 entitled “L/C Collateral Account,” a segregated cash collateral account maintained in New York at the Agent (ABA No. 02600 2532) for the benefit of the L/C Issuers and Investors, and any other cash collateral account established by the Agent in New York in substitution therefor.

 

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L/C Fees” means, in respect of any Letter of Credit, all administrative fees that shall have been negotiated between the applicable L/C Issuer and the Transferor in respect of such Letter of Credit.  Unless otherwise agreed by the Agent, accrued and unpaid L/C Fees shall be due and payable on the last day of each calendar month or, if in any case such day is not a Business Day, the next following day that is a Business Day; provided that L/C Fees constituting upfront or issuance fees may be paid on the date of issuance of the related Letter of Credit.

 

L/C Issuance Notice” has the meaning specified in Section 2.18.

 

L/C Issuer” means a Bank Investor in its capacity as an issuer of a Letter of Credit.  In the case of the Related Group in respect of which RBC is Administrative Agent, RBC as L/C Issuer shall be a fronting bank for Thunder Bay and in the case of any drawing made under a Letter of Credit issued by RBC, the “L/C Issuer” that holds the resulting Reimbursement Obligation shall be Thunder Bay.

 

L/C Modification” has the meaning specified in Section 2.18(f).

 

L/C Modification Notice” has the meaning specified in Section 2.18(f).

 

Letter of Credit” means a standby letter of credit issued by an L/C Issuer in U.S. Dollars for the account of the Transferor under and pursuant to this Agreement.

 

Letter of Credit Application” means, in respect of any Letter of Credit, such application and documentation as the applicable L/C Issuer may require in connection with the issuance of such Letter of Credit.

 

Letter of Credit Obligations” means, at any time, the sum, without duplication, of (a) the aggregate undrawn amount of outstanding Letters of Credit at such time plus (b) the aggregate unpaid amount at such time of all Reimbursement Obligations.  If (i) any Letter of Credit is subject to International Standby Practices (ISP98) and (ii) by reason of the circumstances described in Rule 3.14(a) of ISP98, the last day for presentation is automatically extended, the undrawn amount of such Letter of Credit shall continue to constitute “Letter of Credit Obligations” hereunder at all times during the period from its original expiry date to the last day of such extension.

 

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 LBR x NI) x (EMP/360)

 

Where:

 

RVF                       =                                         the Rate Variance Factor at such time;

 

LBR                      =                                         2.50% plus the Base Rate at such time which is applicable to the liquidation period after a Termination Event;

 

NI                                  =                                         the sum of the Net Investment at such time and the aggregate Letter of Credit Obligations then outstanding; and

 

EMP                     =                                         the sum of (1) the quotient of (i) the Total Outstanding Receivables Balance as of the last day of the most recently ended calendar month (excluding Receivables generated by the Spectra Renal Management Group) divided by (ii) the quotient of (A) the aggregate initial Outstanding Balance of Receivables (excluding Receivables generated by the Spectra Renal Management Group) that arose during the ninety (90) day period ending on such last day, divided by (B) ninety (90) plus (2) the Collection Delay Factor (such sum, the “Estimated Maturity Period”).

 

Liquidity Provider” means, with respect to any Conduit Investor, the Person or Persons who will provide liquidity support to such Conduit Investor or its Related CP Issuer in connection with the issuance by such Conduit Investor of Commercial Paper.

 

Liquidity Provider Agreement” means an agreement between a Conduit Investor or its Related CP Issuer and one or more Liquidity Providers evidencing the obligation of each such Liquidity Provider to provide liquidity support to such Conduit Investor or its Related CP Issuer in connection with the issuance by such Conduit Investor or its Related CP Issuer 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 sum of (A) the aggregate Outstanding Balance of all non-Medicare Receivables acquired by the Transferor during the six (6) most recently ended calendar months plus (B) the aggregate Outstanding Balance of all Medicare Receivables acquired by the Transferor during the three (3) most recently ended calendar months, by (ii) the Net Receivable Balance as of the last day of the most recently ended calendar month and (b) the highest average Default Ratio for any consecutive three (3) month period during the immediately preceding 12-month period.

 

Loss Percentage” means on any day the greater of (i) 2.25 times the Loss Horizon as of such day and (ii) 20.00%.

 

Loss Reserve” means, on any day, an amount equal to:

 

 

LP x NRB

 

Where:

 

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LP                                 =                                         the Loss Percentage at the close of business of the Collection Agent on  such day; and

 

NRB                     =                                         the Net Receivables Balance at the close of business of the Collection Agent on such day;

 

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 that were actually written off during such month, excluding the Outstanding Balance of any Receivables to the extent comprising part of the North Carolina Disputed Medicaid Amount arising 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 662/3% of the aggregate Commitments of all Investors as of such date.

 

Market Street” means Market Street Funding LLC, a Delaware limited liability company, together with its successors and permitted assigns.

 

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 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 or such Designated Account Agent of any such provision or, if such Transferring Affiliate or such Designated 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 Aggregate Face Amount” means, at any time in respect of the Letters of Credit then outstanding, the aggregate face amount of such Letters of Credit, whether drawn or undrawn and including, in the case of any Letter of Credit the face amount of which shall, by the express terms of such Letter of Credit, increase by a specified amount on any future date during the term of such Letter of Credit, the aggregate amount of any such prospective increases in face amount.

 

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Maximum Percentage Factor” means 100.00%.

 

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 Receivable” means any Receivable that is subject to the Medicare Regulations.

 

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 Moody’s Investors Service, Inc.

 

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 Investment” means the sum of the cash amounts paid to the Transferor for each Incremental Transfer (NI) less the aggregate amount of Collections received and applied 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.  A portion of the Net Investment shall be deemed to be held by an

 

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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 Eligible Receivables Balance minus 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.

 

NMC” means National Medical Care, Inc., a Delaware corporation and owner of 100.00% of the outstanding stock of the Transferor.

 

North Carolina Disputed Medicaid Amount” means the amount written off during any month after October 2012 in connection with disputes arising in 2002 relating to the failure on the part of the claims processor (EDS) to correctly process certain Medicaid claims with North Carolina Medicaid, which amount shall not exceed an aggregate amount for all months of $24,000,000.

 

Notice of Incremental Transfer (NI)” shall have the meaning specified in Section 2.2 and shall include a Notice of Incremental Transfer (NI) deemed to have been issued pursuant to Section 2.19.

 

Notice of Reimbursement Obligation” shall have the meaning specified in Section 2.19.

 

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;

 

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(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 (each such Person, a “Self-Pay Obligor”).

 

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 with respect to any Receivable the outstanding principal amount thereof (excluding any accrued and outstanding Finance Charges related thereto) minus the amount of the Pre-Arranged Contractual Adjustments that have not yet been applied to reduce such outstanding principal amount.  It is understood and agreed that, for purposes of calculating the Eligible Receivable Balance, a Receivable that has been written-off will have an Outstanding Balance of zero.

 

Parent Agreement” means the Second Amended and Restated Parent Agreement, 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.

 

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Percentage Factor” shall mean the fraction (expressed as a percentage) computed at any time of determination as follows:

 

NI + LCO + LR + DLR + DR + SFR
NRB

 

Where:

 

NI                                  =                                         the Net Investment at the time of such computation;

 

LCO                      =                                         the Maximum Aggregate Face Amount of all Letters of Credit outstanding at the time of such computation, plus any Reimbursement Obligations then outstanding in respect of any Letter of Credit that shall have ceased to be in effect, minus any amount then held in an L/C Collateral Account;

 

LR                               =                                         the Loss Reserve at the time of such computation;

 

DLR                      =                                         the Dilution Reserve at the time of such computation;

 

DR                              =                                         the Discount Reserve at the time of such computation;

 

SFR                         =                                         the Servicing Fee Reserve at the time of such computation; and

 

NRB                     =                                         the Net Receivables Balance at the time of such computation.

 

Perfection Representations” means the representations, warranties and covenants set forth in Schedule III attached hereto.

 

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.

 

PNC” means PNC Bank, National Association, together with its successors and assigns.

 

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

 

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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 Article 9 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.

 

Rate Variance Factor” means 2.25 or such other number, computed from time to time in good faith by the Agent (with the written consent of each Administrative Agent), that reflects the largest potential variance (from minimum to maximum) in selected interest rates over a period of time selected by the Agent from time to time, set forth in written notice by the Agent to each Administrative Agent, the Transferor and the Collection Agent.

 

Rating Agency” means, at any time, Moody’s, S&P, Fitch or any other rating agency chosen by a Conduit Investor or its Related CP Issuer to rate its commercial paper notes at such time.

 

RBC” means Royal Bank of Canada, together with its successors and assigns.

 

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 (including, without limitation, medicines) 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.  For the avoidance of doubt, the term “Receivable” shall include all amounts payable by any Obligor in connection with any such sale or rendering of services, regardless of when an invoice is issued therefor and regardless of any write-off with respect to such Receivable or any other change or adjustment to the accounting or invoicing with respect to such sale or rendering of services.  Accordingly, the cancellation of an invoice for a Receivable and the issuance of a new invoice under a new invoice number, a new invoice date and/or a new Obligor name (or any other accounting or invoicing change) shall not result in the creation of a new Receivable or change

 

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the original due date of the Receivable.  Similarly, if a portion of a Receivable owing by an Obligor is written-off but is subsequently re-billed to Medicare or another Obligor, the amount owing by Medicare or such other Obligor is part of the original Receivable and is not a new Receivable and the original due date of the Receivable will likewise remain unchanged.

 

Receivables Purchase Agreement” means the Second 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.

 

Recharacterization” shall have the meaning specified in Section 10.11.

 

Recipient” shall, solely for purposes of Section 8.3,  have the meaning specified in such section.

 

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.

 

Reimbursement Obligation” shall have the meaning specified in Section 2.19(b).

 

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 Commercial Paper” means, at any time, Commercial Paper then outstanding that shall have been issued by the Conduit Investors to acquire or maintain any Net Investment hereunder.

 

Related CP Issuer” means, when used in relation to any Conduit Investor, any other entity that issues Commercial Paper for the purpose of funding all or part of such Conduit Investor’s interest in the Transferred Interest, as specified from time to time in a written notice by the Administrative Agent for such Conduit Investor to the Collection Agent, together with the successors and permitted assigns of such entity.

 

Related Group” means any of the following groups: (i) Liberty Street, as a Conduit Investor, and Scotiabank, as a Bank Investor and as an Administrative Agent, together with their respective successors and permitted assigns, (ii) Salisbury, as a Conduit Investor and as a Bank Investor (for all purposes other than in the capacity of an L/C Issuer), and Barclays as a Bank Investor (solely in the capacity of an L/C Issuer) and as an Administrative Agent, together with their respective successors and permitted assigns, (iii) Atlantic Securitization, as a Conduit Investor, and Credit Agricole, as a Bank Investor and as an Administrative Agent, together with their respective successors and permitted assigns, (iv) Thunder Bay, as a Conduit

 

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Investor, and RBC, as a Bank Investor and as an Administrative Agent, together with their respective successors and permitted assigns, (v) Market Street, as a Conduit Investor, and PNC, as a Bank Investor and as an Administrative Agent, together with their respective successors and permitted assigns and (vi) Victory Receivables, as a Conduit Investor, and BTMU, as a Bank Investor and as an 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, and (C) under the Parent Agreement; and

 

(vi)  all Proceeds of any of the foregoing.

 

Remittance Date” means any of the following:  (i) the last day of a Tranche Period applicable to any portion of the Net Investment, (ii) the last day of a calendar month or, if in any case such day is not a Business Day, the next following day that is a Business Day, (iii) a Drawing Date or RO Refinancing Date, (iv) any other date on which any payment or remittance is contemplated to be made hereunder, or (v) following the Termination Date or the occurrence of a Termination Event or Potential Termination Event, any Business Day determined by the Agent to be a Remittance Date.

 

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RG Transferred Interest” means, with respect to any Related Group at any time of determination, the pro rata share of such Related Group in the Transferred Interest, which pro rata share shall be based on the percentage that the Net Investment and Letter of Credit Obligations in respect of the Investors in such Related Group bears to the aggregate Net Investment and Letter of Credit Obligations of all Investors at such time.  From and after the occurrence of the Termination Date, and on each day on which a Termination Event or a Potential Termination Event has occurred and is continuing, the RG Transferred Interest shall be calculated as of the last Business Day prior to the occurrence of the Termination Date or such Termination Event or Potential Termination Event, as applicable, and shall remain fixed at all times thereafter until, in the case of a Termination Event or Potential Termination Event, such event shall be cured or waived.

 

RO Interest” has the meaning specified in Section 2.19.

 

RO Refinancing Date” has the meaning specified in Section 2.19.

 

Salisbury” means Salisbury Receivables Company, LLC, a Delaware limited liability company, together with its successors and permitted assigns.

 

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.

 

Self-Pay Obligor” has the meaning specified in the definition of Obligor.

 

Seller” means NMC and its successors and permitted assigns.

 

Servicing Fee” means the fees payable to the Collection Agent by (1) the Investors in a Related Group, with respect to a Tranche held by the Investors in such Related Group, in an amount equal to 1.00% per annum on the amount of the Net Investment allocated to such Tranche pursuant to Section 2.3 hereof and (2) each L/C Issuer, in an amount equal to 1.00% per annum on the Letter of Credit Obligations allocable to such L/C Issuer.  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.

 

Servicing Fee Reserve” means at any time an amount equal to the product of (i) 2.25, (ii) the aggregate Outstanding Balance of all Receivables at such time, (iii) the Servicing Fee percentage and (iv) the Estimated Maturity Period divided by 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 depository account maintained at a bank acceptable to each Administrative Agent for the purpose of receiving Collections, which account

 

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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 Standard & Poor’s Financial Services LLC business.

 

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.

 

Thunder Bay” means Thunder Bay Funding, LLC.

 

Total Outstanding Receivable Balance” means the aggregate Outstanding Balance of the Receivables.

 

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.

 

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Tranche Rate” means the CP Rate, the Base Rate or the Eurodollar Rate, subject to Section 7.2(b); provided that, with respect to any Related Group, if:  (i) a Conduit Cessation shall have occurred in respect of the Conduit Investor in such Related Group and (ii) such Conduit Investor shall have no Commercial Paper outstanding in support of its Net Investment hereunder, the Tranche Rate applicable to the Net Investment of any Investor in such Related Group shall be equal to the Eurodollar Rate in respect of the applicable Tranche Period plus the Program Fee; provided further that from and after the occurrence of the Termination Date, any Termination Event or any Potential Termination Event, the foregoing proviso shall cease to be given effect.

 

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 Transfer Certificates, the Transferring Affiliate Letter, the Parent Agreement, the Intermediate Concentration Account Agreements, Letters of Credit, Letter of Credit Applications 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 the issuance of any Letter of Credit or 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.

 

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, (i) in the case of an Incremental Transfer (NI), the amount paid to the Transferor by such Investors as described in the related Transfer Certificate and (ii) in the case of an Incremental Transfer (L/C), the face amount of the Letter of Credit to be issued by the applicable L/C Issuer as described in the related 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);

 

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provided that, during the period from the Termination Date until the Final Collection Date, the Transferred Interest shall include the right to receive 100% of the Collections.  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.  Following the later to occur of the Termination Date and the Final Collection Date, the Transferred Interest shall be reduced to zero.

 

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.

 

Transferring Affiliate Letter” means the Amended and Restated Affiliate Letter dated October 16, 2008 from the Transferring Affiliates to the Seller, as the same may be amended, restated, supplemented or otherwise modified from time to time with the consent of each Administrative Agent.

 

Thunder Bay” means Thunder Bay Funding, LLC a Delaware limited liability company, together with its successors and permitted assigns.

 

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.  In addition, the Unrealized Contractual Adjustment Reserve will also include amounts sufficient to cover system-generated rebates, rebills and prompt pay discounts.

 

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

 

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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.

 

Victory Receivables” means Victory Receivables Corporation, a Delaware corporation, together with its successors and permitted assigns.

 

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, (i) 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 and (ii) request one or more L/C Issuers to issue or cause the issuance of Letters of Credit, in each case subject to the terms hereof.  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.  The Transferred Interest arising in connection with the Transfers made hereunder shall be allocated among the Related Groups in accordance

 

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with their respective RG Transferred Interests as of any date of determination, and as among the Related Groups the RG Transferred Interests may fluctuate from time to time based on the Net Investment and Letter of Credit Obligations outstanding at such time.  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.                      Incremental Transfers(NI); Certificates; Eligible Receivables.  (a)  Incremental Transfers(NI).  Upon the terms and subject to the conditions herein set forth the Transferor may, at its option, request that an Incremental Transfer (NI) be made by the Agent, on behalf of each of the applicable Investors.

 

The Transferor shall, by written notice to the Agent substantially in the form of Exhibit A hereto (a “Notice of Incremental Transfer (NI)”) (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.  A Notice of Incremental Transfer (NI) shall be issued not later than 3:00 p.m. (New York time) at least one (1) Business Day prior to the proposed date of the Incremental Transfer (NI) requested therein.  Each Notice of Incremental Transfer (NI) shall specify:  (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 (NI) and (z) the desired Tranche Period(s) and allocations of the Net Investment of such Incremental Transfer thereto as required by Section 2.3 (it being understood that any request for a Eurodollar Period shall be subject to the approval of each applicable Administrative Agent).  The Agent shall promptly advise each Administrative Agent of the allocation of the Transfer Price in respect of the requested Incremental Transfer (NI) based on the Incremental Transfer (NI) Ratable Share anticipated to be applicable as of the date of such proposed Incremental Transfer (NI).  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 (NI) to be made to the Agent on behalf of such Person.  To the extent that any such Incremental Transfer (NI) 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 Incremental Transfer (NI)  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 (NI) 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

 

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issuing commercial paper or promissory notes or obtaining deposits as loans from third parties) for any Investor to fund such Incremental Transfer (NI).

 

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 (NI), 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 (NI) made by such Administrative Agent’s Related Group.  The Agent shall indicate the amount of the Incremental Transfer (NI) 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(NI).

 

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 Incremental Transfer (NI) 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 Incremental Transfer (NI) 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 (NI) 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 (NI) that such Bank Investor will not make its share of any Transfer Price relating to such Incremental Transfer (NI) 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.

 

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(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 (NI) 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 Related Groups in accordance with each such Related Group’s RG Transferred Interest at such time.

 

(d)           [Reserved].

 

(e)           Percentage Factor; Transferred Interest.  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 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 any Administrative 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, or any Incremental Transfer or any Reinvestment Transfer made, during any period between computations of the Percentage Factor.  For the avoidance of doubt, the “Transferred Interest” after the Termination Date may be different from the Percentage Factor.  As set forth in the definition of “Transferred Interest”, the Transferred Interest shall remain constant at 100% at all times on and after the Termination Date until the Final Collection Date, at which time the Transferred Interest shall be reduced to zero.

 

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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 or its Related CP Issuer 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, subject to the terms of the definition of “Tranche Rate”.  In the case of any Tranche Period outstanding upon the Termination Date, such Tranche Period shall end on such date unless otherwise directed by the applicable Administrative Agent.

 

(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 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, unless the Transferor has requested and the applicable Administrative Agent has approved a different Tranche Period and Tranche Rate.  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 different Tranche Period and Tranche Rate.  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 or is a Eurodollar Period, 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.

 

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(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

 

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the Net Investment allocated 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.

 

(g)           Applicable Margin.  If, as a result of any restatement of or other adjustment to the financial statements of any applicable Person or for any other reason, it shall be determined that (i) the Consolidated Leverage Ratio as calculated as of any applicable date was inaccurate and (ii) a proper calculation of the Consolidated Leverage Ratio would have resulted in a higher Applicable Margin for such period, the Transferor shall immediately and retroactively be obligated to pay to the Administrative Agents for the account of the applicable Investors, promptly on demand by any Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Transferor under the Bankruptcy Code of the United States, automatically and without further action by any Administrative Agent), an amount equal to the excess of the amount of Discount that should have been paid for such period over the amount of Discount actually paid for such period.  This paragraph shall not limit the rights of any Administrative Agent or any Investor under any other provision of this Agreement.  The Transferor’s obligations under this paragraph shall survive the Termination Date.

 

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 L/C Fees, RO Interest, 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 or its Related CP Issuer 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.

 

(a)           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

 

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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, L/C Fees, RO Interest and the Servicing Fee accrued through such day and not so previously set aside or paid, (ii) set aside the amount of any Reimbursement Obligation that shall have arisen and then remain unpaid and (iii) apply the balance of such Collections remaining after application of Collections as provided in clauses (i) and (ii) 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, L/C Fees, RO Interest and Servicing Fee with respect to the Investors in each such Related Group.  Any Collections so set aside as described in clause (ii) above shall be allocated among the Related Groups that contain L/C Issuers ratably in proportion to the outstanding Reimbursement Obligation of all L/C Issuers at such time.

 

(b)           On each Remittance Date, the Collection Agent shall, from the amounts set aside as described in Section 2.5(a), deposit to the applicable Administrative Agent’s account, for the benefit of the related Investors, an amount equal to the accrued and unpaid Discount for any Tranche Period then ending (in the case of the last day of a Tranche Period), the accrued and unpaid L/C Fees and RO Interest and Reimbursement Obligations, as applicable, and shall deposit to its own account an amount equal to the accrued and unpaid Servicing Fee.  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.

 

(c)           If on any Remittance Date, the Collection Agent shall have insufficient funds to pay all of the above amounts in full on any such Remittance Date, the Collection Agent shall distribute the funds then available in the following order and priority:

 

First, to (i) the Agent, in respect of and for application to the Administration Fee, and (ii) each Administrative Agent, ratably based on and to the extent of the amounts then owing to the Investors in each Related Group in respect of and for application to accrued and unpaid Discount, L/C Fees, RO Interest, Program Fees and Facility Fees;

 

Second, to the Administrative Agents for the L/C Issuers, ratably based on and to the extent of the Reimbursement Obligations then owing to the L/C Issuer, for application to such Reimbursement Obligations;

 

Third, to the Agent and to the Administrative Agents, ratably based on and to the extent they or any Indemnified Parties in respect of their Related Groups are due any amounts under Article VIII, for application to such amounts; and

 

Fourth, to the Collection Agent, to the extent of any Servicing Fee then owing.

 

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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 to reduce 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 reduce the Net Investment of Tranche Periods applicable to such Related Group selected by such Administrative Agent.  In the event the Net Investment is reduced to zero and the Percentage Factor continues to be greater than the Maximum Percentage Factor, the Transferor shall immediately remit to the Administrative Agents for the Related Groups that have L/C Issuers, from previously received Collections, an aggregate amount equal to the amount such that, when applied to the then unpaid Reimbursement Obligations and otherwise held to Cash-Collateralize the then outstanding Letters of Credit, will result in the Percentage Factor being less than or equal to the Maximum Percentage Factor.

 

(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 deposit into the Collection Account all Collections received on such day.  Pending such deposit, the Collection Agent shall hold such Collections in trust  for the benefit of the Investors.  In addition, 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.

 

(c)           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 (or, if the Agent has assumed exclusive control over the Collection Account, shall request the Agent to) distribute funds then available in the Collection Account in the following order and priority:

 

First, to the Agent, to reimburse the Agent for the reasonable costs and out-of-pocket expenses incurred by the Agent in connection with the administration and enforcement of this Agreement and the other Transaction Documents;

 

Second, if such day is a Remittance Date, to (i) the Agent, in respect of and for application to the Administration Fee, and (ii) each Administrative Agent, ratably based on and to the extent of the amounts then owing to the Investors in each Related Group in respect of and for application to accrued and unpaid Discount, L/C Fees, RO Interest, Program Fees and Facility Fees;

 

Third,  if such day is the last day of any month and if the Transferor, the Seller or any Affiliate of the Transferor or the Seller is not then the Collection Agent, to

 

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the Collection Agent’s account, in payment of the accrued and unpaid Servicing Fee due to the Collection Agent;

 

Fourth, to each Administrative Agent, ratably based on the RG Transferred Interest of each Related Group, for application toward (i) a reduction of the Net Investment of the Investors in such Related Group, (ii) payment of any Reimbursement Obligations then owing and (iii) to the extent of any excess, the Cash-Collateralization of any Letters of Credit then outstanding;

 

Fifth, to the Agent and each Administrative Agent, ratably based on all other Aggregate Unpaids owing to the Agent or the members of any 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 accrued and unpaid Servicing Fee.

 

The Agent shall elect, in its reasonable discretion, whether such distributions shall be made daily, weekly or monthly or at such other intervals as the Agent may (or at the direction of the Majority Investors, shall) determine to be appropriate.  Each 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.  In the case of amounts distributed to Cash-Collateralize any outstanding Letters of Credit, such amounts shall be deposited into an L/C Collateral Account for application to Reimbursement Obligations as drawings are made under the related Letters of Credit.  From and after the date any Letter of Credit shall be surrendered for cancellation or otherwise expire, all amounts then held in the L/C Collateral Account to Cash-Collateralize such Letter of Credit shall be released to the Agent for application to the Aggregate Unpaids in accordance with this Section 2.6.

 

(d)           Following the later to occur of the Termination Date and the Final Collection Date, (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.

 

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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 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 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

 

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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 in accordance with the terms set forth in the applicable Special Account Letter and Section 5.1(h) 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.  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, chargeback, allowance, any billing adjustment (including, without limitation, any cancellation of an invoice and reissuance of a new invoice relating to the same sale or service) 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

 

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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.

 

(a)           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 or becomes a Diluted Government Program 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 (determined without giving effect to any write-off with respect thereto) 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.

 

(b)           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.  All payments to be made by the Transferor or the Collection Agent hereunder or under any other Transaction Document shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff.

 

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

 

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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, 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 Agent shall maintain with a bank selected by the Agent (with the consent of each Administrative Agent) a segregated account (the “Collection Account”), in the Agent’s or the Transferor’s name and bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Agent, on behalf of the Investors; provided that the Agent may, in its discretion, elect to use the Concentration Account as the Collection Account.  The Agent shall have the right to assume exclusive control over the Collection Account.  If no Collection Agent Default, Termination Event or Potential Termination Event has occurred and is continuing, the Collection Agent shall remit daily within forty-eight hours of receipt to either the Concentration Account or an Intermediate Concentration Account all Collections received with respect to any Receivables in accordance with Section 5.3(h).  During the continuance of a Collection Agent Default or a Termination Event or a Potential Termination Event, and at all times on and after the Termination Date, 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 Collection Agent (or, if the Agent has assumed exclusive control over the Collection Account, the Agent) in Eligible Investments that will mature so that such funds will be available prior to each Remittance Date following such investment.  On each Remittance Date, such funds on deposit, together 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 Final Collection Date, 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

 

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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.                    Addition and Removal of Transferring Affiliates.          (a)(i) If (1) 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 (2) FMCH reorganizes its corporate structure such that facilities generating Receivables on the date hereof (or acquired as contemplated by clause (1)) are owned by one or more additional wholly-owned subsidiaries of FMCH, any or all of the wholly-owned subsidiaries referred to in clauses (1) and (2) may become Transferring Affiliates under this Agreement, or (ii) if any existing Transferring Affiliate wishes to be removed as a party to the Transferring Affiliate Letter, FCMH may also remove such existing Transferring Affiliate from being a Transferring Affiliate under this Agreement, in each case if the following conditions precedent have been met:

 

(x)           each Administrative Agent shall have received (A) counterparts of the Transferring Affiliate Letter duly executed by such Subsidiary or Subsidiaries and (B) the documents relating to such Subsidiary or Subsidiaries of the kind delivered by or on behalf of the Transferring Affiliates pursuant to Section 4.1, together with such other instruments, documents and agreements as any Administrative Agent may reasonably request in connection therewith; and

 

(y)           each Administrative Agent shall have given prior written consent to such addition or removal in writing (which consent shall not be unreasonably withheld or delayed), it being understood that each Administrative Agent (i) may take into account, among other things, in respect of such addition or removal: (1) the implications such action would have on the composition of and concentrations in the Receivables pool, (2) the impact such action would have on the characterization of transfers between Transferring Affiliates and the Seller or between the Seller and the Transferor, and (3) the risk that such action might give rise to commingling in any of the accounts to which Collections on the Receivables are remitted, and (ii) prior to providing such consent, shall have

 

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received such information as it shall have reasonably requested in connection with such addition or removal; and

 

(z)           after giving effect to such addition or removal, (i) the Percentage Factor shall not exceed the Maximum Percentage Factor and (ii) no Termination Event or Potential Termination Event shall then be continuing.

 

(b)           Upon the addition or removal 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.

 

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 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 (a) 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) the aggregate unpaid amount of all Reimbursement Obligations owing to the Bank Investors in such Related Group and (iv) 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 and (b) pledge to the Agent for the benefit of all L/C Issuers cash in an aggregate amount sufficient to fully Cash-Collateralize all Letters of Credit then outstanding.  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.

 

SECTION 2.17.                    Letters of Credit.

 

Upon the terms and subject to the conditions set forth herein, the Transferor may from time to time request that any specified Bank Investor to act as an L/C Issuer and issue or cause the issuance of one or more Letters of Credit for the account of the Transferor, and each such Bank Investor in its capacity as an L/C Issuer, subject to the satisfaction of the conditions precedent in Section 4.3, agrees to issue or cause the issuance of such Letters of Credit requested of it.  Each Letter of Credit shall be issued by a single Bank Investor and any obligation to honor drawings thereunder shall be exclusively the obligation of such Bank Investor, without any requirement that any Investor purchase or assume any participation therein and without any obligation on the part of any other Investor to provide funding therefor.  In requesting any Letter of Credit hereunder, due regard shall be given to maintaining to the extent practicable each

 

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Related Group’s RG Transferred Interest at a percentage level corresponding to such Related Group’s FL Ratable Share.

 

The Transferor shall cause a Transfer to be made in support of the issuance of each Letter of Credit hereunder.  Upon the issuance of a Letter of Credit, the RG Transferred Interests shall be recalculated to give effect to such issuance.

 

SECTION 2.18.                    Issuance and Modification of Letters of Credit.

 

(a)           In the case of any Letter of Credit, the Transferor and an L/C Issuer shall negotiate the terms and conditions on which such Letter of Credit shall be issued and, in connection therewith, the Transferor shall execute and deliver to such L/C Issuer a Letter of Credit Application if reasonably required by such L/C Issuer.  A Letter of Credit hereunder may be issued on not less than three Business Days’ written notice to the Agent substantially in the form of Exhibit B hereto (an “L/C Issuance Notice”), accompanied by a copy of the Letter of Credit then being proposed for issuance.  Each Letter of Credit shall be in form and substance satisfactory to the Agent.  The Agent shall, promptly following its receipt of an L/C Issuance Notice, advise the Administrative Agents of such notice.

 

(b)           Each Letter of Credit shall, among other things, provide for the payment of sight drafts or other written demands for payment when presented for honor thereunder in accordance with the terms thereof and when accompanied by the documents described therein.  Each Letter of Credit shall be subject either to the Uniform Customs and Practice for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600, and any amendments or revisions thereof adhered to by the L/C Issuer or the International Standby Practices (ISP98-International Chamber of Commerce Publication Number 590), and any amendments or revisions thereof adhered to by the L/C Issuer, as determined by the L/C Issuer.

 

(c)           During the period any Letter of Credit shall be outstanding, the Transferor shall pay to the applicable L/C Issuer such L/C Fees in respect thereof as shall have been agreed as between the Transferor and such L/C Issuer and approved by the Agent.  The Agent shall not unreasonably withhold its consent to any L/C Fees that may have been agreed between the Transferor and any L/C Issuer.

 

(d)           The Agent shall at all times during the term of this Agreement maintain the L/C Collateral Account for use at any time that the Transferor is required to Cash-Collateralize any Letter of Credit then outstanding.

 

(e)           Notwithstanding anything herein to the contrary, an L/C Issuer shall not have any obligation to issue any Letter of Credit if: (i) any of the conditions set forth in Section 4.3 shall not have been satisfied or waived on the proposed date of issuance of such Letter of Credit; (ii) any order, judgment or decree of any governmental authority or arbitrator shall by its terms purport to enjoin or restrain the such L/C Issuer from issuing such Letter of Credit, or any law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any governmental authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from the issuance of letters of credit generally or such Letter

 

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of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense that was not applicable on the Closing Date and that such L/C Issuer in good faith deems material to it; (iii) the issuance of such Letter of Credit would violate any law or one or more policies of such L/C issuer applicable to letters of credit generally; or (iv) such Letter of Credit is to be denominated in a currency other than U.S. Dollars.

 

(f)          The Transferor and an L/C Issuer may at any time agree to amend, extend, renew or otherwise modify a Letter of Credit (each, an “L/C Modification”) then outstanding, provided that  (i) written notice thereof substantially in the form of Exhibit C hereto (an “L/C Modification Notice”), accompanied by a copy of such L/C Modification, shall have been given to the Agent not less than three Business Days prior to the proposed effective date for such L/C Modification,  (ii) such Letter of Credit, after giving effect to such L/C Modification, shall continue to be in form and substance satisfactory to the Agent, and (iii) the conditions set forth in Section 4.3 shall, as of the date of such L/C Modification, have been satisfied.  The Agent shall, promptly following its receipt of an L/C Modification Notice, advise the Administrative Agents of such notice.  An L/C Issuer shall not have any obligation to amend any Letter of Credit if such L/C Issuer would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof or the beneficiary of such Letter of Credit does not accept the proposed L/C Modification to such Letter of Credit.

 

SECTION 2.19.                    Disbursements and Reimbursements under Letters of Credit.

 

(a)           Upon receipt by an L/C Issuer of any request for a drawing conforming to the terms of a Letter of Credit issued by such L/C Issuer, (i) such L/C Issuer shall promptly so advise the Transferor, the Agent and each Administrative Agent, specifying in such notice the date (the “Drawing Date”) on which such L/C Issuer anticipates honoring such request for drawing and the amount of such drawing, and (ii) such L/C Issuer shall in accordance with its customs and practices relating to letters of credit make available to the applicable beneficiary under such Letter of Credit on such Drawing Date an amount in immediately available funds equal to the amount of such drawing.  Each L/C Issuer shall at all times observe and comply with all laws, rules and applicable conventions pertaining to the issuance of, maintenance of, and honoring of presentments made under the Letters of Credit issued by it hereunder.  Notwithstanding anything herein to the contrary, neither the Agent nor any Investor other than the Bank Investor that is the L/C Issuer in respect of any Letter of Credit shall have any responsibility for, or any obligation or liability in respect of, the compliance with any such laws, rules or conventions relating to such Letter of Credit or the performance of any obligations of the L/C Issuer under or in respect of such Letter of Credit.

 

(b)           The Transferor shall reimburse the applicable L/C Issuer prior to Noon, New York time, on each Drawing Date in an amount in immediately available funds equal to the amount being drawn on such Drawing Date under any Letter of Credit issued by such L/C Issuer (the related “Reimbursement Obligation”).  In the event the Transferor shall fail to pay in full to any L/C Issuer any Reimbursement Obligation prior to Noon, New York time, on any Drawing

 

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Date, (i) such  Reimbursement Obligation shall accrue interest (“RO Interest”) from such date until repaid in full at a per annum rate equal to the Base Rate and (ii) such L/C Issuer shall promptly, and in any event by not later than 3:00 p.m. (New York time), provide notice thereof (a “Notice of Reimbursement Obligation”) to the Agent and each Administrative Agent, specifying therein the amount of such Reimbursement Obligation remaining unpaid.  RO Interest shall be calculated for actual days elapsed on the basis of a 360-day year.  Accrued and unpaid RO Interest shall be payable on each date the applicable Reimbursement Obligation is repaid, on the amount of such Reimbursement Obligation then being repaid.

 

(c)           A Notice of Reimbursement Obligation shall be deemed to constitute a Notice of Incremental Transfer (NI) issued under Section 2.2, contemplating a request for (i) a Transfer Date (the “ RO Refinancing Date”) occurring one (1) Business Day following the related Drawing Date, (ii) a Transfer Price in the amount of such Reimbursement Obligation and (iii) an initial Tranche Period that is a CP Tranche Period.  The Agent shall promptly advise each Administrative Agent of the allocation of the Transfer Price in respect of such Incremental Transfer (NI) based on the Incremental Transfer (NI) Ratable Share as of the RO Refinancing Date after giving effect to adjustments therein arising from the related Letter of Credit drawing and the anticipated reduction in Reimbursement Obligations on the RO Refinancing Date.  Notwithstanding the foregoing, the Transferor may in accordance with Section 2.2 issue a Notice of Incremental Transfer (NI) contemplating a Transfer Price that, together with cash otherwise available as of the RO Refinancing Date, shall be sufficient to repay the Reimbursement Obligation in full and a Transfer Date that is the RO Refinancing Date, and, if timely issued, such Notice of Incremental Transfer (NI) shall supersede the deemed Notice of Incremental Transfer (NI) arising by reason of the Notice of Reimbursement Obligation.  The funding by the Related Groups of any Incremental Transfer (NI) requested or deemed requested under this Section 2.19(c) shall be made in the manner described in Section 2.2, and shall be subject to the terms and conditions set forth therein and in Section 4.4.  Proceeds of such Incremental Transfer (NI) shall be remitted to the applicable L/C Issuer for application to the related Reimbursement Obligation and the Agent shall thereupon recalculate the RG Transferred Interest upon giving effect to the repayment of such Reimbursement Obligation and the funding of such Incremental Transfer (NI).  In the event an Incremental Transfer (NI) shall for any reason not occur on an RO Refinancing Date, the applicable Reimbursement Obligation shall remain outstanding until repaid in full in accordance with Section 2.5 or 2.6.

 

SECTION 2.20.                    Documentation in connection with Letters of Credit.

 

The Transferor agrees to be bound by the terms of each Letter of Credit Application and by each L/C Issuer’s interpretations of any Letter of Credit issued by such L/C Issuer for the Transferor and by such L/C Issuer’s written regulations and customary practices relating to letters of credit, though such L/C Issuer’s interpretation of such regulations and practices may be different from the Transferor’s own.  In the event of a conflict between a Letter of Credit Application and this Agreement, this Agreement shall govern.  It is understood and agreed that, except in the case of gross negligence or willful misconduct by an L/C Issuer, such L/C Issuer shall not be liable for any error, negligence and/or mistakes, whether of omission or commission, in following the Transferor’s instructions or those contained in the Letters of Credit issued by such L/C Issuer or any modifications, amendments or supplements thereto.

 

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SECTION 2.21.                    Determination to Honor Drawing Request under a Letter of Credit.

 

In determining whether to honor any request for drawing under any Letter of Credit by the beneficiary thereof, the applicable L/C Issuer shall be responsible only to determine that the documents and certificates required to be delivered under such Letter of Credit have been delivered and that they conform on their face to the requirements of such Letter of Credit and that any other drawing condition appearing on the face of such Letter of Credit has been satisfied in the manner so set forth.

 

SECTION 2.22.                    Reimbursement Obligations.

 

The obligations of the Transferor to reimburse such L/C Issuer upon a drawing under a Letter of Credit, shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Article II under all circumstances, including without regard to any of the following circumstances:

 

(i)            any set-off, counterclaim, recoupment, defense or other right which such L/C Issuer may have against the Agent, the Transferor, any Transferring Affiliate, the Administrative Agents, the Bank Investors, the Conduit Investors or any other Person for any reason whatsoever;

 

(ii)           any lack of validity or enforceability of any Letter of Credit or any set-off, counterclaim, recoupment, defense or other right which the Transferor or a Transferring Affiliate on behalf of which a Letter of Credit has been issued may have against the Agent, the Administrative Agents, the Bank Investors, the Conduit Investors or any other Person for any reason whatsoever;

 

(iii)          any claim of breach of warranty that might be made by the Transferor, any Transferring Affiliate or any L/C Issuer against the beneficiary of a Letter of Credit, or the existence of any claim, set-off, defense or other right which the Transferor, any Transferring Affiliate or any L/C Issuer may have at any time against a beneficiary, any successor beneficiary or any transferee of any Letter of Credit or the proceeds thereof (or any Persons for whom any such transferee may be acting), any L/C Issuer, the Agent, the Administrative Agents, the Bank Investors, the Conduit Investors or any other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between the Transferor or any Affiliates of the Transferor and the beneficiary for which any Letter of Credit was procured);

 

(iv)          the lack of power or authority of any signer of, or lack of validity, sufficiency, accuracy, enforceability or genuineness of, any draft, demand, instrument, certificate or other document presented under any Letter of Credit, or any such draft, demand, instrument, certificate or other document proving to be forged, fraudulent, invalid, defective or insufficient in any respect or any

 

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statement therein being untrue or inaccurate in any respect, even if the Agent, any Administrative Agent or the L/C Issuer has been notified thereof;

 

(v)           payment by an L/C Issuer under any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Letter of Credit other than as a result of the gross negligence or willful misconduct of such L/C Issuer;

 

(vi)          the solvency of, or any acts or omissions by, any beneficiary of any Letter of Credit, or any other Person having a role in any transaction or obligation relating to a Letter of Credit, or the existence, nature, quality, quantity, condition, value or other characteristic of any property or services relating to a Letter of Credit;

 

(vii)         any failure by an L/C Issuer or any of the L/C Issuer’s Affiliates to issue any Letter of Credit in the form requested by the Transferor, unless such L/C Issuer has received written notice from the Transferor of such failure within three Business Days after such L/C Issuer shall have furnished the Transferor a copy of such Letter of Credit and such error is material and no drawing has been made thereon prior to receipt of such notice;

 

(viii)        any Material Adverse Effect on the Transferor, any Transferring Affiliate or any Affiliates thereof;

 

(ix)          any breach of this Agreement or any Transaction Document by any party thereto;

 

(x)           the occurrence or continuance of an insolvency proceeding with respect to the Transferor, any Transferring Affiliate or any Affiliate thereof;

 

(xi)          the fact that a Termination Event or a Potential Termination Event shall have occurred and be continuing;

 

(xii)         the fact that this Agreement or the obligations of the Transferor or the Collection Agent hereunder shall have been terminated; and

 

(xiii)        any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.

 

SECTION 2.23.                    Indemnity in connection with Letters of Credit.

 

In addition to other amounts payable hereunder, the Transferor hereby agrees to protect, indemnify, pay and save harmless the Agent, each L/C Issuer and any of the L/C Issuer’s Affiliates that have issued a Letter of Credit from and against any and all claims, demands, liabilities, damages, penalties, interest, judgments, losses, costs, charges and expenses (including Attorney Costs) which the Agent, any Administrative Agent, any L/C Issuer or any of their respective Affiliates may incur or be subject to as a consequence, direct or indirect, of the issuance of any Letter of Credit, except to the extent resulting from (a) the gross negligence or

 

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willful misconduct of the party to be indemnified as determined by a final non-appealable judgment of a court of competent jurisdiction or (b) the wrongful dishonor by an L/C Issuer of a proper demand for payment made under any Letter of Credit, except if such dishonor resulted from any act or omission, whether rightful or wrongful, of any present or future de jure or de facto governmental authority (all such acts or omissions herein called “Governmental Acts”).

 

SECTION 2.24.                    Liability for Acts and Omissions in connection with Letters of Credit.

 

As between the Transferor, on the one hand, and the Agent, the L/C Issuers, the Administrative Agents, the Bank Investors and the Conduit Investors on the other, the Transferor assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by, the respective beneficiaries of such Letter of Credit.  In furtherance and not in limitation of the respective foregoing, none of the Agent, the L/C Issuers, the Administrative Agents, the Bank Investors or the Conduit Investors shall be responsible for: (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for an issuance of any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the applicable L/C Issuer or its Administrative Agent shall have been notified thereof); (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) the failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of the Transferor against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among the Transferor and any beneficiary of such Letter of Credit or any such transferee; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, electronic mail, cable, telegraph, telex, facsimile or otherwise, whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (viii) any consequences arising from causes beyond the control of the Agent, the L/C Issuers, the Administrative Agents, the Bank Investors and the Conduit Investors, including any Governmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the L/C Issuers’ rights or powers hereunder.  Nothing in the preceding sentence shall relieve any L/C Issuer from liability for its gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, in connection with actions or omissions described in such clauses (i) through (viii) of such sentence.  In no event shall the Agent, the L/C Issuers, the Administrative Agents, the Bank Investors or the Conduit Investors or their respective Affiliates, be liable to the Transferor or any other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit.

 

Without limiting the generality of the foregoing, the L/C Issuers and each of their respective Affiliates (i) may rely on any written communication believed in good faith by such

 

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Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by an L/C Issuer or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on any L/C Issuer or its respective Affiliates, in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and may honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.

 

In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by an L/C Issuer under or in connection with any Letter of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, shall not put such L/C Issuer under any resulting liability to the Transferor or any other Person.

 

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 Transfer Certificates, the Letter of Credit Applications and the other Transaction Documents to which the Transferor is a party are within the

 

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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, Letter of Credit Applications and the other Transaction Documents to which the Transferor is a party constitutes, 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.

 

(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.

 

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(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 treated by the Transferor or the Collection Agent as an Eligible Receivable (including, without limitation, in any Investor Report or other report delivered pursuant to Section 2.11 hereof or in the calculation of the Net Receivables Balance) is in fact an Eligible Receivable.

 

(m)                             Coverage Requirement; Amount of Receivables.  The Percentage Factor does not exceed the Maximum Percentage Factor.

 

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(n)                                 Credit and Collection Policy.  Since September 30, 2012, 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 30, 2012, 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.

 

(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 set forth on Schedule IV hereto (as such schedule may be updated from time to time in accordance with the terms hereof, the “Account Schedule”) (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)).  The Account Schedule sets forth all depository accounts and locations to which Obligors are instructed to remit payments on the Receivables.  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

 

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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, 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 80.00% 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

 

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among FME KGaA and its subsidiaries.  All of the issued and outstanding stock of each 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.

 

(aa)                          Letters of Credit.  The Maximum Aggregate Face Amount does not exceed the Facility L/C Sublimit.

 

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), Section 2.5 or Section 2.19 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 condition precedent that, 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, and the Transferor shall be deemed to have represented and warranted that such condition precedent has 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.

 

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(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.

 

(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 treated by the Transferor or the Collection Agent as an Eligible Receivable (including, without limitation, in any Investor Report or other report delivered pursuant to Section 2.11 hereof or in the calculation of the Net Receivables Balance) is in fact an Eligible Receivable.

 

(g)                                  Amount of Receivables.  The Percentage Factor does not exceed the Maximum Percentage Factor.

 

(h)                                 Credit and Collection Policy.  Since September 30, 2012, 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 30, 2012, 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.

 

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(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 the Account Schedule (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 and (ii) 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 the Effective Date.

 

(d)                                 The Certificate of Incorporation of the Collection Agent certified by the Secretary of the Collection Agent dated the Effective Date.

 

(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 Effective Date.

 

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(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 Effective 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 Effective 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 Douglas G. Kott, 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.

 

(k)                                 An opinion of Arent Fox LLP counsel to FME KGaA, FMCH, the Transferor and the Seller, covering certain bankruptcy and general corporate matters.

 

(l)                                     An executed copy of this Agreement and the Investor Fee Letter.

 

(m)                             An Amendment to the Transferring Affiliate Letter, the Receivables Purchase Agreement and the Parent Agreement, in the respective forms attached hereto as Exhibit P, duly executed and delivered by each of the parties thereto (and each of the parties hereto, by its execution of this Agreement, hereby consents to such execution and delivery).

 

(n)                                 To the extent requested by any Conduit Investor, confirmation from each Rating Agency rating the Commercial Paper of such Conduit Investor or its Related CP Issuer 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 or its Related CP Issuer.

 

(o)                                 A Certificate of the Collection Agent certifying therein (i) true and correct copies of the forms of Contracts, (ii) a true and correct copy of the Credit and Collection Policy, (iii) a true and correct copy of the Account Schedule and (iv) a true and correct copy of the FI/MAC Schedule.

 

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(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; it being understood that delivery of any Special Account Letter or control agreement in respect of any Special Accounts at KeyBank National Association, irrespective of any other covenant herein, shall not be required hereunder prior to March 4, 2013.

 

SECTION 4.2.                                                                  Conditions to Funding an Incremental Transfer (NI).   It shall be a condition precedent to the funding of each Incremental Transfer (NI) (other than an Incremental Transfer (NI) of the type contemplated in Section 4.4 below) that:

 

(a)                                 after giving effect to the payment to the Transferor of the applicable Transfer Price, (i) the sum of the Net Investment plus the Interest Component of all outstanding Related Commercial Paper plus the Letter of Credit Obligations, would not exceed the Facility Limit, and (ii) the Percentage Factor would not exceed the Maximum Percentage Factor;

 

(b)                                 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 (NI) and the payment to the Transferor of the Transfer Price related thereto;

 

(c)                                  an Investor Report shall have been delivered prior to such Incremental Transfer (NI) as required by Section 3.2 hereof; and

 

(d)                                 in the case of any Incremental Transfer (NI) 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.

 

Acceptance of the proceeds of such funding shall be deemed to be a representation and warranty by the Transferor that each of the statements made in clauses (a), (b) and (c) above is then true.

 

SECTION 4.3.                                                                  Conditions to Issuing and Modifying a Letter of Credit and an Incremental Transfer (L/C).  It shall be a condition precedent to the issuance of a Letter of Credit in connection with each Incremental Transfer (L/C) and to any L/C Modification that:

 

(a)                                 after giving effect to the issuance of such Letter of Credit or such L/C Modification, (i) the sum of the Net Investment plus the Interest Component of all outstanding Related Commercial Paper plus the Letter of Credit Obligations, would not exceed the Facility Limit, (ii) the Percentage Factor would not exceed the Maximum Percentage Factor, (iii) the Net Investment and Letter of Credit Obligations of the Bank Investor that is the L/C Issuer in respect of such Letter of Credit would not exceed such Bank Investor’s Commitment; (iv) the aggregate Net Investment and Letter of Credit Obligations of such Bank Investor’s Related Group would not exceed the applicable Related Group Limit and (v) the Maximum Aggregate Face Amount of all Letters of Credit then outstanding would not exceed the Facility L/C Sublimit;

 

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(b)                                 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 (L/C) and the issuance of the Letter of Credit related thereto or such L/C Modification, as applicable;

 

(c)                                  an Investor Report shall have been delivered prior to such Incremental Transfer (L/C) as required by Section 3.2 hereof;

 

(d)                                 (i) such Letter of Credit shall be in form and substance satisfactory to the applicable L/C Issuer and the Agent, and (ii) the Transferor shall have satisfied all conditions required by such L/C Issuer in connection with the issuance of such Letter of Credit, including the payment of all fronting, issuing and confirming fees due on or prior to the date of issuance thereof; and

 

(e)                                  on issuance or after giving effect to such L/C Modification, as applicable, the expiry date of such Letter of Credit (including any scheduled or permitted extension thereof as contemplated in such Letter of Credit) shall not be later than the earlier to occur of (i) the date that is one year after the issuance thereof and (ii) the date occurring five (5) Business Days prior to the Commitment Termination Date.

 

Acceptance of such Letter of Credit or an L/C Modification shall be deemed to be a representation and warranty by the Transferor that each of the statements made in clauses (a), (b), (c) and (e) above is then true.

 

SECTION 4.4.                                                                  Conditions to Funding an Incremental Transfer (NI) (Reimbursement Obligations).  It shall be a condition precedent to the funding of each Incremental Transfer (NI) the proceeds of which will be applied to any Reimbursement Obligation as contemplated in Section 2.19(c) that, after giving effect to such funding and the application of the proceeds thereof to such Reimbursement Obligation, (i) the sum of the Net Investment plus Interest Component of all outstanding Related Commercial Paper plus the Letter of Credit Obligations, would not exceed the Facility Limit and (ii) the Percentage Factor would not exceed the Maximum Percentage Factor.  The application of proceeds of funding to any Reimbursement Obligations shall be deemed to be a representation and warranty by the Transferor that each of the statements made in clauses (i) and (ii) above is then true.

 

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 and (ii) the Final Collection Date, 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:

 

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(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 Certification.  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.  In addition, each Investor Report delivered hereunder shall include a certification by the Transferor’s chief executive officer or senior financial officer stating that such Person has reviewed such Investor Report and the information upon which  such Investor Report was based and, based on such review, such Person has concluded that (1) the calculation of the Net Receivables Balance by the Collection Agent in such Investor Report is accurate and complete in all material respects, (2) the calculation of the aggregate unpaid amount of Reimbursement Obligations by the Collection Agent in such Investor Report is accurate and complete in all material respects and (3) 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.

 

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(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 and, on the date of any change in the debt ratings of FME KGaA, written notice of such change.

 

(vi)  Credit and Collection Policy.  On an annual basis, at least 30 days prior to the Commitment Termination Date, a complete copy of the Credit and Collection Policy then in effect, together with a summary of any material changes from the most recent Credit and Collection Policy delivered to the Administrative Agents pursuant to Section 4.1(o) or this Section 5.1(a).

 

(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 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.

 

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(x)  Appointment or Removal of Independent Director.   The decision to appoint a new director of the Transferor as the “Independent Director” for purposes of this Agreement, or to remove any such director, such notice to be issued not less than ten (10) days prior to the effective date of such appointment or removal and, in the case of an appointment, to certify that the designated Person satisfies the criteria set forth in the definition herein of “Independent Director.”

 

(xi)                              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

 

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Transferor will, and will cause each Originating Entity to, give each Administrative Agent notice of any 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.

 

(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

 

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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 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 and by the Transferring Affiliate Letter, 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 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 maintain its Certificate of Incorporation and By-Laws in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its Certificate of Incorporation or By-Laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 7.1(r) of this Agreement; and (2) its Certificate of Incorporation, at all times that this Agreement is in effect, provides for not

 

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less than ten (10) days’ prior written notice to each Administrative Agent of the removal, replacement or appointment of any director that is to serve as an Independent Director for purposes of this Agreement and the condition precedent to giving effect to any such replacement or appointment that each Administrative Agent shall have determined in its reasonable judgment acting in good faith that the designated Person satisfies the criteria set forth in the definition herein of “Independent Director”.  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 Effective Date 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, 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 the Transferring Affiliate Letter.  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 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.

 

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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 and (ii) the Final Collection Date, 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:

 

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(i)  add or terminate any bank as a Special Account Bank from those listed in the Account Schedule, 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 an updated Account Schedule reflecting such addition, and (B) termination of any Special Account Bank at any time following delivery to each Administrative Agent of written notice of such termination, an updated Account Schedule reflecting 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 the Account Schedule, 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 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 the Account Schedule, 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 an updated Account Schedule reflecting such addition, and (B) termination of any Designated Account Agent at any time following delivery to each Administrative Agent of written notice of such termination, an updated Account Schedule reflecting such termination and evidence satisfactory to each Administrative Agent that either an Originating Entity or a new Designated Account

 

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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 or any

 

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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.

 

(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 $12,500 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 and (ii) the Final Collection Date, 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.

 

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(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 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.

 

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(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 and (ii) the Final Collection Date, 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 (acting at the direction of the Majority Investors) 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

 

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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.

 

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

 

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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, with the prior written consent of each Administrative Agent, may revise the percentage used to calculate the Servicing Fee to such other percentage as may be approved in writing by each Administrative Agent, provided, however, that, unless otherwise agreed in writing by each Administrative Agent, at any time after the Percentage Factor equals or exceeds 100%, 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 June 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.

 

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,

 

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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 or in any of the other Transaction Documents or in any certificate or report delivered by it

 

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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” 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 reasonable judgment of any Administrative 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 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 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.

 

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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 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,

 

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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 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, 2011 or any other Material Adverse Effect shall have occurred; or

 

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(k)                                 (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 or (ii) the sum of the portion of the Net Investment held by the Investors in any Related Group and the Letter of Credit Obligations owing to the Bank Investor in such Related Group shall exceed the applicable Related Group Limit at any time; or

 

(l)                                     the average Dilution Ratio for any three (3) consecutive calendar months exceeds 9.5%; or

 

(m)                             the average Loss-to-Liquidation Ratio for any three (3) consecutive calendar months exceeds 6.0%; or

 

(n)                                 the average Default Ratio for any three (3) consecutive calendar months exceeds 3.50%; or

 

(o)                                 a default or breach shall occur under the Parent Agreement (including, without limitation, a default or breach with respect to any financial covenant or other undertaking set forth therein); 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

 

(p)                                 (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 20.00% of the total Voting Stock of FMCH); or (iv) a Change of Control shall occur; or

 

(q)                                 FME KGaA’s long-term public senior debt securities shall be rated lower than B+ by Standard & Poor’s or B1 by Moody’s, or neither Standard & Poor’s nor Moody’s shall rate such securities; or

 

(r)                                    Any Person shall be appointed as, or removed as, an Independent Director of the Transferor without prior notice thereof having been given to each Administrative Agent in accordance with Section 5.1(a)(x) or without the written acknowledgement by each Administrative Agent that such Person conforms, to the satisfaction of each Administrative Agent, with the criteria set forth in the definition herein of “Independent Director”.

 

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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(k)(ii) or 7.1(p) 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 occurrence and during the continuation of a Termination Event or the declaration or automatic occurrence of the Termination Date pursuant to Section 7.2(a), the Base Rate plus 2.50% shall be the Tranche Rate applicable to the Net Investment for all existing and future Tranches and shall be the rate at which RO Interest accrues.

 

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 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,

 

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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;

 

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(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;

 

(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

 

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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;

 

(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; or

 

(xxi)                       without duplication of amounts already payable pursuant to Section 2.9, any cancellation or voiding of a Receivable or other Contractual Adjustment.

 

SECTION 8.2.                                                                  Indemnity for Taxes, Reserves and Expenses.  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, assessment, fee, insurance charge, 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

 

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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 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.

 

The term “Bank Regulatory Guideline” shall mean (i) the adoption after the date hereof of any applicable law, rule, guideline or regulation (including any applicable law, rule, guideline or regulation regarding capital adequacy or liquidity coverage) or any change therein after the date hereof, (ii) any change after the date hereof in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency; provided that for purposes of this definition, (x) the United States bank regulatory rule titled Risk-Based Capital Guidelines; Capital Adequacy Guidelines; Capital Maintenance: Regulatory Capital; Impact of Modification to Generally Accepted Accounting Principles; Consolidation of Asset-Backed Commercial Paper Programs; and Other Related Issues, adopted on December 15, 2009, (y) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder, issued in connection therewith or in implementation thereof, and (z) all requests, rules, guidelines and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, shall in each case be deemed to be a “Bank Regulatory Guideline”, regardless of the date enacted, adopted, issued or implemented.

 

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(a)                                 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).

 

(b)                                 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.

 

(c)                                  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.

 

(d)                                 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 (A) 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

 

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accrued through the date of payment) and (B) if any Bank Investor in such Related Group shall have issued any Letters of Credit hereunder that then remain outstanding (“Designated Letters of Credit”), providing to such Bank Investor a letter of credit in form and substance satisfactory to such Bank Investor issued by a commercial bank having a credit rating not less than the credit rating of such Bank Investor, which letter of credit shall be in a stated amount equal to the aggregate stated amount of the Designated Letters of Credit issued by such Bank Investor and shall permit drawings thereunder by such Bank Investor at the time of, and in the amount of, each drawing under any Designated Letter of Credit.  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 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 and (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.

 

SECTION 8.3.                                                                  Taxes.   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

 

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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.

 

(a)                                 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 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

 

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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.   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’, rating agencies’ 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”).

 

(a)                                 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

 

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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.

 

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

 

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(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 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 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

 

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(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, any Letter of Credit or any other Transaction Document or any action taken or omitted by the Agent 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 determination of the Agent, 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.  Solely for purposes of this Section 9.4, (i) the Administrative Agent for Salisbury shall be deemed to be a Bank Investor having a Commitment equal to the Commitment of Salisbury and (ii) Salisbury shall not be deemed to be a Bank Investor.

 

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 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

 

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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 Liberty Street.

 

SECTION 9.7.                                                                  Bank Commitment; Assignment to Bank Investors.

 

(a)                                 Assignments by Conduit Investors.  A Conduit Investor may, at any time, assign all or any 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 and under the other Transaction Documents to any Bank Investor, Administrative Agent, Liquidity Provider or Credit Support Provider or any of their respective Affiliates without the consent of any other party.  In addition to and not in limitation of any other provision hereof which permits assignments by a Conduit Investor, any Conduit Investor may, from time to time, in one transaction or a series of transactions, 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 and under the other Transaction Documents to another special purpose company (an “SPC Assignee”) which (i) is administered by such Conduit Investor’s Administrative Agent or by any Affiliate of such Administrative Agent and (ii) has activities generally similar to such Conduit Investor.  The Administrative Agent for the assigning Conduit Investor shall notify the Transferor and the Agent of such assignment promptly following the effective date thereof.  Upon and to the extent of such assignment to an SPC Assignee, (i) the SPC Assignee shall be the owner of the assigned portion of the Net Investment, (ii) the relevant Administrative Agent will act as Administrative Agent for the SPC Assignee as well as for the assigning Conduit Investor, with all corresponding rights and powers, express or implied, granted herein to such Administrative Agent, (iii) the SPC Assignee shall be a Conduit Investor hereunder and its credit and liquidity support providers and other related parties shall have the benefit of all the rights and protections provided to the assigning Conduit Investor and its credit and liquidity support providers and other related parties, respectively, herein and in the other Transaction Documents (including, without limitation, any limitation on recourse against the assigning Conduit Investor or related parties, any agreement not to file or join in the filing of a petition to commence an insolvency proceeding against the assigning Conduit Investor, and the right to assign to another SPC Assignee as provided in this paragraph), (iv) the SPC Assignee shall assume all obligations, if any, of the assigning Conduit Investor under and in connection

 

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with this Agreement, and the assigning Conduit Investor shall be released from such obligations, in each case to the extent of such assignment, and the obligations of the assigning Conduit Investor (if any) and the SPC Assignee shall be several and not joint, (v) all distributions in respect of Net Investment or Discount shall be made to the assigning Conduit Investor and the SPC Assignee on a pro rata basis according to their respective interests (or in the case of Discount, the accrued amounts thereof), (vi) the rate used to calculate the Discount with respect to the portions of the Net Investment owned by the SPC Assignee and funded with commercial paper notes issued by the SPC Assignee from time to time shall be determined in the manner set forth in the definition of the “CP Rate” on the basis of the discount or interest rates applicable to commercial paper issued by the SPC Assignee (rather than the assigning Conduit Investor), (vii) in the event that the relevant Related Group, by reason of such assignment, shall contain more than one Conduit Investor, then each reference in this Agreement to “Conduit Investor” shall mean and refer to, in the case of such Related Group, each such Conduit Investor individually or all of such Conduit Investors collectively, as the context may require, (viii) any reference in this Agreement or the other Transaction Documents to the assigning Conduit Investor shall mean and be a reference to such assigning Conduit Investor and/or the relevant SPC Assignee, as the context may require, (ix) the defined terms and other terms and provisions of this Agreement and the other Transaction Documents shall be interpreted in accordance with the foregoing, and (x) if requested by the relevant Administrative Agent, the parties will execute and deliver such further agreements and documents and take such other actions as the relevant Administrative Agent may reasonably request to evidence and give effect to the foregoing.

 

(b)                                 Assignments by Bank Investors.  No Bank Investor may assign all or a portion of its interests in the Net Investment, any Letter of Credit, 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 (it being understood and agreed that no consent from the Transferor or any other Person shall be required in connection with any assignment by a Bank 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) and to

 

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issue Letters of Credit under 2.18, in each case 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.  Unless otherwise agreed by the Administrative Agent for the applicable Related Group, 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 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 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 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

 

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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 or its Related CP Issuer.

 

(d)                                 Transferor’s Obligation to Pay Certain Amounts.  The Transferor shall pay to the Administrative Agent for a Conduit Investor, in connection with any assignment by such Conduit Investor to its related Liquidity Providers, 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 and any unpaid amount in respect of any Reimbursement Obligations) owing to such Conduit Investor.

 

(e)                                  [Reserved].

 

(f)                                   [Reserved].

 

(g)                                  Downgrade of Bank Investor.  If (at any time prior to any assignment by a Conduit Investor to the Bank Investors in its Related Group as contemplated pursuant to this Section 9.7) the short term debt rating of any Bank Investor in such Related Group shall be “A-2” or “P-2” from Standard & Poor’s or Moody’s, respectively, with negative credit implications, such Bank Investor, upon request of the applicable Administrative Agent, shall, within 30 days of such request, assign its rights and obligations hereunder to another financial institution (which institution’s short term debt shall be rated at least “A-2” and “P-2” from Standard & Poor’s and Moody’s, respectively, and which shall not be so rated with negative credit implications).  If the short term debt rating of a Bank Investor in a Related Group shall be “A-3” or “P-3”, or lower, from Standard & Poor’s or Moody’s, respectively (or such rating shall have been withdrawn by Standard & Poor’s or Moody’s), such Bank Investor, upon request of the applicable Administrative Agent, shall, within five (5) Business Days of such request, assign its rights and obligations hereunder to another financial institution (which institution’s short term debt shall be rated at least “A-2” and “P-2” from Standard & Poor’s and Moody’s, respectively, and which shall not be so rated with negative credit implications).  In either such case, if any such Bank Investor in a Related Group shall not have assigned its rights and obligations under this Agreement within the applicable time period described above, the related Conduit Investor shall have the right to require such Bank Investor to accept the assignment of such Bank Investor’s Pro Rata Share of the Net Investment; such assignment shall occur in accordance with the applicable provisions of this Section 9.7.  Such Bank Investor shall be obligated to pay to such Conduit Investor, in connection with such assignment, in addition to the Pro Rata Share of the Net Investment, an amount equal to the Interest Component of 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

 

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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.  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 Investors 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 amount or payment of Net Investment, Reimbursement Obligations, 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 any party from its obligations under the Parent Agreement 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

 

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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.

 

(a)                                 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, EtcNeither 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), 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 (including, in the case of the Administrative Agent for Salisbury, for any amounts payable by such Administrative Agent by

 

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reason of the last sentence of Section 9.4), 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 and, with respect to any L/C Issuer in such Related Group, in any amounts paid in respect of Reimbursement Obligations, in each case 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

 

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respective related pro rata interests in the Net Investment and, with respect to any L/C Issuer in such Related Group, in any amounts paid in respect of Reimbursement Obligations, not later than the following Business Day.

 

ARTICLE X

 

MISCELLANEOUS

 

SECTION 10.1.                                                           Term of Agreement.  This Agreement shall terminate on the date following the Termination Date on which the Final Collection Date shall occur; 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, Section 9.4 and Section 9.10, 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; provided that no Administrative Agent for a Conduit Investor shall consent to any such amendment or waiver unless each applicable Rating Agency shall have either (i) received prior notice of such amendment or waiver and, in the case of any material amendment or waiver, confirmed that such amendment or waiver will not result in the reduction or withdrawal of the then current rating of the Commercial Paper issued by such Conduit Investor or (ii) advised such Conduit Investor or its related Administrative Agent that amendments or waivers may be effected without the need for any further confirmation by such Rating Agency.

 

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

 

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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)

920 Winter Street

Waltham, MA  02451

Telephone:  (781) 699-2668

Telecopy:   (781) 699-9756

Attn:  Mark Fawcett

Payment Information:

Chase Manhattan Bank, N.A.

ABA 021-000-021

Account 323-0-76823

 

If to the Collection Agent:

 

National Medical Care, Inc.

920 Winter Street

Waltham, MA  02451

Telephone:  (781) 699-2668

Telecopy:   (781) 699-9756

Attn:  Mark Fawcett

 

If to the Agent:

 

The Bank of Nova Scotia

711 Louisiana Street

Suite 1400

Houston, TX 77002

Attention:  John Frazell

Telephone:  (713) 759-3426

Fax:  (713) 752-2425

E-mail:  john.frazell@scotiabank.com

 

with a copy to:

 

The Bank of Nova Scotia
One Liberty Plaza
New York, NY 10006
Attention:  Darren Ward

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Tel:  (212) 225-5410
Fax:  (212) 225-6465
Email:  Darren.Ward@scotiabank.com

 

If to Liberty Street:

 

c/o Global Securitization Services, LLC

114 West 47th Street, Suite 2310

New York, New York 10036

Attention:  Jill A. Russo

Telephone:  (212) 295-2742

Telecopy:    (212) 302-8767

 

If to the Administrative Agent for Liberty Street:

 

The Bank of Nova Scotia

711 Louisiana Street

Suite 1400

Houston, TX 77002

Attention:  John Frazell

Telephone:  (713) 759-3426

Fax:  (713) 752-2425

E-mail:  john.frazell@scotiabank.com

 

with a copy to:

 

The Bank of Nova Scotia
One Liberty Plaza
New York, NY 10006
Attention:  Darren Ward
Tel:  (212) 225-5264
Fax:  (212) 225-5274
Email:  Darren.Ward@scotiabank.com

 

with a copy to:

 

The Bank of Nova Scotia
One Liberty Plaza
New York, NY 10006
Attention:  Vilma Pindling
Tel:  (212) 225-5410
Fax:  (212) 225-6465
Email:  Vilma.Pindling@scotiabank.com

 

If to Thunder Bay:

 

c/o Global Securitization Services, LLC

 

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68 South Service Road, Suite 120

Melville, New York 11747

Attention: Kevin Burns

Tel: (631) 587-4700

Fax: (212) 302-8767

Email: conduitadmin@gssnyc.com

 

with a copy to:

 

c/o Royal Bank of Canada

Two Little Falls Centre

2751 Centerville Road, Suite 212

Wilmington, DE 19808

Attn: Securitization Finance

Tel: (302) 892-5901

Fax: (302) 892-5900

E-mail: conduit.management@rbccm.com

 

If to the Administrative Agent for Thunder Bay:

 

Royal Bank of Canada

Three World Financial Center

200 Vesey Street

New York, NY 10281-8098

Attn:  Securitization Finance

Telephone: (212) 428-6537

Fax: (212) 428-2304

E-mail: conduit.management@rbccm.com

 

With a copy to:

 

c/o Royal Bank of Canada

Two Little Falls Centre

2751 Centerville Road, Suite 212

Wilmington, DE 19808

Attn: Securitization Finance

Tel: (302) 892-5901

Fax: (302) 892-5900

E-mail: conduit.management@rbccm.com

 

If to Salisbury or its Administrative Agent:

 

c/o Barclays Capital
745 7th Avenue, 5th Floor
New York, NY, 10019

Attention:  John McCarthy
Tel:  (212) 526-7161

 

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E-mail:  john.j.mccarthy@barclays.com

 

Notices of Incremental Transfers, notices or reductions to the Net Investment and monthly Investor Reports should be sent to barcapconduitops@barclays.com and asgreports@barclays.com

 

If to Atlantic Securitization or its Administrative Agent:

 

c/o Credit Agricole Corporate and Investment Bank, New York

1301 Avenue of the Americas

New York, New York 10019

Attention: Roman Burt

Telephone: (212) 261-3996

Fax: (212) 459-3258
E-mail: roman.burt@ca-cib.com

 

with a copy to:

 

Credit Agricole Corporate and Investment Bank, New York

1301 Avenue of the Americas

New York, New York 10019

Attention:  Deric Bradford
Telephone: (212) 251-3470
Fax: (212) 459-3258
E-mail: deric.bradford@ca-cib.com

 

If to Market Street Funding LLC or its Administrative Agent:

 

Market Street Funding LLC

c/o AMACAR Group, L.L.C.

6525 Morrison Blvd., Suite 318

Charlotte, North Carolina  28211

Attention:  Cynthia Reames

Telephone:  (704) 365-0569

Fax:  (704) 365-1362

Email: careames@amacar.com

 

with a copy to:

 

PNC Bank, National Association

P3-P3PP-04-1

225 Fifth Avenue

Pittsburgh, Pennsylvania  15222

Attention:  Joy Damico

Telephone:  (412) 705-1225

Fax:  (412) 762-2220

Email:  joy.damico@pnc.com

 

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If to Victory Receivables Corporation or its Administrative Agent:

 

Victory Receivables Corporation

c/o Global Securitization Services, LLC

68 South Service Road, Suite 120

Melville, New York 11747

Attention: David DeAngelis

Tel: (631) 930-7216

Fax: (212) 302-5151

Email: ddeangelis@gssnyc.com

 

With a copy to:

 

The Bank of Tokyo-Mitsubishi UFJ, Ltd.

Harborside Financial Center, 500 Plaza III

Jersey City, NJ 07311

Attention:  John F. Donoghue, Jr.

Credit Control Dept. – Securitization Unit

Telephone: (201) 413-8138

E-mail:  jdonoghue@us.mufg.jp

 

and

 

The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch

1251 Avenue of the Americas

New York, NY 10020

Attention: Luna Mills

Telephone:  (212) 782-4537

Fax: (212) 782-6448

Email: lmills@us.mufg.jp

 

Notices of Incremental Transfers, notices or reductions to the Net Investment and monthly Investor Reports should be sent to securitization_reporting@us.mufg.jp

 

If to the Bank Investors, including in their capacities as L/C Issuers, 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.  EACH OF THE TRANSFEROR AND THE COLLECTION AGENT HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT

 

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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 1675 Broadway, New York, New York 10019 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.  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

 

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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.

 

(a)                                 Each of the Transferor and the Collection Agent hereby agrees and consents to the assignment by any Conduit Investor from time to time of all or any part of its rights under, interest in and title to this Agreement and the Transferred Interest to any Liquidity Provider or Credit Support 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.

 

(b)                                 Any Investor may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Investor, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment  shall release such Investor from any of its obligations hereunder or substitute any such pledgee or assignee for such Investor as a party hereto.

 

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 or its Related CP Issuer, 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

 

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except (i) as required by federal or state securities laws, (ii) its auditors and attorneys, employees, equity investors or financial advisors (other than any commercial bank) and any nationally recognized rating agency (including in compliance with Rule 17g-5 under the Securities Exchange Act of 1934 or to any other rating agency in compliance with any such similar rule or regulation in any relevant jurisdiction) 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, any Liquidity Provider, any Person holding an equity interest in a Conduit Investor, any of their respective successors and permitted assigns and any of their respective Affiliates, subject to the terms of this Section 10.8(c), (B) any such Person’s directors, employees, 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 or its Related CP Issuer, it will not, and the Transferor will cause each Parent Group Member to not, institute against, or encourage, assist or

 

114



 

join any other Person in instituting against, such Conduit Investor or its Related CP Issuer 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 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 or its Related CP Issuer’s 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 and its Related CP Issuer’s 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.  For purposes of the foregoing, the term “Conduit Investor” shall include Salisbury in its capacity as a Bank Investor.  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 intention of the parties expressed in this Section 10.11, any sale or contribution by the Transferor to the Agent, on behalf of the Investors, of the Transferred Interest hereunder shall be characterized as a secured loan and not as a sale or such sale shall for any reason be ineffective or unenforceable (any of the foregoing being a “Recharacterization”), then this Agreement shall constitute a security agreement under applicable law.  In order to further protect the interests of the Agent and the Investors, the Transferor hereby grants to the Agent, on behalf of the Investors, a first

 

115



 

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 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. The Transferor hereby assigns to the Agent, on behalf of the Investors, all of its rights and remedies under the Receivables Purchase Agreement and the Transferring Affiliate Letter (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.  In the case of any Recharacterization, the Transferor and the Agent, on behalf of the Investors, represents and warrants that each remittance of Collections by the Transferor to the Agent hereunder will have been (i) in payment of a debt incurred by the Transferor in the ordinary course of business or financial affairs of the Transferor and the Agent and (ii) made in the ordinary course of business or financial affairs of the Transferor and the Agent.

 

SECTION 10.12.                                                    Perfection Representations.  The Perfection Representations shall be a part of the Agreement for all purposes.  The Perfection Representations shall survive termination of the Agreement.

 

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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Transfer and Administration Agreement as of the date first written above.

 

 

NMC FUNDING CORPORATION,

 

as Transferor

 

 

 

 

 

By:

/s/ Mark Fawcett

 

Name:

Mark Fawcett

 

Title:

Vice President & Treasurer

 

 

 

 

 

 

NATIONAL MEDICAL CARE, INC., as

 

Collection Agent

 

 

 

 

 

By:

/s/ Mark Fawcett

 

Name:

Mark Fawcett

 

Title:

Vice President & Treasurer

 

117



 

 

THE BANK OF NOVA SCOTIA, as Agent, as an Administrative Agent and as a Bank Investor

 

 

 

 

 

By:

/s/ John Frazell

 

Name:

John Frazell

 

Title:

Director

 

 

 

 

 

 

LIBERTY STREET FUNDING LLC,

 

as a Conduit Investor

 

 

 

 

 

By:

/s/ Jill A. Russo

 

Name:

Jill A. Russo

 

Title:

Vice President

 

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CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, NEW YORK, as an Administrative Agent and as a Bank Investor

 

 

 

 

 

By:

/s/ Kostantina Kourmpetis

 

Name:

Kostantina Kourmpetis

 

Title:

Managing Director

 

 

 

 

 

By:

/s/ Richard McBride

 

Name:

Richard McBride

 

Title:

Director

 

 

 

 

 

 

ATLANTIC ASSET SECURITIZATION LLC,

 

as a Conduit Investor

 

 

 

 

 

By: Credit Agricole Corporate and Investment Bank, New York, its Attorney-in-Fact

 

 

 

 

 

By:

/s/ Kostantina Kourmpetis

 

Name:

Kostantina Kourmpetis

 

Title:

Managing Director

 

 

 

 

 

By:

/s/ Richard McBride

 

Name:

Richard McBride

 

Title:

Director

 

119



 

 

BARCLAYS BANK PLC, as a Bank Investor (solely in the capacity as an L/C Issuer) and as an Administrative Agent

 

 

 

 

 

By:

/s/ John McCarthy

 

Name:

John McCarthy

 

Title:

Director

 

 

 

 

 

SALISBURY RECEIVABLES COMPANY, LLC,

 

as a Conduit Investor and as a Bank Investor (for all purposes other than in the capacity of an L/C Issuer)

 

 

 

 

 

By:

/s/ Janette Lieu

 

Name:

Janette Lieu

 

Title:

Director

 

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ROYAL BANK OF CANADA, as an Administrative Agent and as a Bank Investor

 

 

 

 

 

By:

/s/ Janine D. Marsini

 

Name:

Janine D. Marsini

 

Title:

Authorized Signatory

 

 

 

 

 

By:

/s/ Veronica L. Gallagher

 

Name:

Veronica L. Gallagher

 

Title:

Authorized Signatory

 

 

 

 

 

THUNDER BAY FUNDING, LLC,

 

as a Conduit Investor

 

 

 

 

 

By:

/s/ Janine D. Marsini

 

Name:

Janine D. Marsini

 

Title:

Authorized Signatory

 

121



 

 

PNC BANK, NATIONAL ASSOCIATION, as an Administrative Agent and as a Bank Investor

 

 

 

 

 

By:

/s/ William Falcon

 

Name:

William Falcon

 

Title:

Vice President

 

 

 

 

 

By:

/s/ Mark Falcione

 

Name:

Mark Falcione

 

Title:

Senior Vice President

 

 

 

 

 

MARKET STREET FUNDING LLC,

 

as a Conduit Investor

 

 

 

 

 

By:

/s/ Doris J. Hearn

 

Name:

Doris J. Hearn

 

Title:

Vice President

 

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THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, as an Administrative Agent

 

 

 

 

 

By:

/s/ Luna Mills

 

Name:

Luna Mills

 

Title:

Director

 

 

 

 

 

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, as a Bank Investor

 

 

 

 

 

By:

/s/ Scott O’Connell

 

Name:

Scott O’Connell

 

Title:

Vice President

 

 

 

 

 

VICTORY RECEIVABLES CORPORATION,

 

as a Conduit Investor

 

 

 

 

 

By:

/s/ David V. DeAngelis

 

Name:

David V. DeAngelis

 

Title:

Vice President

 

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SCHEDULE I

to

SIXTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

 

NOTICE ADDRESSES FOR BANK INVESTORS

 

THE BANK OF NOVA SCOTIA
Scotia Capital

711 Louisiana, Suite 1400

Houston, Texas 77002
Attention:  John Frazell

Tel:   (713) 759-3426

Fax:   (713) 752-2425

Main: (713) 759-0900

E-mail: john.frazell@scotiabank.com

 

with a copy to:

 

THE BANK OF NOVA SCOTIA

One Liberty Plaza, 26th Floor
New York, NY 10006
Attention:  Darren Ward
Tel:  (212) 225-5264
Fax:  (212) 225-5274
E-mail: darren.ward@scotiabank.com

 

and

 

THE BANK OF NOVA SCOTIA
One Liberty Plaza, 26
th Floor
New York, NY 10006
Attention:  Vilma Pindling
Tel:  (212) 225-5410
Fax:  (212) 225-6465
E-mail: vilma.pidling@scotiabank.com

 

SALISBURY RECEIVABLES COMPANY, LLC

c/o Barclays Capital
745 7th Avenue, 5th Floor
New York, NY, 10019

Attention:  John McCarthy
Tel:  (212) 526-7161

E-mail:  john.j.mccarthy@barcap.com

 

124


 

Notices of Incremental Transfers, notices or reductions to the Net Investment and monthly Investor Reports should be sent to barcapconduits@barclays.com and asgreports@barclays.com

 

Address for notices related to Letters of Credit:

 

BARCLAYS BANK PLC

200 Park Avenue

New York, New York 10166

Attn: Letters of Credit/Celeste-Monique Lindsey/Michaelle Hsiao/Dawn Townsend

E-mail: xraletterofcredit@barclays.com; john.j.mccarthy@barclays.com; janette.lieu@barclays.com; asgreports@barclays.com; and barcapconduitops@barclays.com

 

ROYAL BANK OF CANADA

Three World Financial Center

200 Vesey Street

New York, New York 10281-8098

Attention:  Conduit Funding

Tel: (212) 428-6291

Fax: (212) 428-2304

E-mail: conduit.funding@rbccm.com

 

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, NEW YORK

1301 Avenue of the Americas

New York, New York 10019

Attention: Roman Burt

Telephone: (212) 261-3996

Fax: (917) 849-5584
E-mail: roman.burt@ca-cib.com

 

with a copy to:

 

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, NEW YORK

1301 Avenue of the Americas

New York, New York 10019

Attention:  Deric Bradford
Telephone: (212) 251-3470
Fax: (212) 459-3258
E-mail: deric.bradford@ca-cib.com

 

PNC BANK, NATIONAL ASSOCIATION

P3-P3PP-04-1

 

125



 

225 Fifth Avenue

Pittsburgh, Pennsylvania  15222

Attention:  Joy Damico

Telephone:  (412) 705-1225

Fax:  (412) 762-2220

Email:  joy.damico@pnc.com

 

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH

Investment Banking Division for the Americas

1251 Avenue of the Americas

New York, NY 10020

Attention: Luna Mills

Telephone:  (212) 782-4537

Fax: (212) 782-6448

Email: lmills@us.mufg.jp

 

With a copy to:

 

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH

Harborside Financial Center, 500 Plaza III

Jersey City, NJ 07311

Attention:  John F. Donoghue, Jr.

Credit Control Dept. — Securitization Unit

Telephone: (201) 413-8138

E-mail:  jdonoghue@us.mufg.jp

 

Notices of Incremental Transfers, notices or reductions to the Net Investment and monthly Investor Reports should be sent to securitization_reporting@us.mufg.jp

 

126



 

SCHEDULE II

to

SIXTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

 

COMMITMENTS OF BANK INVESTORS

 

Bank Investor

 

Commitment

 

 

 

 

 

The Bank of Nova Scotia

 

$

150,000,000.00

 

 

 

 

 

Credit Agricole Corporate and Investment Bank, New York

 

$

140,000,000.00

 

 

 

 

 

Salisbury Receivables Company, LLC

 

$

140,000,000.00

 

 

 

 

 

Royal Bank of Canada

 

$

140,000,000.00

 

 

 

 

 

PNC Bank, National Association

 

$

115,000,000.00

 

 

 

 

 

The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch

 

$

115,000,000.00

 

 

 

 

 

TOTAL

 

$

800,000,000.00

 

 

RELATED GROUP LIMITS

 

Conduit Investor

 

Related Group Limit

 

 

 

 

 

Liberty Street Funding LLC

 

$

150,000,000.00

 

 

 

 

 

Atlantic Asset Securitization LLC

 

$

140,000,000.00