EXHIBIT 10.6
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SECOND AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
among
ENTERPRISE FUNDING CORPORATION
COMPASS US ACQUISITION, LLC
GIRO MULTI-FUNDING CORPORATION,
as Conduit Investors
NMC FUNDING CORPORATION,
as Transferor
NATIONAL MEDICAL CARE, INC.,
as Collection Agent
THE FINANCIAL INSTITUTIONS PARTIES HERETO,
as Class A Bank Investors
THE FINANCIAL INSTITUTIONS PARTIES HERETO,
as Class B Investors
WESTLB AG, NEW YORK BRANCH,
as an Administrative Agent
BAYERISCHE LANDESBANK, NEW YORK BRANCH,
as an Administrative Agent
and
BANK OF AMERICA, N.A.,
as an Administrative Agent and as Agent
Dated as of September 24, 2002
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Defined Terms.........................................1
SECTION 1.2. Other Terms..................................................32
SECTION 1.3. Computation of Time Periods..................................32
SECTION 1.4. Amendment and Restatement....................................32
ARTICLE II
PURCHASE AND SETTLEMENTS
SECTION 2.1. Facility.....................................................32
SECTION 2.2. Transfers; Certificates; Eligible Receivables (a)
Incremental Transfers........................................32
SECTION 2.3. Selection of Tranche Periods and Tranche Rates...............37
SECTION 2.4. Discount, Fees and Other Costs and Expenses..................39
SECTION 2.5. Non-Liquidation Settlement and Reinvestment Procedures.......40
SECTION 2.6. Liquidation Settlement Procedures............................40
SECTION 2.7. Fees.........................................................42
SECTION 2.8. Protection of Ownership Interest of the Investors;
Special Accounts and Concentration Account...................42
SECTION 2.9. Deemed Collections; Application of Payments..................44
SECTION 2.10. Payments and Computations, Etc...............................45
SECTION 2.11. Reports......................................................45
SECTION 2.12. Collection Account...........................................45
SECTION 2.13. Sharing of Payments, Etc.....................................46
SECTION 2.14. Right of Setoff..............................................46
SECTION 2.15. Additional Transferring Affiliates...........................47
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of the Transferor.............47
SECTION 3.2. Representations and Warranties of the Collection Agent.......53
i
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.1. Conditions to Closing......................................54
ARTICLE V
COVENANTS
SECTION 5.1. Affirmative Covenants of Transferor........................56
SECTION 5.2. Negative Covenants of the Transferor.......................63
SECTION 5.3. Affirmative Covenants of the Collection Agent..............66
SECTION 5.4. Negative Covenants of the Collection Agent.................68
ARTICLE VI
ADMINISTRATION AND COLLECTION
SECTION 6.1. Appointment of Collection Agent............................69
SECTION 6.2. Duties of Collection Agent.................................69
SECTION 6.3. Right After Designation of New Collection Agent............71
SECTION 6.4. Collection Agent Default...................................72
SECTION 6.5. Responsibilities of the Transferor.........................73
ARTICLE VII
TERMINATION EVENTS
SECTION 7.1. Termination Events.........................................73
SECTION 7.2. Termination................................................77
ARTICLE VIII
INDEMNIFICATION; EXPENSES; RELATED MATTERS
SECTION 8.1. Indemnities by the Transferor..............................77
SECTION 8.2. Indemnity for Taxes, Reserves and Expenses.................80
SECTION 8.3. Taxes......................................................82
SECTION 8.4. Other Costs, Expenses and Related Matters..................84
SECTION 8.5. Reconveyance Under Certain Circumstances...................85
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ARTICLE IX
THE AGENT; BANK COMMITMENT; THE ADMINISTRATIVE AGENTS
SECTION 9.1. Authorization and Action.....................................85
SECTION 9.2. Agent's Reliance, Etc........................................87
SECTION 9.3. Credit Decision..............................................87
SECTION 9.4. Indemnification of the Agent.................................87
SECTION 9.5. Successor Agent..............................................88
SECTION 9.6. Payments by the Agent........................................88
SECTION 9.7. Bank Commitment; Assignment to Class A Bank Investors........89
SECTION 9.8. Appointment of Administrative Agents.........................92
SECTION 9.9. Administrative Agent's Reliance, Etc.........................94
SECTION 9.10. Indemnification of the Administrative Agents.................94
SECTION 9.11. Successor Administrative Agents..............................95
SECTION 9.12. Payments by the Administrative Agents........................95
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Term of Agreement............................................96
SECTION 10.2. Waivers; Amendments..........................................96
SECTION 10.3. Notices......................................................96
SECTION 10.4. Governing Law; Submission to Jurisdiction; Integration.......99
SECTION 10.5. Severability; Counterparts..................................100
SECTION 10.6. Successors and Assigns......................................100
SECTION 10.7. Waiver of Confidentiality...................................101
SECTION 10.8. Confidentiality Agreement...................................101
SECTION 10.9. No Bankruptcy Petition Against Conduit Investors............101
SECTION 10.10. No Recourse Against Stockholders, Officers or Directors.....102
SECTION 10.11. Characterization of the Transactions Contemplated by
the Agreement...............................................102
SECTION 10.12. Subordination of Class B Investors..........................103
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SCHEDULES
SCHEDULE I Notice Addresses of Class A Bank Investors and Class B
Investors
SCHEDULE II Commitments of Class A Bank Investors and Class B Investors
EXHIBITS
EXHIBIT A Forms of Contracts
EXHIBIT B Credit and Collection Policies and Practices
EXHIBIT C List of Special Account Banks, Designated Account Agents and
Concentration Bank
EXHIBIT D-1 Form of Special Account Letter
EXHIBIT D-2 Form of 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 [RESERVED]
EXHIBIT K Forms of Opinions of Counsel
EXHIBIT L Forms of Secretary's Certificate
EXHIBIT M Form of Certificate
EXHIBIT N List of Approved Fiscal Intermediaries
EXHIBIT O Form of Transferring Affiliate Letter
EXHIBIT P Form of Parent Agreement
EXHIBIT Q List of Transferring Affiliates
EXHIBIT R Form of Account Agent Agreement
EXHIBIT S List of Closing Documents
EXHIBIT T Form of Reaffirmation of the Parent Agreement
SECOND AMENDED AND RESTATED TRANSFER
AND ADMINISTRATION AGREEMENT
SECOND AMENDED AND RESTATED TRANSFER AND ADMINISTRATION AGREEMENT
(this "AGREEMENT"), dated as of September 24, 2002, 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", ENTERPRISE FUNDING CORPORATION, a Delaware
corporation ("ENTERPRISE"), as a Conduit Investor, COMPASS US ACQUISITION, LLC,
a Delaware limited liability company ("COMPASS"), as a Conduit Investor, GIRO
MULTI-FUNDING CORPORATION, a Delaware Corporation ("GMFC"), as a Conduit
Investor, the FINANCIAL INSTITUTIONS PARTIES HERETO, as Class A Bank Investors,
the FINANCIAL INSTITUTIONS PARTIES HERETO, as Class B Investors, WESTLB AG, NEW
YORK BRANCH (formerly known as Westdeutsche Landesbank Girozentrale, New York
Branch) ("WESTLB"), as an Administrative Agent, BAYERISCHE LANDESBANK, NEW YORK
BRANCH ("BLB"), as an Administrative Agent and BANK OF AMERICA, N.A., a national
banking association ("BANK OF AMERICA"), as an Administrative Agent and as agent
(in such capacity, the "AGENT") for the Investors.
PRELIMINARY STATEMENTS
WHEREAS, the Transferor, the Collection Agent, the Conduit Investors,
the Class A Bank Investors, the Administrative Agents, and the Agent are parties
to that certain Amended and Restated Transfer and Administration Agreement dated
as of September 27, 1999 (as amended prior to the date hereof, the "EXISTING
TAA") (it being understood that BLB and GMFC became parties to the Existing TAA
on October 26, 2000);
WHEREAS, the Transferor has requested Bank of America, as a Class B
Investor, to acquire interests in the Transferred Interest which are subordinate
to the interests of the Class A Investors, and Bank of America has agreed to
acquire such interests on the terms and conditions set forth herein; 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:
1
"ACCOUNT AGENT AGREEMENT" means an agreement in substantially the form
of Exhibit R hereto.
"ADMINISTRATIVE AGENT" means (i) Bank of America as administrative
agent for the Related Group that includes Enterprise, (ii) WestLB, as
administrative agent for the Related Group that includes Compass, (iii) BLB, as
administrative agent for the Related Group that includes GMFC or (iv) Bank of
America, as administrative agent for the Related Group that includes the Class B
Investors.
"ADMINISTRATIVE FEE" means the fee payable by the Transferor to
Enterprise pursuant to Section 2.7(a) hereof, the terms of which are set forth
in the Fee Letter to which Enterprise is a party.
"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).
"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 Bank of America, in its capacity as agent for the
Investors, and any successor thereto appointed pursuant to Article IX.
"AGGREGATE UNPAIDS" means, at any time, an amount equal to the sum of
(i) the aggregate accrued and unpaid Discount with respect to all Tranche
Periods at such time, (ii) the Net Investment at such time, and (iii) all other
amounts owed (whether due or accrued) hereunder by the Transferor to the
Investors at such time.
"AGREEMENT" shall have the meaning specified in the Preamble to this
Agreement.
"APPLICABLE MARGIN" means at any time for purposes of calculating the
Eurodollar Rate for any Eurodollar Tranche Period:
(i) in the case of a Eurodollar Tranche relating to any portion of
the Class B Net Investment, 0.45%; PROVIDED that if a Eurodollar Tranche is
then outstanding with respect to the Related Group that includes
Enterprise, then the "Applicable Margin" for any Eurodollar Tranche
relating to the Class B Net Investment shall be equal to the applicable
margin specified in clause (ii) below; and
2
(ii) in the case of any other Eurodollar Tranche, the applicable
margin corresponding to the Consolidated Leverage Ratio (as such term is
defined in the Parent Agreement) set forth below as determined as of the
last day of the month then most recently ended for which an Investor Report
shall have been delivered to each Administrative Agent:
Consolidated
Leverage Applicable Margin
Ratio
------------ -----------------
< 1.75 0.450%
> 1.75 but < 2.0 0.500%
-
> 2.0 but < 2.5 0.625%
-
> 2.50 but < 3.0 0.875%
-
> 3.0 but < 3.25 1.000%
-
> 3.25 but < 3.75 1.250%
-
> 3.75 but < 4.0 1.375%
-
> 4.0 but < 4.25 1.500%
-
> 4.25 1.750%
-
The Applicable Margin shall be determined on each date that an Investor Report
shall be delivered by the Transferor or the Collection Agent to each
Administrative Agent and such Applicable Margin shall remain in effect until the
date upon which the next Investor Report shall have been so delivered to each
Administrative Agent, at which time the Applicable Margin shall be redetermined
in accordance with the Consolidated Leverage Ratio reported at such time.
"ASSIGNMENT AMOUNT" with respect to a Class A Bank Investor shall mean
at any time an amount equal to the lesser of (i) such Class A Bank Investor's
Pro Rata Share of the Net Investment held by the Conduit Investor in the same
Related Group at such time and (ii) such Class A Bank Investor's unused
Commitment.
"ASSIGNMENT AND ASSUMPTION AGREEMENT" means an Assignment and
Assumption Agreement substantially in the form of Exhibit G attached hereto.
"AUDITOR" shall have the meaning specified in Section 6.2(c).
3
"BANK OF AMERICA" means Bank of America, N.A., together with its
successors and assigns.
"BANK REVOLVER" means that certain Credit Agreement dated as of
September 27, 1996, among NMC and certain subsidiaries and affiliates as
borrowers, certain subsidiaries and affiliates as guarantors, the lenders named
therein, Bank of America, N.A., as paying agent, and The Bank of Nova Scotia,
The Chase Manhattan Bank, Dresdner Bank AG, New York and Grand Cayman Branches,
and Bank of America, N.A. as managing agents.
"BANKRUPTCY CODE" means the United States Bankruptcy Code, 11
U.S.C.ss.101 et seq., as amended.
"BASE RATE" or "BR" means, with respect to the Investors in any
Related Group, a rate per annum equal to the greater of (i) the prime rate of
interest announced by the Administrative Agent for such Related Group from time
to time, changing when and as said prime rate changes (such rate not necessarily
being the lowest or best rate charged by such Administrative Agent) and (ii) the
sum of (a) 1.50% and (b) the rate equal to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such transactions
received by such Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
"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.
"BLB" means Bayerische Landesbank, New York Branch, together with its
successors and permitted assigns.
"BMA" means Bio-Medical Applications Management Company, Inc., a
Delaware corporation, and its successors and permitted assigns.
"BMA TRANSFER AGREEMENT" means that certain Receivables Purchase
Agreement dated as of August 28, 1997 by and between BMA, as seller, and NMC, as
purchaser, as the same may be amended, restated, supplemented or otherwise
modified from time to time.
"BUSINESS DAY" means any day excluding Saturday, Sunday and any day on
which banks in New York, New York or Charlotte, North Carolina 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.
▇
"▇▇ ▇▇▇▇▇▇▇" means a Tranche as to which Discount is calculated at the
Base Rate.
"BR TRANCHE PERIOD" means, with respect to a BR Tranche for the
Investors in any Related Group, either (i) prior to the Termination Date, a
period of up to 30 days requested by the Transferor and agreed to by the
Administrative Agent for such Related Group, commencing on a Business Day
requested by the Transferor and agreed to by such Administrative Agent, or (ii)
after the Termination Date, a period of one day. If such BR Tranche Period would
end on a day which is not a Business Day, such BR Tranche Period shall end on
the next succeeding Business Day.
"CAPITALIZED LEASE" of a Person means any lease of property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with GAAP.
"CERTIFICATE" means the certificate issued to the Agent for the
benefit of the Investors pursuant to Section 2.2(d) of the Existing TAA.
"CHAMPUS/VA" means, collectively, (i) the Civilian Health and Medical
Program of the Uniformed Service, a program of medical benefits covering
retirees and dependents of a member or a former member of a uniformed service,
provided, financed and supervised by the United States Department of Defense and
established by 10 USC ss.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 ss.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.
"CLASS A AGGREGATE UNPAIDS" means all Aggregates Unpaids, other than
those owing to the members of the Class B Related Group.
"CLASS A BANK INVESTORS" means each financial institution identified
as a "Class A Bank Investor" on Schedule II and their respective successors and
assigns.
5
"CLASS A INVESTOR" means any Investor other than a Class B Investor.
"CLASS A NET INVESTMENT" means, at any time, the total Net Investment
at such time minus the Class B Net Investment at such time.
"CLASS A RELATED GROUP" means any Related Group other than the Class B
Related Group.
"CLASS B FACILITY LIMIT" means, at any time, the lesser of:
(i) the Related Group Limit for the Class B Related Group; and
(ii) an amount equal to the Maximum Net Investment minus the Class A
Net Investment at such time.
"CLASS B INVESTORS" means each financial institution identified on
Schedule II as a Class B Investor (but only with respect to its Commitment set
forth on Schedule II under the heading "Class B Investor" and any portion of the
Net Investment funded pursuant to such Commitment) together with their
respective successors and assigns.
"CLASS B NET INVESTMENT" means, at any time, the portion of the Net
Investment held by the Class B Investors at such time.
"CLASS B RELATED GROUP" means the Related Group that includes the
Class B Investors.
"CLOSING DATE" means September 24, 2002.
"CMS" means the Centers for Medicare and Medicaid Services (formerly
known as the Health Care Financing Administration), an agency of the HHS charged
with administering and regulating, among other things, certain aspects of
Medicaid and Medicare.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COLLATERAL AGENT" means (i) with respect to the Related Group that
includes Enterprise, Bank of America,, as collateral agent for any related
Liquidity Provider, any related Credit Support Provider, the holders of
Commercial Paper issued by Enterprise and certain other parties and (ii) with
respect to the Related Group that includes Compass, WestLB AG (formerly known as
Westdeutsche Landesbank Girozentrale), as collateral agent for any related
Liquidity Provider, any related Credit Support Provider, the holders of
Commercial Paper issued by Compass or its Related CP Issuer and certain other
parties.
"COLLECTION ACCOUNT" means the account, established by the Agent, for
the benefit of the Investors, pursuant to Section 2.12.
6
"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.
"COLLECTIONS" means, with respect to any Receivable, all cash
collections and other cash proceeds of such Receivable, including, without
limitation, all Finance Charges, if any, and cash proceeds of Related Security
with respect to such Receivable.
"COLLECTION DELAY PERIOD" means 10 days or such other number of days
as the Agent may select upon three Business Days' notice to the Transferor.
"COMMERCIAL OBLIGOR" means any Obligor referred to in clause (C) or
(E) of the definition of "Obligor" contained in this Section 1.1 hereof.
"COMMERCIAL PAPER" means, with respect to any Conduit Investor, the
promissory notes issued by such Conduit Investor or its Related CP Issuer in the
commercial paper market.
"COMMITMENT" means (i) with respect to each Class A Bank Investor or
Class B Investor party hereto, the commitment of such Investor to make
acquisitions from the Transferor or (in the case of a Class A Bank Investor) the
Conduit Investor in its Related Group in accordance herewith in an amount not to
exceed the dollar amount set forth opposite such 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 Investor's Commitment consented
to by such Investor prior to the time of determination, (ii) with respect to any
assignee of a Class A Bank Investor or Class B Investor party hereto taking
pursuant to an Assignment and Assumption Agreement, the commitment of such
assignee to make acquisitions from the Transferor or (in the case of a Class A
Bank Investor) the Conduit Investor in its Related Group not to exceed the
amount set forth in such Assignment and Assumption Agreement MINUS the dollar
amount of any Commitment or portion thereof assigned pursuant to an Assignment
and Assumption Agreement prior to such time of determination and (iii) with
respect to any assignee of an assignee referred to in clause (ii), the
commitment of such assignee to make acquisitions from the Transferor or (in the
case of a Class A Bank Investor) the Conduit Investor in its Related Group not
to exceed the amount set forth in an Assignment and Assumption Agreement between
such assignee and its assign; PROVIDED that the Commitment of each Class B
Investor shall be reduced by its Pro Rata Share of any reduction of the Related
Group Limit for Class B pursuant to Section 2.2(f).
"COMMITMENT TERMINATION DATE" means October 24, 2002, or such later
date to which the Commitment Termination Date may be extended by Transferor, the
Agent, the Class A Bank Investors and (so long as the Commitments of the Class B
Investors are greater than zero) the Class B Investors not later than 60 days
prior to the then current Commitment Termination Date.
7
"COMPASS" means Compass US Acquisition, LLC, a Delaware limited
liability company, together with its successors and permitted assigns.
"CONCENTRATION ACCOUNT" means a special depositary account in the name
of the Transferor maintained at a bank acceptable to the Agent for the purpose
of receiving Collections remitted from the Special Accounts.
"CONCENTRATION ACCOUNT AGREEMENT" means an agreement substantially in
the form attached as Exhibit D-2 hereto among the Transferor, the Concentration
Account Bank and the Agent.
"CONCENTRATION ACCOUNT BANK" means the bank holding the Concentration
Account.
"CONCENTRATION ACCOUNT NOTICE" means a notice, in substantially the
form of the Notice of Effectiveness attached to the Concentration Account
Agreement, from the Agent to the Concentration Account Bank.
"CONCENTRATION FACTOR" means for any Designated Obligor on any date of
determination (calculated prior to the payment of any Transfer Price to be made
on such date but as if such payment had been made):
(a) in the case of any Commercial Obligor or Hospital Obligor that
does not have a Special Concentration Limit (as defined below), 5% of the Class
A Net Investment outstanding on such date; PROVIDED that, subject to clause (c)
below, for so long as Aetna Inc. is rated at least BBB- by Standard & Poor's and
at least Baa3 by Moody's, the Concentration Factor for Aetna Inc. shall be 7.0%
of the Class A Net Investment outstanding on such date, (ii) for so long as
Cigna Corp. is rated at least A- by Standard & Poor's and at least A3 by
Moody's, the Concentration Factor for Cigna Corp. shall be 10% of the Class A
Net Investment outstanding on such date and (iii) for so long as United
Healthcare Corporation is rated at least A- by Standard & Poor's and at least A3
by Moody's, the Concentration Factor for United Healthcare Corporation shall be
10% of the Class A Net Investment outstanding on such date;
(b) in the case of any US Government Obligor that does not have a
Special Concentration Limit, 80% of the Class A Net Investment outstanding on
such date; or
(c) in the case of any Obligor (including any Obligor described in
clauses (a) and (b)), such higher amount determined by the Agent (with the
consent of each Administrative Agent) or such lower amount determined by any
Administrative Agent in the reasonable exercise of its good faith judgment and
disclosed in a written notice delivered to the Transferor and the other
Administrative Agent (any such higher or lower amount being a "SPECIAL
CONCENTRATION LIMIT").
"CONDUIT INVESTOR" means Compass, GMFC or Enterprise.
8
"CONFIDENTIAL INFORMATION" shall have the meaning specified in Section
5.1(d).
"CONTRACT" means an agreement between an Originating Entity and an
Obligor which (i) if in writing, is in substantially the form of one of the
forms of written contract set forth in Exhibit A hereto or otherwise approved by
each Administrative Agent, and (ii) if an open account agreement, is evidenced
by one of the forms of invoices set forth in Exhibit A hereto or otherwise
approved by each Administrative Agent, in each case pursuant to or under which
such Obligor shall be obligated to pay for services or merchandise from time to
time.
"CONTRACTUAL ADJUSTMENT" means, with respect to any Receivable, an
amount by which the outstanding principal amount of such Receivable is reduced
as a result of (i) Medicare or Medicaid program funding and fee requirements or
(ii) any other reasonable and customary insurance company or other charge or
reimbursement policies or procedures.
"CONTRACTUAL ADJUSTMENT AMOUNT" means, with respect to any Receivable
originated by a member of the Spectra Renal Management Group, at any time, an
amount equal to (i) 75% of the original outstanding principal amount of such
Receivable (excluding any accrued and outstanding Finance Charges related
thereto) MINUS (ii) the amount of any Contractual Adjustments already granted
with respect to such Receivable.
"CP RATE" means, with respect to any CP Tranche Period for any Conduit
Investor, the rate equivalent to the rate (or if more than one rate, the
weighted average of the rates) at which Commercial Paper of such Conduit
Investor or its Related CP Issuer having a term equal to such CP Tranche Period
may be sold by any placement agent or commercial paper dealer selected by such
Conduit Investor or such Related CP Issuer, PROVIDED, HOWEVER, that if the rate
(or rates) as agreed between any such agent or dealer and such Conduit Investor
or its Related CP Issuer is a discount rate, then the rate (or if more than one
rate, the weighted average of the rates) resulting from such Conduit Investor's
converting such discount rate (or rates) 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, a period of days not to exceed 90 days commencing on a
Business Day requested by the Transferor and agreed to by such Conduit Investor
pursuant to Section 2.3. If a CP Tranche Period would end on a day which is not
a Business Day, such CP Tranche Period shall end on the next succeeding Business
Day.
"CREDIT AND COLLECTION POLICY" shall mean the Transferor's credit and
collection policy or policies and practices, relating to Contracts and
Receivables existing on the date hereof and referred to in Exhibit B attached
hereto, as modified from time to time in compliance with Section 5.2(c).
"CREDIT SUPPORT AGREEMENT" means, with respect to any Conduit
Investor, an agreement between such Conduit Investor or its Related CP Issuer
and a Credit Support Provider
9
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 such Related CP Issuer of Commercial Paper.
"DEALER FEE" means, with respect to any Conduit Investor, the fee
payable by the Transferor to the related Administrative Agent or, in the case of
GMFC, to such Conduit Investor, pursuant to Section 2.4 hereof, the terms of
which are set forth in the Fee Letter to which such Conduit Investor is a party.
"DEEMED COLLECTIONS" means any Collections on any Receivable deemed to
have been received pursuant to Section 2.9(a) or (b) hereof.
"DEFAULTED RECEIVABLE" means a Receivable: (i) as to which any
payment, or part thereof, remains unpaid for over 270 days from the original due
date for such Receivable; (ii) as to which an Event of Bankruptcy has occurred
and is continuing with respect to the Obligor thereof; (iii) which has been
identified by the Transferor, any Originating Entity or the Collection Agent as
uncollectible (including, without limitation, any Receivable that is written off
by the Transferor, any Originating Entity or the Collection Agent); or (iv)
which, consistent with the Credit and Collection Policy, should be written off
as uncollectible.
"DEFAULT RATIO" means the ratio (expressed as a percentage) computed
as of the last day of each calendar month by dividing (i) the aggregate
Outstanding Balance of all Receivables that became Defaulted Receivables during
such month together with all Receivables under the Medicare or Medicaid Program
that were deemed disputed as provided for in the PROVISO to clause (xi) of the
definition of "Eligible Receivables" during such month, by (ii) the aggregate
Outstanding Balance of Receivables that shall have been acquired by the Seller
during the month occurring nine months prior to such calendar month.
"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 for such Receivable 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).
10
"DILUTION HORIZON" means the ratio (expressed as a percentage)
computed as of the last day of each calendar month by dividing (i) the aggregate
Outstanding Balance of all Receivables acquired by the Transferor during the
calendar month preceding such calendar month by (ii) the Net Receivables Balance
as of such last day of such calendar month.
"DILUTION RATIO" means, with respect to any calendar month, the
greater of (a) the ratio (expressed as a percentage) computed as of the last day
of such calendar month by dividing (i) the aggregate amount of any reductions to
or cancellations of the respective Outstanding Balances of the Receivables as a
result of any defective, rejected or returned merchandise or services and all
credits, rebates, discounts, disputes, warranty claims, repossessed or returned
goods, chargebacks, allowances and any other billing and other adjustment
(whether effected through the granting of credits against the applicable
Receivables or by the issuance of a check or other payment in respect of (and as
payment for) such reduction) by the Seller, the Transferor or the Collection
Agent, provided to Obligors in respect of Receivables during such month by (ii)
the aggregate Outstanding Balance of all Receivables which arose during the
preceding month and (b) 3.0%.
"DILUTION RESERVE" means, at any time, an amount equal to the product
of (i) the Dilution Reserve Percentage and (ii) the Net Receivables Balance on
such date.
"DILUTION RESERVE PERCENTAGE" means, on any day, an amount equal to:
[ ( 1.5 x ADR ) + [( DS - ADR ) x ( DS / ADR)] ] x DH
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
11
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:
TD + LY
Where:
TD = the sum of the unpaid Discount for all Tranche Periods to which any
portion of the Class A Net Investment is allocated.
LY = the Liquidation Yield
"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
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.
"ELIGIBLE INVESTMENTS" means any of the following (a) negotiable
instruments or securities represented by instruments in bearer or registered or
in book-entry form which evidence (i) obligations fully guaranteed by the United
States of America; (ii) time deposits in, or bankers acceptances issued by, any
depositary institution or trust company incorporated under the laws of the
United States of America or any state thereof and subject to supervision and
examination by Federal or state banking or depositary institution authorities;
PROVIDED, HOWEVER, that at the time of investment or contractual commitment to
invest therein, the certificates of deposit or short-term deposits, if any, or
long-term unsecured debt obligations (other than such obligation whose rating is
based on collateral or on the credit of a Person other than such institution or
trust company) of such depositary institution or trust company shall have a
credit rating from ▇▇▇▇▇'▇ 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 ▇▇▇▇▇'▇ and
by S&P; (iii) certificates of deposit having, at the
12
time of investment or contractual commitment to invest therein, a rating from
▇▇▇▇▇'▇ and S&P of at least "P-1" and A-1", respectively; or (iv) investments in
money market funds rated in the highest investment category or otherwise
approved in writing by the applicable rating agencies; (b) demand deposits in
any depositary institution or trust company referred to in (a) (ii) above; (c)
commercial paper (having original or remaining maturities of no more than 30
days) having, at the time of investment or contractual commitment to invest
therein, a credit rating from ▇▇▇▇▇'▇ and S& P of at least "P-1" and "A-1",
respectively; and (e) repurchase agreements involving any of the Eligible
Investments described in clauses (a)(i), (a)(iii) and (d) hereof so long as the
other party to the repurchase agreement has at the time of investment therein, a
rating from ▇▇▇▇▇'▇ and S&P of at least "P-1" and "A-1", respectively.
"ELIGIBLE RECEIVABLE" means, at any time, any Receivable:
(i) which has been (A) originated by the Seller or a Transferring
Affiliate, (B) sold by the applicable Transferring Affiliate to the Seller
pursuant to (and in accordance with) the Transferring Affiliate Letter or the
BMA Transfer Agreement, free and clear of any Adverse Claim, in the case of a
Receivable originated by a Transferring Affiliate, and (C) sold to the
Transferor pursuant to (and in accordance with) the Receivables Purchase
Agreement, with the effect that the Transferor has good title thereto, free and
clear of all Adverse Claims;
(ii) which (together with the Collections and Related Security related
thereto) has been the subject of either a valid transfer and assignment from the
Transferor to the Agent, on behalf of the Investors, of all of the Transferor's
right, title and interest therein or the grant of a first priority perfected
security interest herein (and in the Collections and Related Security related
thereto), effective until the termination of this Agreement;
(iii) the Obligor of which (A) is a United States resident, (B) is a
Designated Obligor at the time of the initial creation of an interest therein
hereunder, (C) is not an Affiliate of any Originating Entity or any of the
parties hereto, and (D) other than in the case of any Obligor of the type
described in clause (A), (B) or (F) of the definition herein of "Obligor", is
not a government or a governmental subdivision or agency;
(iv) which is not a Defaulted Receivable at the time of the initial
creation of an interest therein hereunder;
(v) which is not a Delinquent Receivable at the time of the initial
creation of an interest of the Agent or any Investor therein;
(vi) which, (A) arises pursuant to a Contract with respect to which
each of the Seller and the Transferor has performed all 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
13
programs); and (C) according to the Contract related thereto, is required to be
paid in full upon receipt by the Obligor thereof of the invoice related thereto
or at a later time not to exceed 90 days from the original billing date
therefor;
(vii) which is an "eligible asset" as defined in Rule 3a-7 under the
Investment Company Act of 1940, as amended;
(viii) a purchase of which with the proceeds of Commercial Paper would
constitute a "current transaction" within the meaning of Section 3(a)(3) of the
Securities Act of 1933, as amended;
(ix) which is an "account" or "general intangible" within the meaning
of Article 9 of the UCC of all applicable jurisdictions;
(x) which is denominated and payable only in United States dollars in
the United States;
(xi) which, (A) arises under a Contract that has been duly authorized
and that, together with the Receivable related thereto, is in full force and
effect and constitutes the legal, valid and binding obligation of the related
Obligor enforceable against such Obligor in accordance with its terms, (B) is
not subject to any litigation, dispute, counterclaim or other defense and (C) is
not subject to any offset other than as set forth in the related Contract;
PROVIDED, HOWEVER, that for the purposes of this clause (xi), any Receivable
under the Medicare, Medicaid or CHAMPUS/VA program as to which any payment, or
part thereof, remains unpaid for 270 days or more from the original invoice date
shall be deemed to be a disputed Receivable and, further, any Receivable, for
which the Transferor receives a partial payment that is below the estimated
value of such Receivable, net of Contractual Adjustments, shall be deemed to be
a disputed Receivable;
(xii) which, together with the Contract related thereto, does not
contravene in any material respect any laws, rules or regulations applicable
thereto (including, without limitation, (A) laws, rules and regulations relating
to healthcare, insurance, usury, consumer protection, truth in lending, fair
credit billing, fair credit reporting, equal credit opportunity, fair debt
collection practices and privacy and (B) CHAMPUS/VA Regulations, Medicare
Regulations and Medicaid Regulations) and with respect to which no part of the
Contract related thereto is or would, as a result of any of the transactions
contemplated herein, be in violation of any such law, rule or regulation in any
material respect and with respect to which no Originating Entity or the
Transferor, and to the best knowledge of the Seller and the Transferor, no other
party to the Contract related thereto, is in violation of any such law, rule or
regulation in any material respect;
(xiii) which (A) satisfies 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;
14
(xiv) which was generated in the ordinary course of an Originating
Entity's business;
(xv) the Obligor of which has been directed to make all payments to a
Special Account with respect to which there shall be a Special Account Letter
(and, if applicable, an Account Agent Agreement) in effect;
(xvi) neither the assignment of which under the Transferring Affiliate
Letter or the BMA Transfer Agreement by the applicable Transferring Affiliate,
the assignment of which under the Receivables Purchase Agreement by the Seller
and the assignment of which hereunder by the Transferor nor the performance or
execution of any of the other transactions contemplated in any of the
Transaction Documents with respect thereto violates, conflicts or contravenes
any applicable laws, rules or regulations (including without limitation, any
CHAMPUS/VA Regulations, any Medicaid Regulations and any Medicare Regulations),
orders or writs or any contractual or other restriction, limitation or
encumbrance;
(xvii) which has not been compromised, adjusted or modified (including
by the extension of time for payment or the granting of any discounts,
allowances or credits); PROVIDED, HOWEVER, that only such portion of such
Receivable that is the subject of such compromise, adjustment or modifications
shall be deemed to be ineligible pursuant to the terms of this clause (xvii);
(xviii) which, in the case of any Receivable payable by an Obligor
through a fiscal intermediary or similar entity, is payable through one of the
Persons in such capacity that is specified in Exhibit N hereto or that has
otherwise been approved by each Administrative Agent;
(xix) as to which, in the case of any Obligor of the type described in
clause (C) or (D) of the definition of "Obligor" herein, notice of the interest
therein of the Transferor shall have been given to such Obligor; and
(xx) which, in the case of any Receivable arising from a sale of
services or merchandise by (A) NMC Homecare, Inc. or National Medical Care Home
Care Service Agency, Inc., such Receivable shall have been billed through either
the "AS 400" billing system or the "▇▇▇▇▇" system or (B) NMC Diagnostic
Services, Inc., such Receivable shall have been billed through the "IDX" billing
system or, in any such case, through any successor billing system described to
each Administrative Agent by the Seller or the Transferor and approved by each
Administrative Agent from time to time.
"ENTERPRISE" means Enterprise Funding Corporation, a Delaware
corporation, together with its successors and permitted assigns.
"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.
15
"ERISA AFFILIATE" means, with respect to any Person, (i) any
corporation which is a member of the same controlled group of corporations
(within the meaning of Section 414(b) of the Code (as in effect from time to
time, the "Code")) as such Person; (ii) a trade or business (whether or not
incorporated) under common control (within the meaning of Section 414(c) of the
Code) with such Person; or (iii) a member of the same affiliated service group
(within the meaning of Section 414(n) of the Code) as such Person, any
corporation described in clause (i) above or any trade or business described in
clause (ii) above.
"ESTIMATED MATURITY PERIOD" shall mean, at any time, the period,
rounded upward to the nearest whole number of days, equal to the weighted
average number of days until due of the Receivables as calculated by the
Collection Agent in good faith and set forth in the most recent Investor Report,
such calculation to be based on the assumptions that (a) each Receivable within
a particular aging category (as set forth in the Investor Report) will be paid
on the last day of such aging category and (b) the last day of the last such
aging category coincides with the last date on which any Outstanding Balance of
Receivables would be written off as uncollectible or charged against any
applicable reserve or similar account in accordance with the objective
requirements of the Credit and Collection Policy and the Seller's and the
Transferor's normal accounting practices applied on a basis consistent with
those reflected in the Seller's financial statements, PROVIDED, HOWEVER, that if
the Agent, any Administrative Agent or any Investor shall reasonably disagree
with any such calculation, the Agent may recalculate the Estimated Maturity
Period, and such recalculation, in the absence of manifest error, shall be
conclusive.
"EURODOLLAR RATE" means, with respect to any Eurodollar Tranche Period
for the Investors in any Related Group, a rate which is equal to the sum
(rounded upwards, if necessary, to the next higher 1/100 of 1%) of (A) the
Applicable Margin at such time, (B) the rate obtained by dividing (i) the
applicable LIBOR Rate by (ii) a percentage equal to 100% minus the reserve
percentage used for determining the maximum reserve requirement as specified in
Regulation D (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) that is applicable to the
Administrative Agent for such Related Group during such Eurodollar Tranche
Period in respect of eurocurrency or eurodollar funding, lending or liabilities
(or, if more than one percentage shall be so applicable, the daily average of
such percentage for those days in such Eurodollar Tranche Period during which
any such percentage shall be applicable) plus (C) the then daily net annual
assessment rate (rounded upwards, if necessary, to the nearest 1/100 of 1%) as
estimated by such Administrative Agent for determining the current annual
assessment payable by such Administrative Agent to the Federal Deposit Insurance
Corporation in respect of eurocurrency or eurodollar funding, lending or
liabilities.
"EURODOLLAR TRANCHE" means a Tranche as to which Discount is
calculated at the Eurodollar Rate.
"EURODOLLAR TRANCHE PERIOD" means, with respect to a Eurodollar
Tranche for the Investors in any Related Group, prior to the Termination Date, a
period of up to one month requested by the Transferor and agreed to by the
Administrative Agent for such Related Group, commencing on a Business Day
requested by the Transferor and agreed to by such
16
Administrative Agent; PROVIDED, HOWEVER, that if such Eurodollar Tranche Period
would expire on a day which is not a Business Day, such Eurodollar Tranche
Period shall expire on the next succeeding Business Day; PROVIDED, FURTHER, that
if such Eurodollar Tranche Period would expire on (a) a day which is not a
Business Day but is a day of the month after which no further Business Day
occurs in such month, such Eurodollar Tranche Period shall expire on the next
preceding Business Day or (b) a Business Day for which there is no numerically
corresponding day in the applicable subsequent calendar month, such Eurodollar
Tranche Period shall expire on the last Business Day of such month.
"EVENT OF BANKRUPTCY" means, with respect to any Person, (i) that such
Person (a) shall generally not pay its debts as such debts become due or (b)
shall admit in writing its inability to pay its debts generally or (c) shall
make a general assignment for the benefit of creditors; (ii) any proceeding
shall be instituted by or against such Person seeking to adjudicate it as
bankruptcy or insolvent, or seeking liquidation, winding up, reorganization,
arrangements, adjustment, protection, relief or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee or other similar official for it or any substantial part of
its property or (iii) if such Person is a corporation (or other business
entity), such Person or any Subsidiary shall take any corporate (or analogous)
action to authorize any of the actions set forth in the preceding clauses (i) or
(ii).
"EXCLUDED TAXES" shall have the meaning specified in Section 8.3
hereof.
"EXISTING TAA" shall have the meaning specified in the Preliminary
Statements hereof.
"FACE AMOUNT" means, with respect to any Commercial Paper, (i) the
face amount of any such Commercial Paper issued on a discount basis and (ii) the
principal amount of, plus the amount of all interest accrued and to accrue
thereon to the stated maturity date of, any such Commercial Paper issued on an
interest-bearing basis.
"FACILITY FEE" means, with respect to any Conduit Investor, a fee
payable by the Transferor to such Conduit Investor pursuant to Section 2.7(a)
hereof, the terms of which are set forth in the Fee Letter to which such Conduit
Investor is a party.
"FACILITY LIMIT" means $560,000,000; PROVIDED that such amount may not
at any time exceed the aggregate Commitments of the Class A Bank Investors at
any time in effect.
"FEE LETTER" means (i) the letter agreement dated January 31, 2002
among the Transferor, Enterprise and Bank of America with respect to the fees to
be paid by the Transferor hereunder in respect of the Related Group that
includes Enterprise, as amended, modified or supplemented from time to time,
(ii) the letter agreement dated January 31, 2002 between the Transferor, Compass
and WestLB with respect to the fees to be paid by the Transferor hereunder with
respect to the Related Group that includes Compass, as amended, modified or
supplemented from time to time or (iii) the letter agreement dated October 26,
2000 between the Transferor,
17
GMFC and BLB with respect to the fees to be paid by the Transferor hereunder
with respect to the Related Group that includes GMFC, as amended, modified or
supplemented from time to time.
"FINANCE CHARGES" means, with respect to a Contract, any finance,
interest, late or similar charges owing by an Obligor pursuant to such Contract.
"FMC" means Fresenius Medical Care AG, a corporation organized and
existing under the laws of the Federal Republic of Germany, and its successors
and permitted assigns.
"FMCH" means Fresenius Medical Care Holdings, Inc., a New York
corporation, and its successors and permitted assigns.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
accounting profession, which are in effect as of the date of this Agreement.
"GMFC" means Giro Multi-Funding Corporation, a bankruptcy-remote
special purpose company incorporated in Delaware, together with its successors
and permitted assigns.
"GROUP MAJORITY INVESTORS" has the meaning specified in Section 9.8.
"GUARANTY" means, with respect to any Person any agreement by which
such Person assumes, guarantees, endorses, contingently agrees to purchase or
provide funds for the payment of, or otherwise becomes liable upon, the
obligation of any other Person, or agrees to maintain the net worth or working
capital or other financial condition of any other Person or otherwise assures
any other creditor of such other Person against loss, including, without
limitation, any comfort letter, operating agreement or take-or-pay contract and
shall include, without limitation, the contingent liability of such Person in
connection with any application for a letter of credit.
"HHS" means the Department of Health and Human Services, an agency of
the Federal Government of the United States.
"HOSPITAL OBLIGOR" means any Obligor referred to in clause (D) of the
definition of "Obligor" contained in this Section 1.1 hereof.
"INCREMENTAL TRANSFER" means a Transfer upon giving effect to which
the Net Investment hereunder shall be increased.
"INDEBTEDNESS" means, with respect to any Person and without
duplication, such Person's (i) obligations for borrowed money, (ii) obligations
representing the deferred purchase price of property other than accounts payable
arising in the ordinary course of such Person's
18
business on terms customary in the trade, (iii) obligations, whether or not
assumed, secured by liens or payable out of the proceeds or production from
property now or hereafter owned or acquired by such Person, (iv) obligations
which are evidenced by notes, acceptances, or other instruments, (v) Capitalized
Lease obligations and (vi) obligations for which such Person is obligated
pursuant to a Guaranty.
"INDEMNIFIED AMOUNTS" has the meaning specified in Section 8.1 hereof.
"INDEMNIFIED PARTIES" has the meaning specified in Section 8.1 hereof.
"INITIAL TRANSFER DOCUMENTS" shall have the meaning specified in
Section 5.2(h).
"INTEREST COMPONENT" shall mean, (i) with respect to any Commercial
Paper issued on an interest-bearing basis, the interest payable on such
Commercial Paper at its maturity (including any dealer commissions) and (ii)
with respect to any Commercial Paper issued on a discount basis, the portion of
the face amount of such Commercial Paper representing the discount incurred in
respect thereof (including any dealer commissions).
"INVESTOR" means a Conduit Investor, a Class A Bank Investor or a
Class B Investor.
"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.
"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:
(RVF x LBR x NI) x (EMP + CDF)
-----------
360
Where:
RVF = the Rate Variance Factor at such time;
▇▇
▇▇▇ = the Base Rate at such time which is applicable to the liquidation
period after a Termination Event;
NI = the Net Investment at such time;
EMP = the Estimated Maturity Period of the Receivables; and
CDF = the Collection Delay Factor.
"LIQUIDITY PROVIDER" means, with respect to any Conduit Investor, the
Person or Persons who will provide liquidity support to such Conduit Investor in
connection with the issuance by such Conduit Investor or its Related CP Issuer
of Commercial Paper.
"LIQUIDITY PROVIDER AGREEMENT" means an agreement between a Conduit
Investor and one or more Liquidity Providers evidencing the obligation of each
such Liquidity Provider to provide liquidity support to such Conduit Investor in
connection with the issuance by such Conduit Investor 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 aggregate Outstanding
Balance of all Receivables acquired by the Seller during the nine most recently
ended calendar months by (ii) the aggregate Outstanding Balance of all
Receivables that are not more than 270 days past due as of the last day of the
most recently ended calendar month times (b) the highest average Default Ratio
for any consecutive three month period during the immediately preceding 12-month
period.
"LOSS PERCENTAGE" means on any day the greater of (i) one and one-half
(1.5) times the Loss Horizon as of such day and (ii) 20%.
"LOSS RESERVE" means, on any day, an amount equal to:
LP x (CANI + DLR + DR + SFR)
Where:
LP = the Loss Percentage at the close of business of the Collection Agent
on such day;
CANI = the Class A Net Investment at the close of business of the Collection
Agent on such day;
DLR = the Dilution Reserve at the close of business of the Collection Agent
on such day;
DR = the Discount Reserve at the close of business of the Collection Agent
on such day;
20
SFR = the Servicing Fee Reserve at the close of business of the Collection
Agent on such day.
Notwithstanding the foregoing, the Loss Reserve shall at all times be at least
equal to the sum of (x) 5% of the Maximum Net Investment plus (y) the Class B
Net Investment as of the close of business on the date of determination.
"LOSS-TO-LIQUIDATION RATIO" means the ratio (expressed as a
percentage) computed as of the last day of each calendar month by dividing (i)
the aggregate Outstanding Balance of all Receivables which became Defaulted
Receivables during such month, by (ii) the aggregate amount of Collections
received by the Collection Agent during such period.
"MAJORITY INVESTORS" means, at any time, those Class A Bank Investors
which hold Commitments aggregating in excess of 51% of the aggregate Commitments
of all Class A Bank Investors as of such date; PROVIDED that if the Termination
Date has occurred hereunder and the Class A Aggregate Unpaids have been paid in
full, then the "Majority Investors" shall mean those Class B Investors which
hold Commitments aggregating in excess of 51% of the aggregate Commitments of
all Class B Investors as of such date.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on any of
(i) the collectibility or enforceability of a material portion of the
Receivables or Related Security, (ii) the ability of the Transferor or any
Originating Entity to charge or collect a material portion of the Receivables or
Related Security, (iii) the ability of (A) the Transferor or any Originating
Entity to perform or observe in any material respect any provision of this
Agreement or any other Transaction Document to which it is a party or (B) of FMC
or FMCH to cause the due and punctual performance and observation by the Seller
or the Transferor of any such provision or, if the Seller or the Transferor
shall fail to do so, to perform or observe any such provision required to be
performed or observed by the Seller or the Transferor under this Agreement or
any other Transaction Document to which the Seller or the Transferor is party,
in each case pursuant to the Parent Agreement, (iv) the ability of (A) any
Transferring Affiliate to perform or observe in any material respect any
provision of the Transferring Affiliate Letter or, in the case of BMA, the BMA
Transfer Agreement or, in the case of any Designated Account Agent, the
applicable Account Agent Agreement, or (B) of FMC or FMCH to cause the due and
punctual performance and observation by such Transferring Affiliate, BMA or such
Designated Account Agent of any such provision or, if such Transferring
Affiliate, BMA or such Designated 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 of FMC, FMCH,
NMC or the Transferor or (vi) the interests of the Agent, any Administrative
Agent or any of the Investors under the Transaction Documents.
"MAXIMUM NET INVESTMENT" means $548,800,000.
"MAXIMUM PERCENTAGE FACTOR" means 98%.
21
"MAXIMUM CLASS A NET INVESTMENT" means, at any time, the maximum Class
A Net Investment that would not cause the Percentage Factor to exceed the
Maximum Percentage Factor, as set forth in the most recent Investor Report
delivered pursuant to Section 2.11, rounded down to the nearest multiple of
$1,000,000.
"MEDICAID" means the medical assistance program established by Title
XIX of the Social Security Act (42 USC ss.ss.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
ss.ss.1395 et seq.) and any statutes succeeding thereto.
"MEDICARE REGULATIONS" means, collectively, (a) all federal statutes
(whether set forth in Title XVIII of the Social Security Act or elsewhere)
affecting Medicare; and (b) all applicable provisions of all rules, regulations,
manuals, orders and administrative, reimbursement and other guidelines of all
Governmental Authorities (including, without limitation, HHS, CMS, the Office of
the Inspector General for HHS, or any Person succeeding to the functions of any
of the foregoing) promulgated pursuant to or in connection with the foregoing
(whether or not having the force of law), as each may be amended, supplemented
or otherwise modified from time to time.
"MINIMUM AMOUNT" shall have the meaning specified in Section 5.1(h).
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA which is or was at any time during the current year
or the immediately preceding five years contributed to by the Transferor, the
Seller or any ERISA Affiliate of the Transferor or the Seller on behalf of its
employees.
"NET ASSET TEST" shall mean, in connection with any assignment by a
Conduit Investor of an interest in the Class A Net Investment pursuant to
Section 9.7 hereof, that on the day immediately prior to the day on which such
assignment is to take effect, the Net Receivables Balance shall be greater than
the Class A Net Investment.
22
"NET INVESTMENT" means the sum of the cash amounts paid to the
Transferor for each Incremental Transfer less the aggregate amount of
Collections received and applied by the Agent to reduce such Net Investment
pursuant to Section 2.5, 2.6 or 2.9 hereof; PROVIDED that the Net Investment
shall be restored and reinstated in the amount of any Collections so received
and applied if at any time the distribution of such Collections is rescinded or
must otherwise be returned for any reason; and PROVIDED FURTHER that the Net
Investment may be increased by the amount described in Section 9.7(d) as
described therein. A portion of the Net Investment shall be deemed to be held by
an Investor to the extent such portion of the Net Investment shall have been
funded by, or assigned to, such Investor.
"NET RECEIVABLES BALANCE" means at any time the Outstanding Balance of
the Eligible Receivables at such time reduced, without duplication, by the sum
of (i) the aggregate amount by which the Outstanding Balance of all Eligible
Receivables of each Designated Obligor or class of Designated Obligors exceeds
the Concentration Factor for such Designated Obligor or class of Designated
Obligors, PLUS (ii) the aggregate Outstanding Balance of all Eligible
Receivables which are Defaulted Receivables, PLUS (iii) the excess, if any, of
(A) the aggregate Outstanding Balance of all Eligible Receivables of each
Obligor referred to in clause (G) of the definition of "Obligor" contained in
this Section 1.1, over (B) an amount equal to 5% of the aggregate Outstanding
Balance of all Eligible Receivables, PLUS (iv) the aggregate amount by which the
Outstanding Balance of all Eligible Receivables originated by any member of the
Spectra Renal Management Group exceeds 7.5% of the Class A Net Investment.
"NMC" means National Medical Care, Inc., a Delaware corporation and
owner of 100% of the outstanding stock of the Transferor.
"NPRBI" shall have the meaning specified in Section 2.13.
"OBLIGOR" of any Receivable means (i) any Person obligated to make
payments of such Receivable pursuant to a Contract and/or (ii) any Person owing
any amount in respect of such Receivable, or in respect of any Related Security
with respect to such Receivable, all such Persons referred to in any of clauses
(A), (B), (E), (F) and (G) below, and each Person referred to in any of clauses
(C) and (D) below, to be deemed for purposes of this Agreement to be one
Obligor:
(A): all Persons owing Receivables or Related Security under the
Medicare program;
(B): all Persons owing Receivables or Related Security under the
Medicaid program;
(C): each Person which is an insurance company;
(D): each Person which is a hospital or other health care
provider;
23
(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 by NMC Medical
Products, Inc. of services or merchandise;
(F): all Persons owing Receivables or Related Security under the
CHAMPUS/VA Program; and
(G): all Persons who receive the services or merchandise the sale
of which results in Receivables that are not insured, guaranteed or
otherwise supported in respect thereof by any of the Persons referred
to in clauses (A) through (F) above, including any Person owing any
amount in respect of Receivables by reason of insurance policy
deductibles or co-insurance agreements or arrangements.
"OFFICIAL BODY" means any government or political subdivision or any
agency, authority, bureau, central bank, commission, department or
instrumentality of any such government or political subdivision, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign or domestic.
"ORIGINATING ENTITY" means any of the Seller and any Transferring
Affiliate.
"OTHER TRANSFEROR" means, with respect to any Conduit Investor, any
Person other than the Transferor that has entered into a receivables purchase
agreement or transfer and administration agreement with such Conduit Investor.
"OUTSTANDING BALANCE" means (i) with respect to any Receivable
originated by a member of the Spectra Renal Management Group, the outstanding
principal amount thereof (excluding any accrued and outstanding Finance Charges
related thereto) MINUS the Contractual Adjustment Amount with respect to such
Receivable and (ii) with respect to any other Receivable, the outstanding
principal amount thereof (excluding any accrued and outstanding Finance Charges
related thereto).
"PARENT AGREEMENT" means an agreement substantially in the form set
forth as Exhibit P hereto dated as of August 28, 1997 made by FMC 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, FMC, 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.
24
"PERCENTAGE FACTOR" shall mean the fraction (expressed as a
percentage) computed at any time of determination as follows:
CANI + LR + DLR + DR + SFR
--------------------------
NRB
Where:
CANI = the Class A Net Investment at the time of such computation;
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.
"PERSON" means any corporation, limited liability company, natural
person, firm, joint venture, partnership, trust, unincorporated organization,
enterprise, government or any department or agency or any government.
"POTENTIAL TERMINATION EVENT" means an event which but for the lapse
of time or the giving of notice, or both, would constitute a Termination Event.
"PRIMARY PAYOR" means (i) each Obligor referred to in clauses (A),
(B), (E), (F) and (G) of the definition of "Obligor" contained in this Section
1.1, (ii) collectively, all Obligors of the type referred to in clause (C) of
the definition of "Obligor" contained in this Section 1.1 and (iii)
collectively, all Obligors of the type referred to in clause (D) of the
definition of "Obligor" contained in this Section 1.1.
"PRO RATA SHARE" means, for a Class A Bank Investor or Class B
Investor in any Related Group, the Commitment of such Class A Bank Investor or
Class B Investor divided by the sum of the Commitments of all Class A Bank
Investors or Class B Investors, as applicable in such Related Group.
"PROCEEDS" means "proceeds" as defined in Section 9-306 (1) of the UCC
as in effect on the date hereof.
25
"PROGRAM FEE" means, with respect to any Conduit Investor, the fee
payable by the Transferor to such Conduit Investor pursuant to Section 2.7(a)
hereof, the terms of which are set forth in the Fee Letter to which such Conduit
Investor is a party.
"PURCHASED INTEREST" means the interest in the Receivables acquired by
a Liquidity Provider from a Conduit Investor through purchase pursuant to the
terms of a Liquidity Provider Agreement.
"PURCHASE TERMINATION DATE" means the date upon which the Transferor
shall cease, for any reason whatsoever, to make purchases of Receivables from
the Seller under the Receivables Purchase Agreement or the Receivables Purchase
Agreement shall terminate for any reason whatsoever.
"RATABLE SHARE" means (i) in the case of a Conduit Investor in any
Related Group, a fraction (expressed as a percentage) equal to the Related Group
Limit of such Related Group divided by the Facility Limit, (ii) in the case of a
Class A Bank Investor, a fraction (expressed as a percentage) equal to such
Class A Bank Investor's Commitment divided by the sum of the Commitments of all
Class A Bank Investors (including Class A Bank Investors from other Related
Groups) and (iii) in the case of a Class B Investor, a fraction (expressed as a
percentage) equal to such Class B Investor's Commitment divided by the
Commitments of all Class B Investors.
"RATE VARIANCE FACTOR" means the number, computed from time to time in
good faith by the Agent (with the written consent of each Administrative Agent),
that reflects the largest potential variance (from minimum to maximum) in
selected interest rates over a period of time selected by the Agent from time to
time, set forth in written notice by the Agent to each Administrative Agent, the
Transferor and the Collection Agent.
"RATING AGENCY" means, at any time, Moody's, S&P or any other rating
agency chosen by a Conduit Investor or its Related CP Issuer to rate its
commercial paper notes at such time.
"RECEIVABLE" means the indebtedness of any Obligor under a Contract
and sold by the Seller to the Transferor pursuant to the Receivables Purchase
Agreement, whether constituting an account, chattel paper, instrument, insurance
claim, investment property or general intangible, arising in connection with the
sale or lease of merchandise, or the rendering of services, by an Originating
Entity, and includes the right to payment of any Finance Charges and other
obligations of such Obligor with respect thereto.
"RECEIVABLE SYSTEMS" has the meaning specified in Section 3.1(aa).
"RECEIVABLES PURCHASE AGREEMENT" means the Receivables Purchase
Agreement dated as of August 28, 1997 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.
26
"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.
"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" shall mean Commercial Paper issued by a
Conduit Investor or its Related CP Issuer the proceeds of which were used to
acquire, or refinance the acquisition of, an interest in Receivables with
respect to the Transferor.
"RELATED CP ISSUER" means, when used in relation to Compass, Compass
Securitization L.L.C., a Delaware limited liability company, together with its
successors and permitted assigns.
"RELATED GROUP" means any of the following groups: (i) Enterprise, as
a Conduit Investor, Landesbank Hessen-Thueringen Girozentrale, as a Class A Bank
Investor, and Bank of America, N.A., as a Class A Bank Investor and as an
Administrative Agent, together with their respective successors and permitted
assigns, (ii) Compass, as a Conduit Investor, Landesbank Hessen-Thueringen
Girozentrale, as a Class A Bank Investor and WestLB, as a Class A Bank Investor
and as an Administrative Agent, together with their respective successors and
permitted assigns, (iii) GMFC, as a Conduit Investor, and BLB, as a Class A Bank
Investor and as an Administrative Agent, together with their respective
successors and permitted assigns and (iv) the Class B Investors and Bank of
America, as Administrative Agent for the Class B Investors, together with their
respective successors and permitted assigns.
"RELATED GROUP LIMIT" means, with respect to any Related Group, the
aggregate Commitments of the Class A Bank Investors or the Class B Investors, as
applicable, 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;
27
(ii) all other security interests or liens and property subject
thereto from time to time, if any, purporting to secure payment of such
Receivable, whether pursuant to the Contract related to such Receivable or
otherwise, together with all financing statements signed by an Obligor
describing any collateral securing such Receivable;
(iii) all guarantees, indemnities, warranties, insurance (and
proceeds and premium refunds thereof) or other agreements or arrangements
of any kind from time to time supporting or securing payment of such
Receivable whether pursuant to the Contract related to such Receivable or
otherwise, including, without limitation, insurance, guaranties and other
agreements or arrangements under the Medicare program, the Medicaid
program, state renal programs, CHAMPUS/VA, private insurance policies, and
hospital and other health care programs and health care provider
arrangements;
(iv) all Records related to such Receivable;
(v) all rights and remedies of the Transferor (A) under the
Receivables Purchase Agreement, together with all financing statements
filed by the Transferor against the Seller in connection therewith, (B)
under the Transferring Affiliate Letter, together with all financing
statements filed in connection therewith against the Transferring
Affiliates, (C) under the BMA Transfer Agreement, together with all
financing statements filed in connection therewith against BMA and (D)
under the Parent Agreement; and
(vi) all Proceeds of any of the foregoing.
"REQUIRED ADMINISTRATIVE AGENTS" means each Administrative Agent;
PROVIDED that (i) for so long as the Percentage Factor exceeds 100%, the
"Required Administrative Agents" shall mean each Administrative Agent other than
the Administrative Agent for the Class B Related Group and (ii) if the
Termination Date has occurred hereunder and the Class A Aggregate Unpaids have
been paid in full, then the "Required Administrative Agents" shall mean the
Administrative Agent for the Class B Related Group.
"SECTION 8.2 COSTS" has the meaning specified in Section 8.2(d)
hereof.
"SELLER" means NMC and its successors and permitted assigns.
"SERVICING FEE" means the fees payable by the Investors in a Related
Group to the Collection Agent, with respect to a Tranche held by the Investors
in such Related Group, in an amount equal to 0.25% per annum on the amount of
the Net Investment allocated to such Tranche pursuant to Section 2.3 hereof.
Such fee shall accrue from the date of the initial purchase of an interest in
the Receivables to the date on which the Percentage Factor is reduced to zero.
Such fee shall be payable only from Collections pursuant to, and subject to the
priority of payments set forth in, Section 2.5 hereof. After the Termination
Date, such fee shall be payable only from Collections pursuant to, and subject
to the priority of payments set forth in, Section 2.6 hereof.
28
"SERVICING FEE RESERVE" means at any time an amount equal to the
product of (i) the aggregate Outstanding Balance of all Receivables at such
time, (ii) the Servicing Fee percentage and (iii) a fraction having as the
numerator, the sum of (a) the Estimated Maturity Period PLUS (b) the Collection
Delay Period, and as the denominator, 360.
"SOCIAL SECURITY ACT" means the Social Security Act, as amended from
time to time, and the regulations promulgated and rulings and advisory opinions
issued thereunder.
"SPECIAL ACCOUNT" means a special depositary account maintained at a
bank acceptable to the Agent for the purpose of receiving Collections, which
account is in the name of either (i) the Originating Entity in respect of the
Receivables giving rise to such Collections or (ii) a Designated Account Agent
acting on behalf of such Originating Entity.
"SPECIAL ACCOUNT BANK" means any of the banks holding one or more
Special Accounts.
"SPECIAL ACCOUNT LETTER" means a letter, in substantially the form of
Exhibit D-1 hereto, from an Originating Entity (or, if applicable, a Designated
Account Agent) to any Special Account Bank, executed by such Originating Entity
(or such Designated Account Agent) to such Special Account Bank.
"SPECTRA RENAL MANAGEMENT GROUP" means, collectively, Spectra East,
Inc., a Delaware corporation, Spectra Laboratories, Inc., a Nevada corporation,
as Transferring Affiliates, and their respective successors.
"STANDARD & POOR'S" or "S&P" means Standard & Poor's Ratings Services,
a division of ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"SUBORDINATED NOTE" shall have the meaning specified in the
Receivables Purchase Agreement.
"SUBSIDIARY" of a Person means any Person more than 50% of the
outstanding voting interests of which shall at any time be owned or controlled,
directly or indirectly, by such Person or by one or more Subsidiaries of such
Person or any similar business organization which is so owned or controlled.
"TAXES" shall have the meaning specified in Section 8.3 hereof.
"TERMINATION DATE" means the earliest of (i) the Business Day
designated by the Transferor to each Administrative Agent as the Termination
Date at any time following 60 days' written notice to each Administrative Agent,
(ii) the date of termination of the commitment of any Liquidity Provider under a
Liquidity Provider Agreement, (iii) the date of termination of the commitment of
any Credit Support Provider under a Credit Support Agreement, (iv) the day upon
which the Termination Date is declared or automatically occurs pursuant to
Section 7.2(a) hereof, (v) two Business Days prior to the Commitment Termination
Date, (vi) the day on which
29
a Reinvestment Termination date shall occur, (vii) the Purchase Termination
Date, or (viii) October 24, 2002.
"TERMINATION EVENT" means an event described in Section 7.1 hereof.
"TRANCHE" means a portion of the Net Investment allocated to a Tranche
Period pursuant to Section 2.3 hereof.
"TRANCHE PERIOD" means a CP Tranche Period, a BR Tranche Period or a
Eurodollar Tranche Period.
"TRANCHE RATE" means the CP Rate, the Base Rate or the Eurodollar
Rate.
"TRANSACTION COSTS" has the meaning specified in Section 8.4(a)
hereof.
"TRANSACTION DOCUMENTS" means, collectively, this Agreement, the
Receivables Purchase Agreement, the Fee Letters, the Special Account Letters,
the Concentration Account Agreement, the Account Agent Agreement(s), the
Certificates, the Transfer Certificates, the Transferring Affiliate Letter, the
BMA Transfer Agreement, the Parent Agreement and all of the other instruments,
documents and other agreements executed and delivered by any Originating Entity,
FMC, FMCH, NMC or the Transferor in connection with any of the foregoing, in
each case, as the same may be amended, restated, supplemented or otherwise
modified from time to time.
"TRANSFER" means a conveyance, transfer and assignment by the
Transferor to the Agent, for the benefit of the Investors, of an undivided
percentage ownership interest in Receivables hereunder together with Related
Security, Collections and Proceeds with respect thereto (including, without
limitation, as a result of any reinvestment of Collections in Transferred
Interests pursuant to Sections 2.2(b) and 2.5).
"TRANSFER CERTIFICATE" has the meaning specified in Section 2.2(a)
hereof.
"TRANSFER DATE" means, with respect to each Transfer, the Business Day
on which such Transfer is made.
"TRANSFER PRICE" means with respect to any Incremental Transfer to be
made by the Agent, on behalf of the Investors participating in such Incremental
Transfer, the amount paid to the Transferor by such Investors as described in
the applicable Transfer Certificate.
"TRANSFEROR" means NMC Funding Corporation, a Delaware corporation,
and its successors and permitted assigns.
"TRANSFERRED INTEREST" means, at any time of determination, an
undivided percentage ownership interest in (i) each and every then outstanding
Receivable, (ii) all Related Security with respect to each such Receivable,
(iii) all Collections with respect thereto, and (iv)
30
other Proceeds of the foregoing, which undivided ownership interest shall be
equal to (x) at all times that any Class B Net Investment is outstanding, 100%
and (y) at any other time the Percentage Factor at such time, and only at such
time (without regard to prior calculations). The Transferred Interest in each
Receivable, together with Related Security, Collections and Proceeds with
respect thereto, shall at all times be equal to the Transferred Interest in each
other Receivable, together with Related Security, Collections and Proceeds with
respect thereto. To the extent that the Transferred Interest shall decrease as a
result of a recalculation of the Percentage Factor, the Agent, on behalf of the
applicable Investors, shall be considered to have reconveyed to the Transferor
(without recourse, representation or warranty of any type or kind) an undivided
percentage ownership interest in each Receivable, together with Related
Security, Collections and Proceeds with respect thereto, in an amount equal to
such decrease such that in each case the Transferred Interest in each Receivable
shall be equal to the Transferred Interest in each other Receivable.
"TRANSFERRING AFFILIATE" means a company specified on Exhibit Q
hereto, as such Schedule may be amended from time to time as provided in Section
2.15; PROVIDED, HOWEVER, that no such company shall be a Transferring Affiliate
from and after the occurrence of any Event of Bankruptcy by or with respect
thereto unless any Receivables that arose from sales by such company exist on
such date, in which case such company shall continue to be a Transferring
Affiliate until the respective Outstanding Balances of all such Receivables
shall have been reduced to zero; and PROVIDED, FURTHER, that, solely with
respect to the Receivables transferred by it to the Seller pursuant to the BMA
Transfer Agreement, BMA shall constitute a "Transferring Affiliate" hereunder.
"TRANSFERRING AFFILIATE LETTER" means, collectively, the respective
letters, in each case in substantially the form of Exhibit O hereto, from the
Transferring Affiliates (other than BMA) to the Agent, the Transferor and the
Seller, as the same may be amended, restated, supplemented or otherwise modified
from time to time with the consent of the Agent.
"UCC" means, with respect to any state, the Uniform Commercial Code as
from time to time in effect in such state.
"U.S." or "UNITED STATES" means the United States of America.
"US GOVERNMENT OBLIGOR" means any Obligor that is the federal
government of the United States, or any subdivision or agency thereof the
obligations of which are supported by the full faith and credit of the United
States, and shall include any Obligor referred to in clause (A),(B) or (F) of
the definition of "Obligor" contained in this Section 1.1.
"VOTING STOCK" means, with respect to any Person, capital stock issued
by such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even though the right so to vote
has been suspended by the happening of such a contingency.
31
"WESTLB" means WestLB AG, New York Branch (formerly known as
Westdeutsche Landesbank Girozentrale, New York Branch), together with its
successors and 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, 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.
ARTICLE II
PURCHASE AND SETTLEMENTS
SECTION 2.1. FACILITY. Upon the terms and subject to the conditions
herein set forth, the Transferor may from time to time prior to the Termination
Date, at its option, convey, transfer and assign to the Agent, on behalf of the
Investors, without recourse except as provided herein, percentage ownership
interests in the Receivables, together with Related Security, Collections and
Proceeds with respect thereto. Each such Transfer that is to be funded by the
Class A Related Groups shall be funded by such Related Groups ratably in
accordance with their respective Related Group Limits. Subject to the terms and
conditions set forth herein, the Agent shall accept such conveyance, transfer
and assignment on behalf of the Investors. By accepting any conveyance, transfer
and assignment hereunder, none of the Investors, the Administrative Agents or
the Agent assumes or shall have any obligations or liability under any of the
Contracts, all of which shall remain the obligations and liabilities of the
Transferor and the Seller.
SECTION 2.2. TRANSFERS; CERTIFICATES; ELIGIBLE RECEIVABLES (a)
INCREMENTAL TRANSFERS. Upon the terms and subject to the conditions herein set
forth the Transferor may, at its option, request that an Incremental Transfer be
made by the Agent, on behalf of each of the applicable Investors. It shall be a
condition precedent to each Incremental Transfer that (i) after giving effect to
the payment to the Transferor of the applicable Transfer Price and, if
applicable, the application of the proceeds thereof pursuant to Section 2.2(g),
(x)
32
the sum of the Net Investment PLUS the Interest Component of all outstanding
Related Commercial Paper, would not exceed the Facility Limit, (y) the
Percentage Factor would not exceed the Maximum Percentage Factor and (z) the Net
Investment would not exceed the Maximum Net Investment; (ii) the representations
and warranties set forth in Section 3.1 shall be true and correct both
immediately before and immediately after giving effect to any such Incremental
Transfer and the payment to the Transferor of the Transfer Price related
thereto; (iii) an Investor Report shall have been delivered prior to such
Incremental Transfer as required by Section 3.2 hereof; (iv) in the case of any
Incremental Transfer to be funded by the Class A Bank Investors in any Related
Group, either (x) such Class A 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 and (v) in the case of an Incremental Transfer to be funded
by the Class B Investors, after giving effect to the payment to the Transferor
of the applicable Transfer Price (x) the Class B Net Investment would not exceed
the Class B Facility Limit in effect at such time and (y) the Class A Net
Investment is equal to the Maximum Class A Net Investment.
The Transferor shall, by notice to the Agent (with a copy to each
Administrative Agent or, in the case of a transfer solely to the Class B
Investors, with a copy to the Administrative Agent for the Class B Related
Group) given by telecopy, offer to convey, transfer and assign to the Agent, on
behalf of the Investors, undivided percentage ownership interests in the
Receivables and the other Affected Assets relating thereto at least three (3)
Business Days prior to the proposed date of any Incremental Transfer. Each such
notice shall specify (v) whether such Incremental Transfer is to be funded by
the Class B Related Group or the Class A Related Groups, (w) with respect to
each Class A Related Group, whether such request is made to the Agent, on behalf
of the Conduit Investor in such Related Group or on behalf of the Class A Bank
Investors in such Related Group (it being understood and agreed that once any
Transferred Interest hereunder is acquired on behalf of the Class A Bank
Investors in any Related Group, the Agent, on behalf of Class A Bank Investors
in such Related Group, shall be required to purchase all Transferred Interests
held by the Agent on behalf of the Conduit Investor in such Related Group in
accordance with Section 9.7 and thereafter no additional Incremental Transfers
shall be acquired on behalf of such Conduit Investor hereunder), (x) the desired
Transfer Price (which shall be at least $1,000,000 or integral multiples of
$250,000 in excess thereof) or, to the extent that the then available unused
portion of the Facility Limit is less than such amount, such lesser amount equal
to such available portion of the Facility Limit, (y) the desired date of such
Incremental Transfer and (z) the desired Tranche Period(s) and allocations of
the Net Investment of such Incremental Transfer thereto as required by Section
2.3. Each Administrative Agent will promptly notify the related Conduit Investor
or each of the Class A Bank Investors or Class B Investors in its Related Group,
as the case may be, of such Administrative Agent's receipt of any request for an
Incremental Transfer to be made to the Agent on behalf of such Person. To the
extent that any such Incremental Transfer is requested of the Agent, on behalf
of a Conduit Investor, such Conduit Investor shall instruct the Agent to accept
or reject such offer by notice given to the Transferor and the Agent by
telephone or telecopy by no later than the close of its business on the Business
Day following its receipt of any such request. Each notice of proposed
33
Transfer shall be irrevocable and binding on the Transferor and the Transferor
shall indemnify each Investor against any loss or expense incurred by any
Investor, either directly or indirectly (including, in the case of a Conduit
Investor, through the related Liquidity Provider Agreement) as a result of any
failure for any reason (including failure to satisfy any of the conditions
precedent in respect thereof) by the Transferor to complete such Incremental
Transfer including, without limitation, any loss (including loss of anticipated
profits) or expense incurred by any Investor, either directly or indirectly
(including, in the case of a Conduit Investor, pursuant to the related Liquidity
Provider Agreement) by reason of the liquidation or reemployment of funds
acquired by any Investor or a related Liquidity Provider (including, without
limitation, funds obtained by issuing commercial paper or promissory notes or
obtaining deposits as loans from third parties) for any Investor to fund such
Incremental Transfer.
The Transferor has previously delivered to the Agent the Transfer
Certificate in the form of Exhibit F hereto (the "Transfer Certificate"). On the
date of each Incremental Transfer, each Administrative Agent whose Related Group
is to participate in such Incremental Transfer shall send written confirmation
to the Transferor and to the Agent of the Transfer Price, the Tranche Period(s),
the Transfer Date and the Tranche Rate(s) applicable to the portion of such
Incremental Transfer made by such Administrative Agent's Related Group. The
Agent shall indicate the amount of the Incremental Transfer together with the
date thereof as well as any decrease in the Net Investment on the grid attached
to the Transfer Certificate. The Transfer Certificate shall evidence the
Incremental Transfers.
By no later than 11:00 a.m. (New York time) on any Transfer Date, each
Investor participating in the relevant Transfer shall remit its Ratable Share of
the aggregate Transfer Price for such Transfer to the account of the Agent
specified therefor from time to time by the Agent by notice to such Investor.
The obligation of each Investor to remit its Ratable Share of any such Transfer
Price shall be several from that of each other Investor, and the failure of any
Investor to so make such amount available to the Agent shall not relieve any
other Investor of its obligation hereunder. Following each Incremental Transfer
and the Agent's receipt of funds from the Investors participating in such
Transfer as aforesaid, the Agent shall remit the Transfer Price to the
Transferor's account at the location indicated in Section 10.3 hereof, in
immediately available funds, an amount equal to the Transfer Price for such
Incremental Transfer. Unless the Agent shall have received notice from any Class
A Bank Investor or Class B Investor participating in an Incremental Transfer
that such Class A Bank Investor or Class B Investor will not make its share of
any Transfer Price relating to such Incremental Transfer available on the
applicable Transfer Date therefor, the Agent may (but shall have no obligation
to) make such Class A Bank Investor's or Class B Investor's share of any such
Transfer Price available to the Transferor in anticipation of the receipt by the
Agent of such amount from such Class A Bank Investor or Class B Investor. To the
extent such Class A Bank Investor or Class B Investor fails to remit any such
amount to the Agent after any such advance by the Agent on such Transfer Date,
such Class A Bank Investor or Class B 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 Class A Bank Investor or Class B Investor, or the
34
Base Rate, in the case of the Transferor, to the Agent upon its demand therefor.
Until such amount shall be repaid, such amount shall be deemed to be Net
Investment paid by the Agent and the Agent shall be deemed to be the owner of a
Transferred Interest hereunder. Upon the payment of such amount to the Agent (x)
by the Transferor, the amount of the aggregate Net Investment shall be reduced
by such amount or (y) by such Class A Bank Investor or Class B Investor, such
payment shall constitute such Class A Bank Investor's or Class B Investor's
payment of its share of the applicable Transfer Price for such Transfer.
(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 Class A Bank Investors and the Class B
Investors, agree to purchase from the Transferor undivided percentage ownership
interests in each and every Receivable, together with Related Security,
Collections and Proceeds with respect thereto, to the extent that Collections
are available for such Transfer in accordance with Section 2.5 hereof, such that
after giving effect to such Transfer, (i) the amount of the Net Investment at
the close of business on such Business Day shall be equal to the amount of the
Net Investment at the close of the business on the Business Day immediately
preceding such Business Day plus the Transfer Price of any Incremental Transfer
made on such day, if any, and (ii) the Transferred Interest in each Receivable,
together with Related Security, Collections and Proceeds with respect thereto,
shall be equal to the Transferred Interest in each other Receivable, together
with Related Security, Collections and Proceeds with respect thereto.
(c) ALL TRANSFERS. Each Transfer shall constitute a purchase by
the Agent, on behalf of the Investors, of undivided percentage ownership
interests in each and every Receivable, together with Related Security,
Collections and Proceeds with respect thereto, then existing, as well as in each
and every Receivable, together with Related Security, Collections and Proceeds
with respect thereto, which arises at any time after the date of such Transfer.
The Agent's aggregate undivided percentage ownership interest in the
Receivables, together with the Related Security, Collections and Proceeds with
respect thereto, held on behalf of the Investors, shall equal (i) at all times
that any Class B Net Investment is outstanding, 100% and (ii) at all other
times, the Percentage Factor in effect from time to time. The Agent shall hold
the Transferred Interests on behalf of the Investors in accordance with each
such Investor's percentage interest in the Transferred Interest (determined on
the basis of the relationship that the portion of the Net Investment funded by
such Investor bears to the aggregate Net Investment of all Investors at such
time); PROVIDED that the percentage interests of the Class B Investors shall be
subordinate to the percentage interests of the Class A Investors as provided
herein.
35
(d) CERTIFICATE. The Transferor has issued to the Agent the
Certificate, in the form of Exhibit M. The Certificate remains in full force and
effect and is hereby ratified and confirmed.
(e) PERCENTAGE FACTOR. The Percentage Factor shall be computed
by the Collection Agent as of the opening of business of the Collection Agent on
the effective date of this Agreement. Thereafter until the Termination Date, the
Collection Agent shall recompute the Percentage Factor at the time of each
Incremental Transfer pursuant to Section 2.2(a) and as of the close of business
of the Collection Agent on each Business Day (other than a day after the
Termination Date) and report such recomputation to the Agent monthly, in the
Investor Report, and at such other times as may be requested by the Agent. The
Percentage Factor shall remain constant from the time as of which any such
computation or recomputation is made until the time as of which the next such
recomputation, if any, shall be made, notwithstanding any additional Receivables
arising, any Incremental Transfer made pursuant to Section 2.2(a) or any
Reinvestment Transfer made pursuant to Sections 2.2(b) and 2.5 during any period
between computations of the Percentage Factor. The Percentage Factor, as
computed as of the close of business on the Business Day immediately preceding
the Termination Date, shall remain constant at all times on and after the
Termination Date until the date on which the Net Investment has been reduced to
zero, and all accrued Discount and Servicing Fees have been paid in full and all
other Aggregate Unpaids have been paid in full at which time the Percentage
Factor shall be recomputed in accordance with Section 2.6.
(f) REDUCTION OF CLASS B FACILITY LIMIT. The Transferor may at
any time, upon at least five Business Days' notice to the Agent and the
Administrative Agent for the Class B Related Group, reduce the Related Group
Limit for the Class B Related Group to zero or, from time to time, reduce in
part the unused portion of such Related Group Limit; PROVIDED that each partial
reduction of such Related Group Limit shall be in the amount of at least
$5,000,000 or an integral multiple thereof. In no event may such Related Group
Limit be reduced to an amount less than the Class B Net Investment. Any
reduction or termination of the Related Group Limit for the Class B Related
Group pursuant to this Section 2.2(f) shall reduce ratably or terminate each
Class B Investor's Commitment.
(g) REFINANCING OF CLASS B NET INVESTMENT. If any Incremental
Transfer is requested to be made hereunder by the Investors in the Class A
Related Groups at a time when any Class B Net Investment is outstanding, the
Transferor hereby directs the Agent to pay the Transfer Price for such
Incremental Transfer to the Administrative Agent for the Class B Related Group,
for application to the reduction of the Class B Net Investment. In addition, for
so long as any Class B Net Investment is outstanding hereunder, the Transferor
hereby agrees that it shall, to the maximum extent it is permitted to do so
under this Agreement, request Incremental Transfers to be funded by the Class A
Investors on the last day of each Tranche Period relating to the Class B Net
Investment in an amount equal to the lesser of (i) the amount of the Class B Net
Investment allocated to such Tranche Period and (ii) the excess, if any, of the
Maximum Class A Net Investment over the Class A Net Investment outstanding as of
such date; PROVIDED that no such Incremental Transfer shall be required in an
amount less than $5,000,000 and integral
36
multiples of $1,000,000 in excess thereof; and PROVIDED FURTHER that no such
Incremental Transfer shall be permitted or required within 30 days of the then
current Commitment Termination Date or at any time that a Termination Event or
Potential Termination Event has occurred and is continuing.
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 Transferred Interest held on
behalf of a Conduit Investor, the Transferor may, subject to such Conduit
Investor's approval and the limitations described below, request Tranche Periods
and allocate a portion of the Net Investment held by such Conduit Investor to
each selected Tranche Period, so that the aggregate amounts allocated to
outstanding Tranche Periods with respect to such Conduit Investor at all times
shall equal the Net Investment held on behalf of such Conduit Investor. The
Transferor shall give each Conduit Investor irrevocable notice by telephone of
the new requested Tranche Period(s) applicable to such Conduit Investor at least
three (3) Business Days prior to the expiration of any then existing Tranche
Period with respect to such Conduit Investor; PROVIDED, HOWEVER, that each
Conduit Investor may select, in its sole discretion, any such new Tranche Period
if (i) the Transferor fails to provide such notice on a timely basis or (ii)
such Conduit Investor determines, in its sole discretion, that the Tranche
Period requested by the Transferor is unavailable or for any reason commercially
undesirable. 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 one or
more CP Tranche Periods, provided that such Conduit Investor may determine, from
time to time, in its sole discretion, that funding such Net Investment by means
of one or more CP Tranche Periods is not possible or is not desirable for any
reason. If any Liquidity Provider acquires from a Conduit Investor a Purchased
Interest with respect to the Receivables pursuant to the terms of a Liquidity
Provider Agreement, then the Administrative Agent for such Conduit Investor, on
behalf of the applicable Liquidity Provider, may exercise the right of selection
granted to such Conduit Investor hereby. The initial Tranche Period applicable
to any such Purchased Interest shall be a period of not greater than 14 days and
such Tranche shall be a BR Tranche. Thereafter, provided that the Termination
Date shall not have occurred, the Tranche Period applicable thereto shall be the
BR Rate or the Eurodollar Rate, as determined by the applicable Administrative
Agent. In the case of any Tranche Period outstanding upon the Termination Date,
such Tranche Period shall end on such date.
(b) AFTER THE TERMINATION DATE; TRANSFERRED INTEREST HELD ON
BEHALF OF A CONDUIT INVESTOR. At all times on and after the Termination Date,
with respect to any portion of the Transferred Interest which shall be held by
the Agent 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 CLASS A BANK INVESTOR OR CLASS B INVESTOR. At all times with respect
to any portion of the Transferred Interest held by the Agent on behalf of the
Class A Bank Investors or the Class B
37
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 14 days and such Tranche shall be
a BR Tranche; PROVIDED that if so requested by the Transferor in the relevant
notice delivered pursuant to Section 2.2 not less than three Business Days prior
to the applicable Transfer Date, the initial Tranche Period for any portion of
the Net Investment held by the Class B Investors may be a period of one month
and such Tranche may be a Eurodollar Tranche. Thereafter, with respect to such
portion, and with respect to any other portion of the Transferred Interest held
on behalf of the Class A Bank Investors or the Class B 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, at the Transferor's
option, either a BR Tranche or a Eurodollar Tranche. The Transferor shall give
the Administrative Agent for each Related Group irrevocable notice by telephone
of the new requested Tranche Period applicable to the Class A Bank Investors or
the Class B Investors in such Related Group (as applicable) 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, the applicable Administrative Agent on behalf of the Class A Bank
Investors or the Class B Investors in such Related Group (as applicable) may, in
its sole discretion, select the new Tranche Period in respect of the applicable
Tranche. In the case of any Tranche Period outstanding upon the occurrence of
the Termination Date, such Tranche Period shall end on the date of such
occurrence.
(d) AFTER THE TERMINATION DATE; TRANSFERRED INTEREST HELD ON
BEHALF OF CLASS A BANK INVESTOR OR CLASS B 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 Class A Bank Investors or the Class B
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
38
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.
(iii) Notwithstanding any other provision of this Agreement, if any
Investor shall notify its Administrative Agent that such Investor has determined
(or has been notified by any Liquidity Provider) that the introduction of or any
change in or in the interpretation of any law or regulation makes it unlawful
(either for such Investor or such Liquidity Provider, as applicable), or any
central bank or other governmental authority asserts that it is unlawful, for
such Investor or such Liquidity Provider, as applicable, to fund the purchases
or maintenance of Transferred Interests at the Eurodollar Rate, then (x) as of
the effective date of such notice from such Investor to its Administrative
Agent, the obligation or ability of the such Investor to fund its purchase or
maintenance of Transferred Interests at the Eurodollar Rate shall be suspended
until such Investor notifies its Administrative Agent that the circumstances
causing such suspension no longer exist and (y) the Net Investment of each
Eurodollar Tranche in which such Investor owns an interest shall either (1) if
such Investor may lawfully continue to maintain such Transferred Interest at the
Eurodollar Rate until the last day of the applicable Tranche Period, be
reallocated on the last day of such Tranche Period to another Tranche Period in
respect of which the Net Investment allocated thereto accrues Discount at a
Tranche Rate other than the Eurodollar Rate or (2) if such Investor shall
determine that it may not lawfully continue to maintain such Transferred
Interest at the Eurodollar Rate until the end of the applicable Tranche Period,
such Investor's share of the Net Investment allocated to such Eurodollar Tranche
shall be deemed to accrue Discount at the Base Rate from the effective date of
such notice until the end of such Tranche Period.
(f) SEPARATE TRANCHES FOR RELATED GROUPS. In no event shall portions
of the Net Investment held by Investors from different Related Groups be
allocated to the same Tranche.
SECTION 2.4. DISCOUNT, FEES AND OTHER COSTS AND EXPENSES.
Notwithstanding any limitation on recourse contained herein, the Transferor
shall pay, as and when due in accordance with this Agreement, all fees
hereunder, Discount (including Discount due any Conduit Investor, any Class A
Bank Investor or any Class B Investor), all amounts payable pursuant to Article
VIII hereof, if any, and the Servicing Fees. On the last day of each 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
39
Incremental Transfer. The Transferor shall pay to each Administrative Agent, on
behalf of the applicable Conduit Investor, on each day on which Related
Commercial Paper is issued by such Conduit Investor or its Related CP Issuer
(or, if so provided in the applicable Fee Letter, on the last day of each
Tranche Period), the Dealer Fee. Discount shall accrue with respect to each
Tranche on each day occurring during the Tranche Period related thereto. Nothing
in this Agreement shall limit in any way the obligations of the Transferor to
pay the amounts set forth in this Section 2.4.
SECTION 2.5. NON-LIQUIDATION SETTLEMENT AND REINVESTMENT PROCEDURES.
On each day after the date of any Incremental Transfer but prior to the
Termination Date and provided that no Potential Termination Event shall have
occurred and be continuing, the Collection Agent shall, out of Collections
received on or prior to such day and not previously applied or accounted for:
(i) set aside and hold in trust for the Agent, on behalf of the applicable
Investors (or deposit into the Collection Account if so required pursuant to
Section 2.12 hereof), an amount equal to all Discount and the Servicing Fee
accrued through such day and not so previously set aside or paid and (ii) apply
the balance of such Collections remaining after application of Collections as
provided in clause (i) of this Section 2.5 hereof to the Transferor, for the
benefit of the Agent, on behalf of the applicable Investors, to the purchase of
additional undivided percentage interests in each Receivable pursuant to Section
2.2(b) hereof. Any Collections so set aside as described in clause (i) above
shall be allocated, FIRST, among the Class A Related Groups ratably in
proportion to the accrued Discount and Servicing Fee with respect to the
Investors in each such Related Group until the amount so set aside is equal to
the total amount of Discount and Servicing Fee accrued for all Investors in the
Class A Related Groups and, SECOND, to the Class B Related Group. On the last
day of each Tranche Period applicable to any portion of the Net Investment held
by one or more Investors in a Related Group, from the amounts set aside as
described in clause (i) of the first sentence of this Section 2.5 hereof that
have been allocated to the Investors in such Related Group, the Collection Agent
shall deposit to the applicable Administrative Agent's account, for the benefit
of such Investors, an amount equal to the accrued and unpaid Discount for such
Tranche Period and shall deposit to its own account an amount equal to the
accrued and unpaid Servicing Fee for such Tranche Period. The applicable
Administrative Agent, upon its receipt of such amounts in such Administrative
Agent's account, shall distribute such amounts to the applicable Investors
entitled thereto as set forth above; PROVIDED that if such Administrative Agent
shall have insufficient funds to pay all of the above amounts in full on any
such date, such Administrative Agent shall pay such amounts ratably (based on
the amounts owing to each such Investor) to all such Investors entitled to
payment thereof. In addition, the Collection Agent shall remit to the Transferor
at the end of each Tranche Period, such portion of Collections not allocated to
the Agent, on behalf of the applicable Investors.
SECTION 2.6. LIQUIDATION SETTLEMENT PROCEDURES. (a) If at any time on
or prior to the Termination Date, the Percentage Factor is greater than the
Maximum Percentage Factor, then the Transferor shall immediately pay to the
Administrative Agents for the Class A Related Groups (or, if the Class A Net
Investment has been reduced to zero, to the Administrative Agent for the Class B
Related Group), for the benefit of the applicable Investors
40
in their respective Related Groups, from previously received Collections, an
aggregate amount equal to the amount such that, when applied in reduction of the
Net Investment, will result in the Percentage Factor being less than or equal to
the Maximum Percentage Factor. In the case of any such payment to the
Administrative Agents for the Class A Related Groups, such aggregate amount
shall be paid to such Administrative Agents ratably in accordance with portion
of the Net Investment held by their respective Related Groups. Any amount so
paid to an Administrative Agent for a Related Group shall be applied to the
reduction of the Net Investment of Tranche Periods applicable to such Related
Group selected by such Administrative Agent.
(b) On the Termination Date and on each day thereafter, and on each
day on which a Termination Event or a Potential Termination Event has occurred
and is continuing, the Collection Agent shall set aside and hold in trust for
the Agent, on behalf of the Investors (or deposit into the Collection Account if
so required pursuant to Section 2.12 hereof) all Collections received on such
day. The Collections so set aside shall be allocated, FIRST, among the Class A
Related Groups ratably in accordance with the portion of the Net Investment (or,
if the Class A Net Investment has been reduced to zero, the portion of the Class
A Aggregate Unpaids) held by each such Related Group until the Class A Aggregate
Unpaids are paid in full; and, SECOND, to the Class B Related Group. On the
Termination Date or the day on which a Termination Event or Potential
Termination Event has occurred and is continuing, the Collection Agent shall
deposit to each Administrative Agent's account, for the benefit of the
applicable Investors, any amounts set aside pursuant to Section 2.5 above which
have been allocated to such Administrative Agent's Related Group as described in
Section 2.5. On the last day of each Tranche Period to occur on or after the
Termination Date, during the continuance of a Termination Event or Potential
Termination Event, the Collection Agent shall deposit to each Administrative
Agent's account to the extent not already so deposited, for the benefit of the
applicable Investors in its Related Group, the amounts so set aside that have
been allocated to the Investors in such Related Group pursuant to this Section
2.6, but not to exceed the sum of (i) the accrued Discount for such Tranche
Period, (ii) the portion of the Net Investment allocated to such Tranche Period,
and (iii) all other Aggregate Unpaids. On such day, the Collection Agent shall
deposit to its account, from the amounts so allocated to the Investors in such
Related Group pursuant to the preceding sentence which remain after payment in
full of the aforementioned amounts, the accrued Servicing Fee for such Tranche
Period. If with respect to any Tranche Period there shall be insufficient funds
on deposit for the Collection Agent to distribute funds in payment in full of
the aforementioned amounts, the Collection Agent shall distribute funds FIRST,
in payment of the accrued Discount for such Tranche Period, SECOND, if the
Transferor, the Seller or any Affiliate of the Transferor or the Seller is not
then the Collection Agent, to the Collection Agent's account, in payment of the
Servicing Fee payable to the Collection Agent to the extent allocable to such
Tranche Period, THIRD, in reduction of the Net Investment allocated to such
Tranche Period FOURTH, in payment of all fees payable by the Transferor
hereunder to the members of the relevant Related Group, FIFTH, in payment of all
other Aggregate Unpaids owing to the members of such Related Group and SIXTH, if
the Transferor, the Seller or any Affiliate of the Transferor or the Seller is
the Collection Agent, to its account as Collection Agent, in payment of the
Servicing Fee payable to such Person as Collection Agent to the extent such
Servicing Fee is allocable to such Tranche Period. The applicable Administrative
Agent, upon its receipt of such amounts in
41
such Administrative Agent's account, shall distribute such amounts to the
Investors in its Related Group entitled thereto as set forth above; PROVIDED
that if such Administrative Agent shall have insufficient funds to pay all of
the above amounts in full on any such date, such Administrative Agent shall pay
such amounts in the order of priority set forth above and, with respect to any
such category above for which such Administrative Agent shall have insufficient
funds to pay all amounts owing on such date, ratably (based on the amounts in
such categories owing to such Persons) among all such Persons entitled to
payment thereof. For purposes of this Section 2.6, the Agent shall be deemed to
be a member of the Related Group that includes Enterprise.
(c) Following the later to occur of the Termination Date and the date
on which the Net Investment has been reduced to zero, all accrued Discount and
Servicing Fees have been paid in full and all other Aggregate Unpaids have been
paid in full, (i) the Collection Agent shall recompute the Percentage Factor,
(ii) the Agent, on behalf of the Investors, shall be considered to have
reconveyed to the Transferor all of the right, title and interest in and to the
Affected Assets (including the Transferred Interest) without recourse,
representation or warranty of any type or kind, (iii) the Collection Agent shall
pay to the Transferor any remaining Collections set aside and held by the
Collection Agent for the Investors pursuant to this Section 2.6 and (iv) the
Agent, on behalf of the Investors, shall execute and deliver to the Transferor,
at the Transferor's expense, such documents or instruments as are necessary to
terminate the Agent's interests in the Affected Assets. Any such documents shall
be prepared by or on behalf of the Transferor.
SECTION 2.7. FEES. Notwithstanding any limitation on recourse
contained in this Agreement, on the last day of each month the Transferor shall
pay the following non-refundable fees: (i) to each Conduit Investor, solely for
its own account, the Program Fee with respect to such Conduit Investor, (ii) to
each Conduit Investor, the Facility Fee with respect to the applicable Related
Group (for distribution to the Class A Bank Investors in such Related Group) and
(iii) to Enterprise the Administrative Fee.
SECTION 2.8. PROTECTION OF OWNERSHIP INTEREST OF THE INVESTORS;
SPECIAL ACCOUNTS AND CONCENTRATION ACCOUNT. (a) The Transferor agrees that it
will, and will cause the Seller to, from time to time, at its expense, promptly
execute and deliver all instruments and documents and take all actions as may be
necessary or as the Agent or any Administrative Agent may reasonably request in
order to perfect or protect the Transferred Interest or to enable the Agent, the
Administrative Agents or the Investors to exercise or enforce any of their
respective rights hereunder. Without limiting the foregoing, the Transferor
will, and will cause the Seller to, upon the request of the Agent, any
Administrative Agent or any of the Investors, in order to accurately reflect
this purchase and sale transaction, execute and file such financing or
continuation statements or amendments thereto or assignments thereof as
permitted pursuant to Section 9.7 hereof as may be requested by the Agent, any
Administrative Agent or any of the Investors and (y) ▇▇▇▇ 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
42
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 to the Concentration Account Bank, the Concentration Account Notice
delivered hereunder. The Transferor hereby, when the Agent shall deliver the
Concentration Account Notice to the Concentration Account Bank, transfers to the
Agent the exclusive ownership and control of the Concentration Account, 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 shall cease to
have such authority before the delivery of the Concentration Account Notice,
such signature shall nevertheless be valid and sufficient for all purposes as if
such authority had remained in force at the time of such delivery. The Agent
shall, at the time it delivers the Concentration Account Notice to the
Concentration Account Bank, 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 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 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 all
Collections from time to time on deposit in the applicable Special Accounts on a
daily basis in accordance with the terms set forth in the applicable Special
Account Letter. 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
43
commence discussions with a view toward implementing an alternative arrangement
therefor satisfactory to the Agent and each Administrative Agent.
(d) Anything to the contrary herein notwithstanding, all
Medicare or Medicaid payments which are made by an Obligor with respect to any
Receivables shall be collected from such Obligor only by (i) the applicable
Originating Entity or (ii) an agent of such Originating Entity, EXCEPT to the
extent that an Obligor may be required to submit any such payments directly to a
Person other than such Originating Entity pursuant to a court-ordered assignment
which is valid, binding and enforceable under applicable federal and state
Medicare Regulations and Medicaid Regulations; and neither this Agreement nor
any other Transaction Document shall be construed to permit any other Person, in
violation of applicable Medicare Regulations or Medicaid Regulations to collect
or receive, or to be entitled to collect or receive, any such payments prior to
such Originating Entity's or such agent's receipt thereof.
SECTION 2.9. DEEMED COLLECTIONS; APPLICATION OF PAYMENTS. (a) If on
any day the Outstanding Balance of a Receivable is either (x) reduced as a
result of any defective, rejected or returned merchandise or services, any
discount, credit, Contractual Adjustment, rebate, dispute, warranty claim,
repossessed or returned goods, chargeback, allowance, any billing adjustment or
other adjustment, or (y) reduced or canceled as a result of a setoff or offset
in respect of any claim by any Person (whether such claim arises out of the same
or a related transaction or an unrelated transaction), the Transferor shall be
deemed to have received on such day a Collection of such Receivable in the
amount of such reduction or cancellation and the Transferor shall pay to the
Collection Agent an amount equal to such reduction or cancellation and such
amount shall be applied by the Collection Agent as a Collection in accordance
with Section 2.5 or 2.6 hereof, as applicable. The Net Investment shall be
reduced by the amount of such payment applied to the reduction of the Net
Investment and actually received by the applicable Administrative Agent.
(b) If on any day any of the representations or warranties in
Article III was or 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), the Transferor shall be deemed to have
received on such day a Collection on such Receivable in full and the Transferor
shall on such day pay to the Collection Agent an amount equal to the Outstanding
Balance of such Receivable and such amount shall be allocated and applied by the
Collection Agent as a Collection allocable to the Transferred Interest in
accordance with Section 2.5 or 2.6 hereof, as applicable. The Net Investment
shall be reduced by the amount of such payment applied to the reduction of the
Net Investment and actually received by the applicable Administrative Agent.
(c) Any payment by an Obligor in respect of any indebtedness
owed by it to the Transferor or the Seller shall, except as otherwise specified
by such Obligor or otherwise required by contract or law and unless otherwise
instructed by each Administrative Agent, be applied as a Collection of any
Receivable of such Obligor included in the Transferred Interest (starting with
the oldest such Receivable) or the extent of any amounts then due and
44
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 11:00 a.m. (New
York City time) on the day when due in immediately available funds; if such
amounts are payable to the Agent or any Administrative Agent (whether on behalf
of any of the Investors or otherwise) they shall be paid or deposited in the
applicable account indicated in Section 10.3 hereof, until otherwise notified by
the Agent or such Administrative Agent, as the case may be. The Transferor
shall, to the extent permitted by law, pay to each Administrative Agent, for the
benefit of itself and the Investors in its Related Group, upon demand, interest
on all amounts owing to such Administrative Agent or such Investors not paid or
deposited when due hereunder at a rate equal to 2% per annum plus the Base Rate.
All computations of Discount, interest and all per annum fees hereunder shall be
made on the basis of a year of 360 days for the actual number of days (including
the first but excluding the last day) elapsed. Any computations by an
Administrative Agent of amounts payable by the Transferor hereunder to such
Administrative Agent or any Investor in its Related Group shall be binding upon
all parties hereto absent manifest error.
SECTION 2.11. REPORTS. On or prior to the last Business Day of each
month, the Collection Agent shall prepare and forward to the Agent and each
Administrative Agent (i) an Investor Report as of the end of the last day of the
immediately preceding month, (ii) a listing by Primary Payor of all Receivables
together with an analysis as to the aging of such Receivables as of such last
day, but only to the extent the Receivable Systems of the Collection Agent are
able to generate such information, (iii) written confirmation that all payments
in cash, by way of credits to intercompany accounts (in the case of purchases
made by the Seller from any Transferring Affiliate) or by way of application of
proceeds of advances made under the Subordinated Note (in the case of purchases
made by the Transferor from the Seller) have been made by the Transferor under
the Receivables Purchase Agreement or by the Seller under the Transferring
Affiliate Letter or the BMA Transfer Agreement, as applicable, in accordance
with the respective terms of such agreement, and (iv) such other information as
the Agent or any Administrative Agent may reasonably request.
SECTION 2.12. COLLECTION ACCOUNT. The Collection Agent has established
and shall maintain with the Agent a segregated account (the "COLLECTION
ACCOUNT"), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Agent, on behalf of the Investors.
During the continuance of a Collection Agent Default or a Termination Event or a
Potential Termination Event, the Collection Agent shall remit daily within
forty-eight hours of receipt to the Collection Account all Collections received
with respect to any Receivables. Funds on deposit in the Collection Account
(other than investment earnings) shall be invested by the Agent in Eligible
Investments that will mature so that such funds will be available prior to the
last day of each successive Tranche Period following such investment. On the
last day of each Tranche Period, such funds on deposit, together with all
interest and earnings (net of losses and investment expenses) thereon, in the
Collection Account shall be made
45
available for application in accordance with the terms of Section 2.6 or
otherwise for application toward payments required to be made hereunder
(including Discount) by the Transferor. On the date on which the Net Investment
is zero, all accrued Discount and Servicing Fees have been paid in full and all
other Aggregate Unpaids have been paid in full, any funds remaining on deposit
in the Collection Account shall be paid to the Transferor.
SECTION 2.13. SHARING OF PAYMENTS, ETC. (a) If any Class A Investor
(for purposes of this Section 2.13(a) 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 in its
capacity as a Class A Investor (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
Class A Investors entitled thereto, such NPRBI shall forthwith purchase from the
other Class A Investors entitled to a share of such amount participations in the
Transferred Interests owned by such other Class A Investors the excess payment
ratably with each such other Class A 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 Class A 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 Class A 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.
(b) If any Class B Investor (for purposes of this Section 2.13 (b)
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 in its capacity as a Class B Investor (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 Class B Investors entitled thereto, such NPRBI shall
forthwith purchase from the other Class B Investors entitled to a share of such
amount participations in the Transferred Interests owned by such other Class B
Investors the excess payment ratably with each such other Class B 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 Class B 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
Class B 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
46
any time after the occurrence of the Termination Date or during the continuance
of a Potential Termination Event to setoff, appropriate and apply (without
presentment, demand, protest or other notice which are hereby expressly waived)
any deposits (other than any deposits then being held in any Special Account
maintained by an Investor as to which deposits the Investors waive their rights
of set-off in respect of the Aggregate Unpaid) and any other indebtedness held
or owing by any Investor to, or for the account of, the Transferor against the
amount of the Aggregate Unpaids owing by the Transferor to such Investor or to
the Agent or any Administrative Agent on behalf of such Investor (even if
contingent or unmatured).
SECTION 2.15. ADDITIONAL TRANSFERRING AFFILIATES. (a) If (i) one or
more direct or indirect wholly-owned subsidiaries of NMC (other than the
Transferring Affiliates) now owned or hereafter acquired, is primarily engaged
in the same business as is conducted on the date hereof by the Originating
Entities or (ii) NMC reorganizes its corporate structure such that facilities
generating Receivables on the date hereof (or acquired as contemplated by clause
(i)) are owned by one or more additional wholly-owned subsidiaries of NMC, any
or all of the wholly-owned subsidiaries referred to in clauses (i) and (ii) may,
following 30-days' prior written notice by the Transferor to each Administrative
Agent and with the prior written consent of each Administrative Agent (which
consent shall not be unreasonably withheld or delayed), become Transferring
Affiliates under this Agreement upon delivery to each Administrative Agent of
(x) counterparts of the Transferring Affiliate Letter duly executed by such
subsidiary or subsidiaries and (y) the documents relating to such subsidiary or
subsidiaries of the kind delivered by or on behalf of the Transferring
Affiliates (other than BMA) pursuant to Section 4.1, together with such other
instruments, documents and agreements as any Administrative Agent may reasonably
request in connection therewith.
(b) Upon the addition of any wholly-owned subsidiary of NMC 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.
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,
47
every other jurisdiction in which the nature of its business requires it to be
so qualified, except where the failure to be so qualified or in good standing
would not have a Material Adverse Effect.
(b) CORPORATE AND GOVERNMENTAL AUTHORIZATION; CONTRAVENTION. The
=execution, delivery and performance by the Transferor of this Agreement, the
Receivables Purchase Agreement, the Fee Letters, the Certificates, the Transfer
Certificates and the other Transaction Documents to which the Transferor is a
party are within the Transferor's corporate powers, have been duly authorized by
all necessary corporate action, require no action by or in respect of, or filing
with, any Official Body or official thereof (except as contemplated by Section
2.8 hereof), and do not contravene, or constitute a default under, any provision
of applicable law, rule or regulation (including, without limitation, any
CHAMPUS/VA Regulation, any Medicaid Regulation or any Medicare Regulation) or of
the Certificate of Incorporation or Bylaws of the Transferor or of any
agreement, judgment, injunction, order, writ, decree or other instrument binding
upon the Transferor or result in the creation or imposition of any Adverse Claim
on the assets of the Transferor or any of its Subsidiaries (except as
contemplated by Section 2.8 hereof).
(c) BINDING EFFECT. Each of this Agreement, the Receivables
Purchase Agreement, the Fee Letters, the Certificates and the other Transaction
Documents to which the Transferor is a party constitutes and the Transfer
Certificate upon payment of the Transfer Price set forth therein will constitute
the legal, valid and binding obligation of the Transferor, enforceable against
it in accordance with its terms, subject to applicable bankruptcy, insolvency,
moratorium or other similar laws affecting the rights of creditors generally.
(d) PERFECTION. Immediately preceding each Transfer hereunder,
the Transferor shall be the owner of all of the Receivables, free and clear of
all Adverse Claims. On or prior to each Transfer and each recomputation of the
Transferred Interest, all financing statements and other documents required to
be recorded or filed, or notices to Obligors to be given, in order to perfect
and protect the Agent's Transferred Interest against all creditors of and
purchasers from the Transferor and the Seller will have been duly filed in each
filing office necessary for such purpose and all filing fees and taxes, if any,
payable in connection with such filings shall have been paid in full.
(e) ACCURACY OF INFORMATION. All information heretofore
furnished by the Transferor (including without limitation, the Investor Reports,
any reports delivered pursuant to Section 2.11 hereof and the Transferor's
financial statements) to any Investor, the Agent or any Administrative Agent for
purposes of or in connection with this Agreement or any transaction contemplated
hereby is, and all such information hereafter furnished by the Transferor to the
any Investor, the Agent or any Administrative Agent will be, true and accurate
in every material respect, on the date such information is stated or certified.
(f) TAX STATUS. The Transferor has filed all tax returns
(federal, state and local) required to be filed and has paid or made adequate
provision for the payment of all taxes, assessments and other governmental
charges.
48
(g) ACTION, SUITS. Except as set forth in Exhibit H hereof,
there are no actions, suits or proceedings pending, or to the knowledge of the
Transferor threatened, in or before any court, arbitrator or other body, against
or affecting (i) the Transferor or any of its properties or (ii) any Affiliate
of the Transferor or its respective properties, which may, in the case of
proceedings against or affecting any such Affiliate, individually or in the
aggregate, have a Material Adverse Effect.
(h) USE OF PROCEEDS. No proceeds of any Transfer will be used by
the Transferor to acquire any security in any transaction which is subject to
Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
(i) PLACE OF BUSINESS. The principal place of business and chief
executive office of the Transferor are located at the address of the Transferor
indicated in Section 10.3 hereof and the offices where the Transferor keeps
substantially all its Records, are located at the address(es) described on
Exhibit I or such other locations notified to each Administrative Agent in
accordance with Section 2.8 hereof in jurisdictions where all action required by
Section 2.8 hereof has been taken and completed. The principal place of business
and chief executive office of each Originating Entity is located at the address
of such Originating Entity indicated in Exhibit I hereof and the offices where
the each Originating Entity keeps substantially all its Records are located at
the address(es) specified on Exhibit I with respect to such Originating Entity
or such other locations notified to each Administrative Agent in accordance with
Section 2.8 hereof in jurisdictions where all action required by Section 2.8
hereof has been taken and completed. The jurisdiction of organization of each of
the Seller and the Transferor is the State of Delaware. The jurisdiction of
organization for each Transferring Affiliate is the state specified opposite
such Transferring Affiliate's name on Exhibit Q.
(j) GOOD TITLE. Upon each Transfer and each recomputation of the
Transferred Interest, the Agent shall acquire a valid and perfected first
priority undivided percentage ownership interest to the extent of the
Transferred Interest or a first priority perfected security interest in each
Receivable that exists on the date of such Transfer and recomputation and in the
Related Security and Collections with respect thereto free and clear of any
Adverse Claim.
(k) TRADENAMES, ETC. As of the date hereof: (i) the Transferor's
chief executive office is located at the address for notices set forth in
Section 10.3 hereof; (ii) the Transferor has no subsidiaries or divisions; (iii)
the Transferor has, within the last five (5) years, not operated under any
tradename, and, within the last five (5) years, has not changed its name, merged
with or into or consolidated with any other corporation or been the subject of
any proceeding under Title 11, United States Code (Bankruptcy); and (iv) none of
the Originating Entities has, within the last five (5) years, operated under any
tradename other than Fresenius Medical Care North America or, 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 ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
Code (Bankruptcy), except in each case as described on Exhibit H.
49
(l) NATURE OF RECEIVABLES. Each Receivable (x) represented by
the Transferor or the Collection Agent to be an Eligible Receivable (including
in any Investor Report or other report delivered pursuant to Section 2.11
hereof) or (y) included in the calculation of the Net Receivables Balance is an
"eligible asset" as defined in Rule 3a-7 under the Investment Company Act, of
1940, as amended and, in the case of clause (y) above, is not a Receivable of
the type described in clauses (i) through (iii) of the definition of "Net
Receivables Balance."
(m) COVERAGE REQUIREMENT; AMOUNT OF RECEIVABLES. The Percentage
Factor does not exceed the Maximum Percentage Factor.
(n) CREDIT AND COLLECTION POLICY. Since July 10, 1997, 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 July 10, 1997, 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 AND CONCENTRATION BANK. The names and
addresses of all the Special Account Banks (and, if applicable, the Designated
Account Agent in respect thereof) and the Concentration Account Bank, together
with the account numbers of the Special Accounts at such Special Account Banks
and the account number of the Concentration Account of the Transferor at the
Concentration Account Bank, are specified in Exhibit C hereto (or at such other
Special Account Banks or Concentration Account Bank, with such other Special
Accounts or Concentration Account or with such other Designated Account Agents
as have been notified to each Administrative Agent in accordance with Section
5.2(e)). This Agreement, together with the Concentration Account Agreement, 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. The Transferor has not granted to any Person (other than the Agent
under the Concentration Account Agreement) dominion and control over the
Concentration Account, or the right to take dominion and control over the
Concentration Account at a future time or upon the occurrence of a future event;
neither the Transferor nor any other Parent Group
50
Member has granted to any Person dominion and control over any Special Account,
or the right to take dominion or control over any Special Account at a future
time or upon the occurrence of a future event; and the Concentration Account and
each Special Account is otherwise free and clear of any Adverse Clam.
(t) BULK SALES. No transaction contemplated hereby or by the
Receivables Purchase Agreement requires compliance with any bulk sales act or
similar law.
(u) TRANSFERS UNDER RECEIVABLES PURCHASE AGREEMENT. With respect
to each Receivable, and Related Security, if any, with respect thereto,
originally owed to the Seller or acquired by the Seller from any Transferring
Affiliate, the Transferor purchased such Receivable and Related Security from
the Seller under the Receivables Purchase Agreement, such purchase was deemed to
have been made on the date such Receivable was credited or acquired by the
Seller and such purchase was made strictly in accordance with the terms of the
Receivables Purchase Agreement.
(v) PREFERENCE; VOIDABILITY (RECEIVABLES PURCHASE AGREEMENT).
The Transferor has given reasonably equivalent value to the Seller in
consideration for each transfer to the Transferor of Receivables and Related
Security from the Seller, and no such transfer has been made for or on account
of an antecedent debt owed by the Seller to the Transferor and no such transfer
is or may be voidable under any Section of the Bankruptcy Code.
(w) TRANSFERS BY TRANSFERRING AFFILIATES. With respect to each
Receivable, and Related Security, if any, with respect thereto, originally owed
to any Transferring Affiliate, the Seller (i) purchased such Receivable and
Related Security from such Transferring Affiliate under the Transferring
Affiliate Letter or from BMA under the BMA Transfer Agreement, such purchase
being deemed to have been made on the date such Receivable was created (or, in
the case of a Receivable outstanding on the Closing Date, on the 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.
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(y) OWNERSHIP. FMC owns, directly or indirectly through a
wholly-owned Subsidiary, all of the issued and outstanding common stock of (and
such stock comprises more than 80% of the Voting Stock of) FMCH, free and clear
of any Adverse Claim except to the extent such stock is pledged in connection
with the Bank Revolver. 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 Bank Revolver. All of the issued and outstanding stock of the Transferor is
owned by NMC, free and clear of any Adverse Claim.
(z) REPRESENTATIONS AND WARRANTIES OF THE SELLER. Each of the
representations and warranties of the Seller set forth in Section 3.1 of the
Receivables Purchase Agreement are true and correct in all material respects and
the Transferor hereby remakes all such representations and warranties for the
benefit of the Agent, each of the Investors and each Administrative Agent.
Any document, instrument, certificate or notice delivered by the
Transferor to any Conduit Investor, Administrative Agent or the Agent hereunder
shall be deemed a representation and warranty by the Transferor.
REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES BY THE
TRANSFEROR. On each day that a Transfer is made hereunder, the Transferor, by
accepting the proceeds of such Transfer, whether delivered to the Transferor
pursuant to Section 2.2(a) or Section 2.5 hereof, shall be deemed to have
certified that all representations and warranties described in Section 3.1
hereof are correct on and as of such day as though made on and as of such day.
Each Incremental Transfer shall be subject to the further conditions precedent
that:
(a) prior to the date of such Incremental Transfer, the
Collection Agent shall have delivered to the Agent and each Administrative
Agent, in form and substance satisfactory to the Agent and each
Administrative Agent, a completed Investor Report dated within ten (10)
days prior to the date of such Incremental Transfer, together with a
listing by Primary Payor of all Receivables, and such additional
information as may be reasonably requested by any Administrative Agent or
the Agent;
(b) on date of such Incremental Transfer, either (i) FMCH's
long-term public senior debt securities are rated as least B- by Standard &
Poor's and B3 by Moody's, or if neither Standard & Poor's nor Moody's shall
rate such securities, FMCH's long-term senior debt shall have a deemed
rating of at least B as determined by each Administrative Agent using its
standard bond rating methodology, or (ii) FMC's long-term public senior
debt securities are rated as least B- by Standard & Poor's and B3 by
▇▇▇▇▇'▇ Investors Service, or if neither Standard & Poor's nor Moody's
shall rate such securities, FMC's long-term senior debt shall have deemed
rating of at least B as determined by each Administrative Agent using its
standard bond rating methodology,
and the Transferor shall be deemed to have represented and warranted that such
conditions precedent have been satisfied.
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SECTION 3.2. REPRESENTATIONS AND WARRANTIES OF THE COLLECTION AGENT.
The Collection Agent represents and warrants to the Agent, each Administrative
Agent and each of the Investors that:
(a) CORPORATE EXISTENCE AND POWER. The Collection Agent is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation and has all corporate power and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business in each jurisdiction in which its business is now
conducted. The Collection Agent is duly qualified to do business in, and is in
good standing in, every other jurisdiction in which the nature of its business
requires it to be so qualified, except where the failure to be so qualified or
in good standing would not have a Material Adverse Effect.
(b) CORPORATE AND GOVERNMENTAL AUTHORIZATION; CONTRAVENTION. The
execution, delivery and performance by the Collection Agent of this Agreement
are within the Collection Agent's corporate powers, have been duly authorized by
all necessary corporate action, require no action by or in respect of, or filing
with, any Official Body or official thereof, and do not contravene, or
constitute a default under, any provision of applicable law, rule or regulation
(including, without limitation, any CHAMPUS/VA Regulation, any Medicaid
Regulation or any Medicare Regulation) or of the Certificate of Incorporation or
Bylaws of the Collection Agent or of any agreement, judgment, injunction, order,
writ, decree or other instrument binding upon the Collection Agent or result in
the creation or imposition of any Adverse Claim on the assets of the Collection
Agent or any of its Subsidiaries.
(c) BINDING EFFECT. This Agreement constitutes the legal, valid
and binding obligation of the Collection Agent, enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency, moratorium or similar
laws affecting the rights of creditors.
(d) ACCURACY OF INFORMATION. All information heretofore
furnished by the Collection Agent to the Agent, any Investor or any
Administrative Agent for the purposes of or in connection with this Agreement or
any transaction contemplated hereby is, and all such information hereafter
furnished by the Collection Agent to the Agent, any Investor or any
Administrative Agent will be, true and accurate in every material respect, on
the date such information is stated or certified.
(e) ACTION, SUITS. Except as set forth in Exhibit H, there are
no actions, suits or proceedings pending, or to the knowledge of the Collection
Agent threatened, against or affecting the Collection Agent or any Affiliate of
the Collection Agent or their respect properties, in or before any court,
arbitrator or other body, which may, individually or in the aggregate, have a
Material Adverse Effect.
(f) NATURE OF RECEIVABLES. Each Receivable included in the
calculation of the Net Receivables Balance is not a Receivable of the type
described in clauses (i) through (iii) of the definition of "Net Receivables
Balance".
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(g) AMOUNT OF RECEIVABLES. The Percentage Factor does not exceed
the Maximum Percentage Factor.
(h) CREDIT AND COLLECTION POLICY. Since July 10, 1997, 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 July 10, 1997, there has
been no material adverse change in the ability of the Collection Agent to
service and collect the Receivables.
(j) NOT AN INVESTMENT COMPANY. The Collection Agent is not, and
is not controlled by, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or is exempt from all provisions of
such Act.
(k) SPECIAL ACCOUNTS AND CONCENTRATION ACCOUNT. The names and
addresses of all the Special Account Banks (and, if applicable, the Designated
Account Agent in respect thereof) and the Concentration Account Bank, together
with the account numbers of the Special Accounts at such Special Account Banks
and the account number of the Concentration Account of the Transferor at the
Concentration Account Bank, are specified in Exhibit C hereto (or at such other
Special Account Banks or Concentration Account Bank, with such other Special
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. On or prior to the date of
execution hereof, the Transferor shall deliver or cause to be delivered to each
Administrative Agent (or, in the case of clause (p) below, the Administrative
Agent(s) for the relevant Conduit Investor(s)) the following documents,
instruments and fees 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.
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(c) The Certificates of Incorporation of the Transferor
certified by the Secretary of the Transferor dated a date reasonably prior to
the Closing Date.
(d) The Certificate of Incorporation of the Collection Agent
certified by the Secretary of the Collection Agent dated a date reasonably prior
to the Closing Date.
(e) A Good Standing Certificate for the Transferor issued by the
Secretary of State or a similar official of the Transferor's jurisdiction of
incorporation and certificates of qualification as a foreign corporation issued
by the Secretaries of State or other similar officials of each jurisdiction
where such qualification is material to the transactions contemplated by this
Agreement and the other Transaction Documents, in each case, dated a date
reasonably prior to the Closing Date.
(f) A Good Standing Certificate for the Collection Agent issued
by the Secretary of State or a similar official of the Collection Agent's
jurisdiction of incorporation and certificates of qualification as a foreign
corporation issued by the Secretaries of State or other similar officials of
each jurisdiction when such qualification is material to the transactions
contemplated by this Agreement and the Receivables Purchase Agreement and the
other Transaction Documents, in each case, dated a date reasonably prior to the
Closing Date.
(g) A Certificate of the Secretary of the Transferor
substantially in the form of Exhibit L attached hereto.
(h) A Certificate of the Secretary of the Collection Agent
substantially in the form of Exhibit L attached hereto.
(i) If requested by the Agent, copies of proper financing
statements (Form UCC-1), dated a date reasonably near to the Closing Date naming
the Transferor as the debtor in favor of the Agent, for the benefit of the
Investors, as the secured party or other similar instruments or documents as may
be necessary or in the reasonable opinion of the Agent desirable under the UCC
of all appropriate jurisdictions or any comparable law to perfect the Agent's
undivided percentage interest in all Receivables and the Related Security and
Collections relating thereto.
(j) An opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Associate General Counsel for
FMCH, NMC and each Transferring Affiliate, acting as counsel to FMC, FMCH, the
Transferor, the Collection Agent and the Originating Entities, in the respective
form attached in Exhibit K hereto.
(k) An opinion of Arent Fox ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇, PLLC special
counsel to FMC, FMCH, the Transferor and the Seller, covering certain bankruptcy
and general corporate matters in the respective forms attached in Exhibit K
hereto.
55
(l) An executed copy of this Agreement and each of the other
Transaction Documents to be executed by the Transferor, any Originating Entity
or the Collection Agent.
(m) A Reaffirmation of the Parent Agreement, duly executed by
each of FMCH and FMC, in the form attached hereto as Exhibit T.
(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) 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.
ARTICLE V
COVENANTS
SECTION 5.1. AFFIRMATIVE COVENANTS OF TRANSFEROR. At all times from
the date hereof to the later to occur of (i) the Termination Date or (ii) the
date on which the Net Investment has been reduced to zero, all accrued Discount
and Servicing Fees shall have been paid in full and all other Aggregate Unpaids
shall have been paid in full, in cash, unless the Required Administrative Agents
shall otherwise consent in writing:
(a) FINANCIAL REPORTING. The Transferor will, and will cause the
Seller and each of the Transferring Affiliates to, maintain, for itself and each
of its respective Subsidiaries, a system of accounting established and
administered in accordance with GAAP, and furnish to each Administrative Agent:
(i) ANNUAL REPORTING. As soon as available, but in any event
within ninety-five (95) days after the end of each fiscal year of the
Transferor, financial statements for the Transferor, including a balance
sheet as of the end of such period, the related statement of income,
retained earnings, shareholders' equity and cash flows for such year
prepared by the Transferor in accordance with GAAP and reviewed by a
nationally recognized accounting firm accompanied by a certificate of said
accountants that, in the course of the foregoing, they have obtained no
knowledge of any Termination Event or Potential Termination Event, or if,
in the opinion of such accountants, any Termination Event or Potential
Termination Event shall exist, stating the nature and status thereof.
56
(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 its chief executive officer or its senior financial officer.
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 the
Closing Date), in each case subject to normal recurring year-end audit
adjustments. Each such financial statement shall be prepared in accordance
with GAAP consistently applied.
(iii) COMPLIANCE CERTIFICATE. Together with the financial
statements required hereunder, a compliance certificate signed by the
Transferor's chief executive officer or its senior financial officer
stating that (x) the attached financial statements have been prepared in
accordance with GAAP and accurately reflect the financial condition of the
Transferor and (y) to the best of such Person's knowledge, no Termination
Event or Potential Termination Event exists, or if any Termination Event or
Potential Termination Event exists, stating the nature and status thereof
and (z) such Person has reviewed each Investor Report prepared by the
Collection Agent since the end of the last day of the immediately preceding
monthly period of the Transferor's fiscal year and the information upon
which each such Investor Report was based and, based on such review, such
Person has concluded that (1) the calculation of the Net Receivables
Balance (including, without limitation, the calculation of each of the
items described in clauses (i) through (iv) of the definition of "Net
Receivables Balance") by the Collection Agent in each such Investor Report
is accurate and complete in all material respects and (2) each such
Investor Report is otherwise accurate and complete in all material
respects.
(iv) NOTICE OF TERMINATION EVENTS OR POTENTIAL TERMINATION
EVENTS. As soon as possible and in any event within two (2) days (or the
next Business Day thereafter if such day is not a Business Day) after the
occurrence of each Termination Event or each Potential Termination Event, a
statement of the chief executive officer or the senior financial officer of
the Transferor setting forth details of such Termination Event or Potential
Termination Event and the action which the Transferor proposes to take with
respect thereto.
(v) CHANGE IN CREDIT AND COLLECTION POLICY AND DEBT RATINGS.
Within ten (10) days after the date any material change in or amendment to
the Credit and Collection
57
Policy is made, a copy of the Credit and Collection Policy then in effect
indicating such change or amendment.
(vi) CREDIT AND COLLECTION POLICY. Within ninety (90) days after
the close of each of the Seller's and the Transferor's fiscal years, a
complete copy of the Credit and Collection Policy then in effect.
(vii) ERISA. Promptly after the filing or receiving thereof,
copies of all reports and notices with respect to any Reportable Event (as
defined in Article IV of ERISA) which the Transferor, the Seller or any
ERISA Affiliate of the Transferor or the Seller files under ERISA with the
Internal Revenue Service, the Pension Benefit Guaranty Corporation or the
U.S. Department of Labor or which the Transferor, the Seller or any ERISA
Affiliates of the Transferor or the Seller receives from the Internal
Revenue Service, the Pension Benefit Guaranty Corporation or the U.S.
Department of Labor.
(viii) NOTICES UNDER TRANSACTION DOCUMENTS. Forthwith upon its
receipt thereof, a copy of each notice, report, financial statement,
certification, request for amendment, directive, consent, waiver or other
modification or any other writing issued under or in connection with any
other Transaction Document by any party thereto (including, without
limitation, by the Transferor).
(ix) INVESTIGATIONS AND PROCEEDINGS. Unless prohibited by either
(i) the terms of the subpoena, request for information or other document
referred to below, (ii) law (including, without limitation, rules and
regulations) or (iii) restrictions imposed by the U.S. federal or state
government or any agency or instrumentality thereof and subject to the
execution by the applicable Administrative Agent of a confidentiality
agreement in form and substance satisfactory to both the Transferor and
such Administrative Agent, as soon as possible and in any event (A) within
three Business Days after the Transferor (or within five Business Days
after any Originating Entity) receives any subpoena, request for
information, or any other document relating to any possible violation by
the Transferor or any Originating Entity of, or failure by the Transferor
or any Originating Entity to comply with, any rule, regulation or statute
from HHS or any other governmental agency or instrumentality, notice of
such receipt and, if requested by the Agent, the information contained in,
or copies of, such subpoena, request or other document, and (B) periodic
updates and other management reports relating to the subpoenas, requests
for information and other documents referred to in clause (A) above as may
be reasonably requested by any Administrative Agent unless such updates or
requests could reasonably be deemed a contravention or waiver of any
available claim of legal privilege, or would otherwise materially impair
available defenses, of the Transferor or any Originating Entity.
(x) OTHER INFORMATION. Such other information (including
non-financial information) as the Agent or any Administrative Agent may
from time to time
58
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; PROVIDED, HOWEVER, that each Administrative Agent
acknowledges that in exercising the rights and privileges conferred in this
Section 5.1(d) 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. Each Administrative 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
59
available to the public (other than as a breach of this Section 5.1(d)), (ii) is
required or appropriate in response to any summons or subpoena in connection
with any litigation or (iii) is required by law to be disclosed; and PROVIDED,
FURTHER, HOWEVER, that such Confidential Information may be disclosed to (A) the
Agent, any Administrative Agent, any Investor, any Credit Support Provider and
any Liquidity Provider, subject to the terms of this Section 5.1(d), (B) any
such Person's legal counsel, auditors and other business advisors, (C) any such
Person's government regulators and (D) the rating agencies rating any Commercial
Paper issued by a Conduit Investor or its Related CP Issuer, 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.
(e) KEEPING OF RECORDS AND BOOKS OF ACCOUNT. The Transferor
will, and will cause each Originating Entity to, maintain and implement
administrative and operating procedures (including, without limitation, an
ability to recreate records evidencing Receivables in the event of the
destruction of the originals thereof), and keep and maintain, all documents,
books, records and other information reasonably necessary or advisable for the
collection of all Receivables (including, without limitation, records adequate
to permit the daily identification of each new Receivable and all Collections of
and adjustments to each existing Receivable). The Transferor will, and will
cause each Originating Entity to, give each Administrative Agent notice of any
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; 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, (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
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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 Special
Accounts at such Special Account Bank, and (vi) 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; PROVIDED,
HOWEVER, that if the Collections on deposit in any Special Account during such
banking day shall be less than $5,000.00 (the "MINIMUM AMOUNT"), the Special
Account Bank shall transfer such Collections to the Concentration Account on the
next succeeding banking day on which Collections in such Special Account first
exceed the Minimum Amount. With respect to any Special Account that is located
at or maintained by a Class A Bank Investor hereunder, the Transferor shall, by
not later than the date that occurs six months after the Closing Date, cause the
applicable Originating Entity to close such Special Account and shall instruct,
and shall cause each applicable Originating Entity to instruct, all Obligors
theretofore remitting payments to such Special Account to remit all future
payments on Receivables and Related Security to a Special Account located at and
maintained by a financial institution that is not a Class A Bank Investor.
(i) COLLECTIONS RECEIVED. The Transferor shall, and shall cause
each Originating Entity to, segregate and hold in trust, and deposit,
immediately, but in any event not later than the day that occurs forty-eight
(48) hours thereafter (or, if such day is not a Business Day, the next Business
Day) after its receipt thereof, to 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 (i) and will not
permit any Originating Entity to, account for (including for accounting and tax
purposes), or otherwise treat, the transactions contemplated by the Receivables
Purchase Agreement, the Transferring Affiliate Letter or the BMA Transfer
Agreement in any manner other than as a sale of Receivables by the applicable
Originating Entity to the Seller or Transferor, as applicable, or (ii) account
for (other than for tax purposes) or otherwise treat any transactions
contemplated hereby in any manner other than as a sale of Receivables by the
Transferor to the Agent on behalf of the applicable Investors. In addition, the
Transferor shall, and shall cause each Originating Entity to, disclose (in a
footnote or otherwise) in all of its respective financial statements (including
any such financial statements consolidated with any other Persons' financial
statements) the existence and nature of the transaction contemplated hereby, by
the Receivables Purchase Agreement, by the Transferring Affiliate Letter and by
the BMA Transfer Agreement, and the interest of the Transferor (in the case of
the Seller's financial statements), and the Agent, on behalf of the Investors,
in the Affected Assets.
(k) SEPARATE BUSINESS. The Transferor shall at all times (a) to
the extent the Transferor's office is located in the offices of any Parent Group
Member, pay fair market rent for its executive office space located in the
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
61
Parent Group Member and is a person who is and has experience with asset
securitization, (c) maintain the Transferor's books, financial statements,
accounting records and other corporate documents and records separate from those
of any Parent Group Member or any other entity, (d) not commingle the
Transferor's assets with those of any Parent Group Member or any other entity,
(e) act solely in its corporate name and through its own authorized officers and
agents, (f) make investments directly or by brokers engaged and paid by the
Transferor its agents (provided that if any such agent is an Affiliate of the
Transferor it shall be compensated at a fair market rate for its services), (g)
separately manage the Transferor's liabilities from those of the Parent Group
and pay its own liabilities, including all administrative expenses, from its own
separate assets, except that the Seller may pay the organizational expenses of
the Transferor, and (h) pay from the Transferor's assets all obligations and
indebtedness of any kind incurred by the Transferor. The Transferor shall abide
by all corporate formalities, including the maintenance of current minute books,
and the Transferor shall cause its financial statements to be prepared in
accordance with GAAP in a manner that indicates the separate existence of the
Transferor and its assets and liabilities. The Transferor shall (i) pay all its
liabilities, (ii) not assume the liabilities of any Parent Group Member, (iii)
not lend funds or extend credit to any Parent Group Member except pursuant to
the Receivables Purchase Agreement in connection with the purchase of
Receivables thereunder and (iv) not guarantee the liabilities of any Parent
Group Member. The officers and directors of the Transferor (as appropriate)
shall make decisions with respect to the business and daily operations of the
Transferor independent of and not indicated by any controlling entity. The
Transferor shall not engage in any business not permitted by its Certificate of
Incorporation as in effect on the Closing Date. The Transferor shall, in
addition to the foregoing, take such other actions as are necessary on its part
to ensure that the facts and assumptions set forth in the opinions issued by
Arent Fox ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇, as counsel for the Transferor, in connection
with the closing or initial Transfer under this Agreement and relating to
"non-consolidation" issues and "true sale" issues, and in the certificates
accompanying such opinions, remain true and correct in all material respects at
all times.
(l) CORPORATE DOCUMENTS. The Transferor shall only amend, alter,
change or repeal any provision of the Third, Fifth, Seventh, Tenth, Eleventh or
Twelfth Article of its Certificate of Incorporation with the prior written
consent of each Administrative Agent.
(m) PAYMENT TO THE ORIGINATING ENTITIES. With respect to any
Receivable purchased by the Transferor from the Seller, such sale shall be
effected under, and in strict compliance with the terms of, the Receivables
Purchase Agreement, including, without limitation, the terms relating to the
amount and timing of payments to be made to the Seller by the Transferor in
respect of the purchase price for such Receivable. With respect to any
Receivable purchased by the Seller from any Transferring Affiliate, the
Transferor shall cause such sale to be effected under, and in strict compliance
with the terms of, the Transferring Affiliate Letter and the BMA Transfer
Agreement, as applicable, including, without limitation, the terms relating to
the amount and timing of payments to be made to each Transferring Affiliate in
respect of the purchase price for such Receivable.
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(n) PERFORMANCE AND ENFORCEMENT OF THE RECEIVABLES PURCHASE
AGREEMENT, ETC. The Transferor shall timely perform the obligations required to
be performed by the Transferor, and shall vigorously enforce the rights and
remedies accorded to the Transferor, under the Receivables Purchase Agreement.
The Transferor shall cause the Seller to timely perform the obligations required
to be performed by the Seller, and shall cause the Seller to vigorously enforce
the rights and remedies accorded to the Seller, under each of the Transferring
Affiliate Letter and the BMA Transfer Agreement. The Transferor shall take all
actions to perfect and enforce its rights and interests (and the rights and
interests of the Agent, each Administrative Agent and each of the Investors, as
assignees of the Transferor) under the Receivables Purchase Agreement as any
Administrative Agent may from time to time reasonably request, including,
without limitation, making claims to which it may be entitled under any
indemnity, reimbursement or similar provision contained in the Receivables
Purchase Agreement. The Transferor shall cause the Seller to take all actions to
perfect and enforce the Seller's rights and interests (and the rights and
interests of the Transferor, the Agent, the Administrative Agent and each of the
Investors, as assignees of the Seller) under the Transferring Affiliate Letter
or the BMA Transfer Agreement as any Administrative Agent may from time to time
reasonably request, including, without limitation, making claims to which it may
be entitled under any indemnity, reimbursement or similar provision contained in
the Transferring Affiliate Letter or the BMA Transfer Agreement.
SECTION 5.2. NEGATIVE COVENANTS OF THE TRANSFEROR. At all times from
the date hereof to the later to occur of (i) the Termination Date or (ii) the
date on which the Net Investment has been reduced to zero, all accrued Discount
and Servicing Fees shall have been paid in full and all other Aggregate Unpaids
shall have been paid in full, in cash, unless the Required Administrative Agents
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 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.
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(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 if, but
only if, each Administrative Agent shall receive at least ten Business Days'
prior written notice of such merger or consolidation 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) each Administrative Agent shall
have received a written agreement, in form and substance satisfactory to such
Administrative Agent, executed by the Person resulting from such merger or
consolidation, under which agreement such Person shall become the Seller and
Collection Agent, and shall assume the duties, obligations and liabilities of
the Seller, under the Receivables Purchase Agreement, this Agreement (in its
capacity as Collection Agent hereunder), the Special Account Letters and each
other Transaction Document to which the Seller is party (whether in its
individual capacity or as Collection Agent), together with the documents
relating to the Seller of the kind delivered by or on behalf of the Seller
pursuant to Section 3.1.
(e) CHANGE IN PAYMENT INSTRUCTIONS TO OBLIGORS, SPECIAL ACCOUNT
BANKS, DESIGNATED ACCOUNT AGENTS AND CONCENTRATION ACCOUNT. The Transferor will
not, and will not permit any Originating Entity to:
(i) add or terminate any bank as a Special Account Bank from those
listed in Exhibit C hereto, or make any change in its instructions to
Obligors regarding payments to be made to any Special Account Bank;
PROVIDED that the Transferor may permit the (A) addition of any bank as a
Special Account Bank for purposes of this Agreement at any time following
delivery to each Administrative Agent of written notice of such addition
and a Special Account Letter duly executed by such bank, and (B)
termination of any Special Account Bank at any time following delivery to
each Administrative Agent of written notice of such termination and
evidence satisfactory to each Administrative Agent that the affected
Obligors shall have been instructed to remit all subsequent Collections to
another Special Account; or
(ii) add, terminate or change the Concentration Account, or any bank
as the Concentration Account Bank, from that listed in Exhibit C hereto, or
make any change in the instructions contained in any Special Account Letter
or any change in the instructions to the Concentration Account Bank;
PROVIDED, HOWEVER, that the Transferor may terminate the then existing
Concentration Account Bank and appoint a new Concentration Account Bank if,
prior to such termination and appointment, each Administrative Agent shall
receive (i) ten Business Days' prior notice of such termination and
appointment and (ii) prior to the effective date of such termination and
appointment, (x) executed copies of Special Account Letters (in each case,
executed by the applicable Originating Entity and the applicable Special
Account Bank) instructing the Special
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Account Banks 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 the Special Accounts at the Special Account Banks, and
(y) a copy of a Concentration Account Agreement executed by the new
Concentration Account Bank and the Transferor; or
(iii) add or terminate any Person as a Designated Account Agent from
those listed in Exhibit C hereto, or make any change in its instructions to
such Designated Account Agent regarding the handling of the Collections in
the applicable Special Account; PROVIDED that the Transferor may permit the
(A) addition of any Person that satisfies the requirements set forth herein
of a "Designated Account Agent" as a Designated Account Agent for purposes
of this Agreement at any time following delivery to each Administrative
Agent of written notice of such addition and an Account Agent Agreement
duly executed by such Person, and (B) termination of any Designated Account
Agent at any time following delivery to each Administrative Agent of
written notice of such termination and evidence satisfactory to each
Administrative Agent that either an Originating Entity or a new Designated
Account Agent shall have been added in accordance with the terms of this
Agreement to succeed such terminated Designated Account Agent in respect of
the applicable Special Account or the affected Obligors shall have been
instructed to remit all subsequent Collections to another Special Account.
(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 or the Concentration Account
cash or cash proceeds other than Collections of Receivables.
(g) CHANGE OF NAME, ETC. The Transferor will not, and will not
permit any Originating Entity to, change its name, identity or structure or the
location of its chief executive office or jurisdiction of organization, unless
at least 10 days prior to the effective date of any such change the Transferor
delivers to each Administrative Agent (i) such documents, instruments or
agreements, executed by the Transferor and/or the affected Originating Entities,
as are necessary to reflect such change and to continue the perfection of the
Agent's ownership interests or security interest in the Affected Assets and (ii)
new or revised Special Account Letters executed by the Special Account Banks
which reflect such change and enable the Agent to continue to exercise its
rights contained in Section 2.8 hereof. The Transferor will not, and will not
permit any Originating Entity to, change its jurisdiction of organization to a
jurisdiction other than a State within the United States.
(h) AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT, ETC.. The
Transferor will not, and will not permit any Originating Entity to, (i) amend,
modify, or supplement the Receivables Purchase Agreement, the Transferring
Affiliate Letter, the BMA Transfer Agreement or any instrument, document or
agreement executed in connection therewith (collectively the "Initial Transfer
Documents"), (ii) terminate or cancel any Initial Transfer
65
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 $50,000 at any time outstanding.
(j) ERISA MATTERS. The Transferor will not, and will not permit
any Originating Entity to, (i) engage or permit any of its respective ERISA
Affiliates to engage in any prohibited transaction (as defined in Section 4975
of the Code and Section 406 of ERISA) for which an exemption is not available or
has not previously been obtained from the U.S. Department of Labor; (ii) permit
to exist any accumulated funding deficiency (as defined in Section 302(a) of
ERISA and Section 412(a) of the Code) or funding deficiency with respect to any
Benefit Plan other than a Multiemployer Plan; (iii) fail to make any payments to
any Multiemployer Plan that the Transferor, such Originating Entity or any ERISA
Affiliate thereof is required to make under the agreement relating to such
Multiemployer Plan or any law pertaining thereto; (iv) terminate any Benefit
Plan so as to result in any liability; or (v) permit to exist any occurrence of
any reportable event described in Title IV of ERISA which represents a material
risk of a liability to the Transferor, such Originating Entity or any ERISA
Affiliate thereof under ERISA or the Code, if such prohibited transactions,
accumulated funding deficiencies, payments, terminations and reportable events
occurring within any fiscal year of the Transferor, in the aggregate, involve a
payment of money or an incurrence of liability by the Transferor, any
Originating Entity or any ERISA Affiliate thereof, in an amount in excess of
$500,000.
SECTION 5.3. AFFIRMATIVE COVENANTS OF THE COLLECTION AGENT. At all
times from the date hereof to the later to occur of (i) the Termination Date or
(ii) the date on which the Net Investment has been reduced to zero, all accrued
Discount and Servicing Fees shall have been paid in full and all other Aggregate
Unpaids shall have been paid in full, in cash, unless the Required
Administrative Agents 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
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incorporation and maintain all requisite authority to conduct its business in
each jurisdiction in which its business is conducted.
(b) COMPLIANCE WITH LAWS. The Collection Agent will comply with
all laws, rules and regulations (including, without limitation, all CHAMPUS/VA
Regulations, Medicaid Regulations and Medicare Regulations), and all orders,
writs, judgments, injunctions, decrees or awards to which it or its respective
properties may be subject.
(c) FURNISHING OF INFORMATION AND INSPECTION OF RECORDS. The
Collection Agent will furnish to each Administrative Agent from time to time
such information with respect to the Receivables as such Administrative Agent
may reasonably request, including, without limitation, listings identifying the
Obligor and the Outstanding Balance for each Receivable. The Collection Agent
will, at any time and from time to time during regular business hours permit any
Administrative Agent, or its agents or representatives, (i) to examine and make
copies of and take abstracts from all Records and (ii) to visit the offices and
properties of the Collection Agent for the purpose of examining such records,
and to discuss matters relating to Receivables or the Transferor's, the
Originating Entities' or the Collection Agent's performance hereunder and under
the other Transaction Documents to which such Person is a party with any of the
officers, directors, employees or independent public accountants of the
Collection Agent having knowledge of such matters.
(d) KEEPING OF RECORDS AND BOOKS OF ACCOUNT. The Collection
Agent will maintain and implement administrative and operating procedures
(including, without limitation, an ability to recreate records evidencing
Receivables in the event of the destruction of the originals thereof), and keep
and maintain, all documents, books, records and other information reasonably
necessary or advisable for the collection of all Receivables (including, without
limitation, records adequate to permit the daily identification of each new
Receivable and all Collections of and adjustments to each existing Receivable).
The Collection Agent will give each Administrative Agent notice of any material
change in the administrative and operating procedures of the Collection Agent
referred to in the previous sentence.
(e) NOTICE OF AGENT'S INTEREST. The Collection Agent shall cause
its master data processing records, computer tapes, files and other documents or
instruments provided to, developed by or otherwise maintained by the Collection
Agent in connection with any Transfer or otherwise for purposes of the
transactions 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 and the Concentration Account
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Bank solely in a manner that is consistent with the terms of this Agreement,
including, without limitation, Sections 2.8, 5.1(h), 5.2(e) and 5.2(f) hereof.
(h) COLLECTIONS RECEIVED. The Collection Agent shall segregate
and hold in trust, and deposit, immediately, but in any event not later than the
day that occurs forty-eight (48) hours thereafter (or, if such day is not a
Business Day, the next Business Day) after its receipt thereof, to the
Concentration Account all Collections received from time to time by the
Collection Agent.
SECTION 5.4. NEGATIVE COVENANTS OF THE COLLECTION AGENT. At all times
from the date hereof to the later to occur of (i) the Termination Date or (ii)
the date on which the Net Investment has been reduced to zero, all accrued
Discount and Servicing Fees shall have been paid in full and all other Aggregate
Unpaids shall have been paid in full, in cash, unless the Required
Administrative Agents 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.
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ARTICLE VI
ADMINISTRATION AND COLLECTION
SECTION 6.1. APPOINTMENT OF COLLECTION AGENT. The servicing,
administering and collection of the Receivables shall be conducted by such
Person (the "COLLECTION AGENT") so designated from time to time in accordance
with this Section 6.1. Until the Agent gives notice to the Transferor of the
designation of a new Collection Agent, NMC is hereby designated as, and hereby
agrees to perform the duties and obligations of, the Collection Agent pursuant
to the terms hereof. The Collection Agent may not delegate any of its rights,
duties or obligations hereunder, or designate a substitute Collection Agent,
without the prior written consent of the Required Administrative Agents;
PROVIDED that the Collection Agent may from time to time delegate to any
Originating Entity such of its rights, duties and obligations hereunder as
relate to the servicing, administering and collection of the Receivables
originated by such Originating Entity; PROVIDED FURTHER that (i) any such
delegation shall be terminated upon the replacement of the Collection Agent
hereunder and (ii) the Collection Agent shall continue to remain solely liable
for the performance of the duties as Collection Agent hereunder notwithstanding
any such delegation hereunder. The Agent may, and upon the direction of the
Majority Investors the Agent shall, after the occurrence of a Collection Agent
Default or any other Termination Event designate as Collection Agent any Person
(including itself) to succeed NMC or any successor Collection Agent, on the
conditions in each case that any such Person so designated shall agree to
perform the duties and obligations of the Collection Agent pursuant to the terms
hereof and such designation of such Person is permitted by applicable law
(including, without limitation, applicable CHAMPUS/VA Regulations, Medicaid
Regulations and Medicare Regulations) or any order of a court of competent
jurisdiction. The Agent may notify any Obligor as to the ownership interest
therein that shall have been transferred to the Transferor and, except as
otherwise provided hereunder, as to the Transferred Interest hereunder.
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.
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The Transferor represents and warrants that the foregoing power of attorney, in
the case of any Originating Entity, has been duly granted to the Transferor
under the Receivables Purchase Agreement and the Transferor is authorized under
the Receivables Purchase Agreement, to the extent permitted by applicable law,
to authorize the Collection Agent hereunder to exercise such power. The
Collection Agent shall set aside for the account of the Transferor and the Agent
(for the benefit of the Investors) their respective allocable shares of the
Collections of Receivables in accordance with Sections 2.5 and 2.6 hereof. The
Collection Agent shall segregate and deposit to each Administrative Agent's
account such Administrative Agent's allocable share of Collections of
Receivables when required pursuant to Article II hereof. So long as no
Termination Event shall have occurred and be continuing, the Collection Agent
may, in accordance with the Credit and Collection Policy, extend the maturity or
adjust the Outstanding Balance of any Defaulted Receivable as the Collection
Agent may determine to be appropriate to maximize Collections thereof; PROVIDED,
HOWEVER, that such extension or adjustment shall not alter the status of such
Receivable as a Defaulted Receivable. The Transferor shall deliver to the
Collection Agent and the Collection Agent shall hold in trust for the
Transferor, and the Agent, on behalf of the Investors, in accordance with their
respective interests, all Records which evidence or relate to Receivables or
Related Security. Notwithstanding anything to the contrary contained herein, the
Agent shall have the absolute and unlimited right to direct the Collection Agent
(whether the Collection Agent is NMC or any other Person) to commence or settle
any legal action to enforce collection of any Receivable or to foreclose upon or
repossess any Related Security. The Collection Agent shall not make the Agent,
any Administrative Agent or any of the Investors a party to any litigation
without the prior written consent of such Person.
(b) The Collection Agent shall, as soon as practicable following
receipt thereof, turn over to the Transferor any collections of any indebtedness
of any Person which is not on account of a Receivable. If the Collection Agent
is not NMC or an Affiliate thereof, the Collection Agent, by giving three
Business Days' prior written notice to the Agent, may revise the percentage used
to calculate the Servicing Fee so long as the revised percentage will not result
in a Servicing Fee that exceeds 110% of the reasonable and appropriate out-of
pocket costs and expenses of such Collection Agent incurred in connection with
the performance of its obligations hereunder as documented to the reasonable
satisfaction of each Administrative Agent, PROVIDED, HOWEVER, that at any time
after the Percentage Factor equals or exceeds 98%, any compensation to the
Collection Agent in excess of the Servicing Fee initially provided for herein
shall be an obligation of the Transferor and shall not be payable, in whole or
in part, from the Collections allocated to or for the benefit of any of the
Investors hereunder. The Collection Agent, if other than NMC, shall as soon as
practicable upon demand, deliver to the Transferor all Records in its possession
which evidence or relate to indebtedness of an Obligor which is not a
Receivable.
(c) On or before 90 days after the end of each fiscal year of
the Collection Agent, beginning with the fiscal year ending December 31, 1997,
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), the Business Credit Field
Exam Group of Bank of America, N.A. or such other Person as may be
70
approved by each Administrative Agent, to furnish a report to each
Administrative Agent to the effect that they have (any of the foregoing being an
"Auditor"): (i) compared the information contained in the Investor Reports
delivered during such fiscal year then ended with the information contained in
the Contracts and the Collection Agent's records and computer systems for such
period, and that, on the basis of such examination and comparison, such Auditor
is of the opinion that the information contained in the Investor Reports
reconciles with the information contained in the Contracts and the Collection
Agent's records and computer system and that the servicing of the Receivables
has been conducted in compliance with this Agreement, (ii) confirmed the Net
Receivables Balance as of the end of each Tranche Period during such fiscal
year, and (iii) verified that the Receivables treated by the Collection Agent as
Eligible Receivables in fact satisfied the requirements of the definition
thereof contained herein except, in each case, for (a) such exceptions as such
Auditor shall believe to be immaterial (which exceptions need not be enumerated)
and (b) such other exceptions as shall be set forth in such statement.
(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
Class A Bank Investors' ownership of Receivables to each Obligor and direct that
payments be made directly to the Agent or its designee.
(iii) The Transferor shall, at the Agent's request, (A) assemble
all of the Records, and shall make the same available to the Agent or its
designee at a place selected by the Agent or its designee, and (B) segregate all
cash, checks and other instruments received by it from time to time constituting
Collections of Receivables in a manner acceptable to the Agent and shall,
promptly upon receipt, remit all such cash, checks and instruments, duly
endorsed or with duly executed instruments of transfer, to the Agent or its
designee.
(iv) The Transferor hereby authorizes the Agent to take, to the
extent permitted by applicable law, any and all steps in the Transferor's or any
Originating Entity's name (which power, in the case of each Originating Entity,
the Transferor is authorized to grant pursuant to authority granted to the
Transferor under the Receivables Purchase Agreement) and on behalf of the
Transferor and such Originating Entity necessary or desirable, in the
71
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 the Concentration Account or to the Agent or its designee,
EXCEPT for any such payment in respect of such Receivables or Related Security
or any assignment thereof that is established by, or made pursuant to, the order
of a court of competent jurisdiction.
SECTION 6.4. COLLECTION AGENT DEFAULT. The occurrence of any one or
more of the following events shall constitute a Collection Agent Default:
(a) (i) the Collection Agent or, to the extent that the
Transferor, the Seller or any Affiliate of the Transferor or the Seller is then
acting as Collection Agent, the Transferor, the Seller or such Affiliate, as
applicable, shall fail to observe or perform any term, covenant or agreement to
be observed or performed (A) under Section 5.3(d), 5.3(g) or 5.3(h) or Section
5.4, or (B) under Section 5.3 (other than subsection (d), (g) or (h) thereof)
and such failure shall continue for five (5) days, or (ii) the Collection Agent
or, to the extent that the Transferor, the Seller or any Affiliate of the
Transferor, or the Seller is then acting as Collection Agent, the Transferor,
the Seller or such Affiliate, as applicable, shall fail to observe or perform
any term, covenant or agreement hereunder (other than as referred to in clause
(i) or (iii) of this Section 6.4(a)) or under any of the other Transaction
Documents to which such Person is a party or by which such Person is bound, and
such failure shall remain unremedied for ten (10) days, or (iii) the Collection
Agent or, the extent that the Transferor, the Seller or any Affiliate of the
Transferor, or the Seller is then acting as Collection Agent, the Transferor,
the Seller or such Affiliate, as applicable, shall fail to make any payment or
deposit required to be made by it hereunder when due or the Collection Agent
shall fail to observe or perform any term, covenant or agreement on the
Collection Agent's part to be performed under Section 2.8(b) hereof; or
(b) any representation, warranty, certification or statement
made by the Collection Agent or the Transferor, the Seller or any Affiliate of
the Transferor or the Seller (in the event that the Transferor, the Seller or
such Affiliate is then acting as the Collection Agent) in this Agreement, the
Receivables Purchase Agreement, the Transferring Affiliate Letter, the BMA
Transfer Agreement or in any of the other Transaction Documents or in any
certificate or report delivered by it pursuant to any of the foregoing shall
prove to have been incorrect in any material respect when made or deemed made;
or
(c) failure of the Collection Agent or any of its Subsidiaries,
FMC, or FMCH to pay when due any amounts due under any agreement under which any
Indebtedness greater that $5,000,000 is governed; or the default by the
Collection Agent or any of its Subsidiaries, FMC or FMCH in the performance of
any term, provision of condition contained in
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any agreement under which any Indebtedness greater than $5,000,000 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, FMC or FMCH greater than $5,000,000 shall be
declared to be due and payable or required to be prepaid (other than by a
regularly scheduled payment and other than in the case of an instrument stated
to be payable on demand) prior to the scheduled date of maturity thereof; or
(d) any Event of Bankruptcy shall occur with respect to the
Collection Agent or any of its Subsidiaries; PROVIDED that in the case of any
immaterial Subsidiary of the Collection Agent, if an Event of Bankruptcy shall
have occurred by reason of any institution of an involuntary proceeding against
such Subsidiary, such Event of Bankruptcy shall not constitute a Collection
Agent Default unless such proceeding shall have remained undismissed or unstayed
for a period of 60 days; or
(e) there shall have occurred any material adverse change in the
operations of the Collection Agent since the end of the last fiscal year ending
prior to the date of its appointment as Collection Agent hereunder or any other
event shall have occurred which, in the commercially reasonably judgment of the
Agent, materially and adversely affects the Collection Agent's ability to either
collect the Receivables or to perform under this Agreement.
SECTION 6.5. RESPONSIBILITIES OF THE TRANSFEROR. Anything herein to
the contrary notwithstanding, the Transferor shall, and/or shall cause each
Originating Entity to, (i) perform all of each Originating Entity's obligations
under the Contracts related to the Receivables to the same extent as if
interests in such Receivables had not been sold hereunder and under the
Transferring Affiliate Letter, the BMA Transfer Agreement and/or the Receivables
Purchase Agreement, as applicable, and the exercise by the Agent, any
Administrative Agent and the Investors of their rights hereunder and under the
Transferring Affiliate Letter, the BMA Transfer Agreement and the Receivables
Purchase Agreement shall not relieve the Transferor or the Seller from such
obligations and (ii) pay when due any taxes, including without limitation, any
sales taxes payable in connection with the Receivables and their creation and
satisfaction. Neither the Agent nor any of the Investors or the Administrative
Agents shall have any obligation or liability with respect to any Receivable or
related Contracts, nor shall it be obligated to perform any of the obligations
of the Seller thereunder.
ARTICLE VII
TERMINATION EVENTS
SECTION 7.1. TERMINATION EVENTS. The occurrence of any one or more of
the following events shall constitute a Termination Event:
(a) the Transferor or the Collection Agent shall fail to make
any payment or deposit to be made by it hereunder or under the Receivables
Purchase Agreement when due hereunder or thereunder; or
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(b) any representation, warranty, certification or statement
made or deemed made by the Transferor in this Agreement, by FMC or FMCH under
the Parent Agreement, or by the Transferor, FMC, 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, FMC 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 $5,000,000 is governed; or the default by the Seller,
FMCH, FMC 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, FMC or any
Transferring Affiliate greater than $5,000,000 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, FMC or any
Transferring Affiliate greater than $5,000,000 shall be
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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, FMC, FMCH or NMC; PROVIDED that, in the case
of any Event of Bankruptcy relating to any Transferring Affiliate, such Event of
Bankruptcy shall not constitute a Termination Event hereunder if at such time
the Percentage Factor does not exceed the Maximum Percentage Factor after
reducing the Net Receivables Balance by an amount equal to the aggregate
Outstanding Balance of all Receivables otherwise included in the calculation of
Net Receivables Balance which either (i) have been originated by such
Transferring Affiliate or (ii) are owing from any Obligor that shall have been
directed to remit payments thereon to a Special Account that is a Special
Account to which Obligors in respect of the Transferring Affiliate that is the
subject of such Event of Bankruptcy shall have been directed to remit payments;
or
(f) the Agent, on behalf of the Investors, shall, for any
reason, fail or cease to have a valid and perfected first priority ownership or
security interest in the Affected Assets free and clear of any Adverse Claims;
or the Transferor shall, for any reason, fail or cease to have all right, title
and interest in and to all Receivables, Related Security and Collections, free
and clear of any Adverse Claim, subject only to the interests therein of the
Agent, on behalf of the Investors; or
(g) a Collection Agent Default shall have occurred; or
(h) the Transferring Affiliate Letter, the BMA Transfer
Agreement, the Receivables Purchase Agreement or any other Transaction Document
shall have terminated; or any material provision thereof shall cease for any
reason to be valid and binding on any party thereto or any party shall so state
in writing; or any party to any Transaction Document (other than the Agent, any
Administrative Agent or any Investor) shall fail to perform any material term,
provision or condition contained in any Transaction Document on its part to be
performed or a default shall otherwise occur thereunder; or
(i) any of FMCH, NMC, the Transferor or the Seller shall enter
into any transaction or merger whereby it is not the surviving entity; or
(j) there shall have occurred any material adverse change in the
operations of any of FMCH, NMC, the Transferor or the Seller since December 31,
1996 or any other Material Adverse Effect shall have occurred; or
(k) any Liquidity Provider or Credit Support Provider shall have
given notice that an event of default has occurred and is continuing under any
of its respective agreements with a Conduit Investor; or
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(l) the Commercial Paper issued by a Conduit Investor or its
Related Issuer shall not be rated at least "A-2" by Standard & Poor's and at
least "P-2" by Moody's, unless any rating of such Commercial Paper shall be
lower than such level solely as a result of the correspondingly lower rating of
the Credit Support Provider for such Conduit Investor; or
(m) (i) the Percentage Factor exceeds the Maximum Percentage
Factor unless the Transferor reduces the Net Investment or increases the balance
of the Affected Assets on the next Business Day so as to reduce the Percentage
Factor to less than or equal to the Maximum Percentage Factor; (ii) the
Percentage Factor equals or exceeds 100% at any time; or (iii) the portion of
the Net Investment held by the Investors in any Related Group plus, in the case
where any portion of such Net Investment is held by a Conduit Investor, the
Interest Component of all outstanding Related Commercial Paper with respect to
such Conduit Investor, shall exceed the applicable Related Group Limit at any
time; or
(n) the Dilution Ratio for any month exceeds 12%; or
(o) the Loss-to-Liquidation Ratio for any month exceeds 8%; or
(p) the Default Ratio for any month exceeds 12%; or
(q) a default shall occur under the Parent Agreement; or the
Parent Agreement shall for any reason terminate; or any material provision
thereof shall cease to be valid and binding on any party thereto or any party
thereto shall so state in writing; or
(r) (i) the Seller shall cease to own, free and clear of any
Adverse Claim all of the outstanding shares of capital stock of the Transferor
on a fully diluted basis; or (ii) FMCH shall cease to own, directly or
indirectly, free and clear of any Adverse Claim all of the outstanding shares of
capital stock of any of the Originating Entities or the Collection Agent on a
fully diluted basis; or (iii) FMC shall cease to own, directly or indirectly,
free and clear of any Adverse Claim other than a pledge made pursuant to the
Bank Revolver, all of the Voting Stock of FMCH other than the preferred stock of
FMCH outstanding as of the date hereof (which preferred stock outstanding as of
the date hereof shall not represent more than 20% of the total Voting Stock of
FMCH); or (iv) Fresenius AG, a corporation organized under the laws of the
Federal Republic of Germany, shall cease to own, directly or indirectly, free
and clear of any Adverse Claim at least a majority of the Voting Stock of FMC;
or
(s) both (i) FMCH's long-term public senior debt securities
shall be rated lower than B+ by Standard & Poor's or B1 by Moody's, or if
neither Standard & Poor's nor Moody's shall rate such securities, FMCH's
long-term senior debt shall have a deemed rating of lower than B+ as determined
by the Agent using its standard bond rating methodology, and (ii) FMC's
long-term public senior debt securities shall be rated lower than B+ by Standard
& Poor's or B1 by Moody's, or if neither Standard & Poor's nor Moody's shall
rate such securities, FMC's long-term senior debt shall have a deemed rating of
lower than B+ as determined by the Agent using its standard bond rating
methodology.
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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
(excluding, for so long as the Percentage Factor exceeds 100%, the
Administrative Agent for the Class B Related Group) or the Majority Investors
shall, by notice to the Transferor and the Collection Agent declare the
Termination Date to have occurred; PROVIDED, HOWEVER, that in the case of any
event described in Section 7.1(e), 7.1(f), 7.1(m)(ii), 7.1(m)(iii) or 7.1(r)
above, the Termination Date shall be deemed to have occurred automatically upon
the occurrence of such event. Upon any such declaration or automatic occurrence,
the Agent shall have, in addition to all other rights and remedies under this
Agreement or otherwise, all other rights and remedies provided under the UCC of
the applicable jurisdiction and other applicable laws, all of which rights shall
be cumulative.
(b) At all times after the declaration or automatic occurrence
of the Termination Date pursuant to Section 7.2(a), the Base Rate plus 2.00%
shall be the Tranche Rate applicable to the Net Investment for all existing and
future Tranches.
ARTICLE VIII
INDEMNIFICATION; EXPENSES; RELATED MATTERS
SECTION 8.1. INDEMNITIES BY THE TRANSFEROR. Without limiting any other
rights which the Agent, the Administrative Agents or the Investors may have
hereunder or under applicable law, the Transferor hereby agrees to indemnify the
Investors, the Agent, the Administrative Agents, the Collateral Agents, the
Liquidity Providers and the Credit Support Providers and their respective
successors and permitted assigns and their respective officers, directors and
employees (collectively, "INDEMNIFIED PARTIES") from and against any and all
damages, losses, claims, liabilities, costs and expenses, including, without
limitation, reasonable attorneys' fees (which such attorneys may be employees of
a Liquidity Provider, a Credit Support Provider, the Agent, an Administrative
Agent or a Collateral Agent, as applicable) and disbursements (all of the
foregoing being collectively referred to as "INDEMNIFIED AMOUNTS") awarded
against or incurred by any of them in any action or proceeding between the
Transferor or any Parent Group Member (including any Parent Group Member, in its
capacity as the Collection Agent) and any of the Indemnified Parties or between
any of the 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
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officers of any Parent Group Member (including any Parent Group Member, in
its capacity as the Collection Agent) under or in connection with this
Agreement, the Receivable Purchase Agreement, the Parent Agreement, the
Transferring Affiliate Letter, the BMA Transfer Agreement, any of the other
Transaction Documents, any Investor Report or any other information or
report delivered by any Parent Group Member pursuant to or in connection
with any Transaction Document, which shall have been false or incorrect in
any material respect when made or deemed made;
(ii) the failure by any Parent Group Member (including any Parent
Group Member, in its capacity as the Collection Agent) to comply with any
applicable law, rule or regulation (including, without limitation, any
CHAMPUS/VA Regulation, any Medicaid Regulation or any Medicare Regulation),
including with respect to any Receivable or the related Contract, or the
nonconformity of any Receivable or the related Contract with any such
applicable law, rule or regulation;
(iii) the failure (x) to vest and maintain vested in the Agent,
on behalf of the Investors, an undivided first priority, perfected
percentage ownership interest (to the extent of the Transferred Interest)
in the Affected Assets free and clear of any Adverse Claim or (y) to create
or maintain a valid and perfected first priority security interest in favor
of the Agent, for the benefit of the Investors, in the Affected Assets as
contemplated pursuant to Section 10.11, free and clear of any Adverse
Claim;
(iv) the failure to file, or any delay in filing, financing
statements, continuation statements, or other similar instruments or
documents under the UCC of any applicable jurisdiction or other applicable
laws with respect to any of the Affected Assets;
(v) any dispute, claim, offset or defense (other than discharge
in bankruptcy) of the Obligor to the payment of any Receivable (including,
without limitation, a defense based on such Receivable or the related
Contract not being the legal, valid and binding obligation of such Obligor
enforceable against it in accordance with its terms), or any other claim
resulting from the sale of merchandise or services related to such
Receivable or the furnishing or failure to furnish such merchandise or
services;
(vi) any failure of the Collection Agent to perform its duties or
obligations in accordance with the provisions hereof; or
(vii) any products liability claim or personal injury or property
damage suit or other similar or related claim or action of whatever sort
arising out of or in connection with merchandise or services which are the
subject of any Receivable;
(viii) the transfer of an ownership interest in any Receivable
other than an Eligible Receivable;
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(ix) the failure by any Parent Group Member (individually or as
Collection Agent) to comply with any term, provision or covenant contained
in this Agreement or any of the other Transaction Documents to which it is
a party or to perform any of its respective duties under the Contracts;
(x) the Percentage Factor exceeding the Maximum Percentage
Factor at any time;
(xi) the failure of any Originating Entity to pay when due any
taxes, including without limitation, sales, excise or personal property
taxes payable in connection with any of the Receivables;
(xii) any repayment by any Indemnified Party of any amount
previously distributed in reduction on Net Investment which such
Indemnified Party believes in good faith is required to be made;
(xiii) the commingling by the Transferor, any Originating Entity
or the Collection Agent of Collections of Receivables at any time with
other funds;
(xiv) any investigation, litigation or proceeding 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 or the Concentration Account Bank to remit any amounts held by it
pursuant to the instructions set forth in the applicable Special Account
Letter 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 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;
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(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 or (in the case of Enterprise) the Liquidity
Provider Agreement to which Enterprise is a party to the Transferor and
each Other Transferor; and PROVIDED, FURTHER, that if such Indemnified
Amounts are attributable to any Parent Group Member and not attributable to
any Other Transferor, the Transferor shall be solely liable for such
Indemnified Amounts or if such Indemnified Amounts are attributable to
Other Transferors and not attributable to any Parent Group Member, such
Other Transferors shall be solely liable for such Indemnified Amounts;
(xix) any reduction or extinguishment of, or any failure by any
Obligor to pay (in whole or in part), any Receivable or any Related
Security with respect thereto as a result of or on account of any violation
of or prohibition under any law, rule or regulation now or hereafter in
effect from time to time, including without limitation and CHAMPUS/VA
Regulation, any Medicaid Regulation or any Medicare Regulation, or as a
result of or on account of the entering of any judicial or regulatory order
or agreement adversely affecting the Transferor or any Parent Group Member;
or
(xx) any failure by the Transferor or any Parent Group Member to
maintain all governmental and other authorization and approvals necessary
to render the services, or sell the merchandise, resulting in Receivables.
SECTION 8.2. INDEMNITY FOR TAXES, RESERVES AND EXPENSES. (a) If after
the date hereof, the adoption of any Law or bank regulatory guideline or any
amendment or change in the interpretation of any existing or future Law or bank
regulatory guideline by any Official Body charged with the administration,
interpretation or application thereof, or the compliance with any directive of
any Official Body (in the case of any bank regulatory guideline, whether or not
having the force of Law):
(i) shall subject any Indemnified Party to any tax, duty or
other charge (other than Excluded Taxes) with respect to this Agreement,
the other Transaction Documents, the ownership, maintenance or financing of
the Transferred Interest, the Receivables or payments of amounts due
hereunder, or shall change the basis of taxation of payments to any
Indemnified Party of amounts payable in respect of this Agreement, the
other Transaction Documents, the ownership, maintenance or financing of the
Transferred Interest, the Receivables or payments of amounts due hereunder
or its obligation to advance funds hereunder, under a Liquidity Provider
Agreement or the credit support furnished by a Credit Support Provider or
otherwise in respect of this Agreement, the other Transaction Documents,
the ownership, maintenance or financing of the Transferred Interest or the
Receivables (except for changes in the rate of general
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corporate, franchise, net income or other income tax imposed on such
Indemnified Party by the jurisdiction in which such Indemnified Party's
principal executive office is located);
(ii) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve
System) against assets of, deposits with or for the account of, or credit
extended by, any Indemnified Party or shall impose on any Indemnified Party
or on the United States market for certificates of deposit or the London
interbank market any other condition affecting this Agreement, the other
Transaction Documents, the ownership, maintenance or financing of the
Transferred Interest, the Receivables or payments of amounts due hereunder
or its obligation to advance funds hereunder under a Liquidity Provider
Agreement or the credit support provided by a Credit Support Provider or
otherwise in respect of this Agreement, the other Transaction Documents,
the ownership, maintenance or financing of the Transferred Interest or the
Receivables; or
(iii) imposes upon any Indemnified Party any other expense
(including, without limitation, reasonable attorneys' fees and expenses,
and expenses of litigation or preparation therefor in contesting any of the
foregoing) with respect to this Agreement, the other Transaction Documents,
the ownership, maintenance or financing of the Transferred Interest, the
Receivables or payments of amounts due hereunder or its obligation to
advance funds hereunder under a Liquidity Provider Agreement or the credit
support furnished by a Credit Support Provider or otherwise in respect to
this Agreement, the other Transaction Documents, the ownership, maintenance
or financing of the Transferred Interests or the Receivables, and the
result of any of the foregoing is to increase the cost to such Indemnified
Party with respect to this Agreement, the other Transaction Documents, the
ownership, maintenance or financing of the Transferred Interest, the
Receivables, the obligations hereunder, the funding of any purchases
hereunder, a Liquidity Provider Agreement or a Credit Support Agreement, by
an amount deemed by such Indemnified Party to be material,
then, within ten (10) days after demand by such Indemnified Party through any
Administrative Agent, the Transferor shall pay to such Administrative Agent for
the benefit of such Indemnified Party, such additional amount or amounts as will
compensate such Indemnified Party for such tax, increased cost or reduction.
(b) If any Indemnified Party shall have determined that after
the date hereof, the adoption of any applicable Law or bank regulatory guideline
regarding capital adequacy, or any change therein, or any change in the
interpretation thereof by any Official Body, or any directive regarding capital
adequacy (in the case of any bank regulatory guideline, 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 to a level
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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.
(c) Each Administrative Agent will promptly notify the
Transferor of any event of which it has knowledge, occurring after the date
hereof, which will entitle an Indemnified Party to compensation pursuant to this
Section 8.2. A notice by an Administrative Agent or the applicable Indemnified
Party claiming compensation under this Section and setting forth the additional
amount or amounts to be paid to it hereunder shall be conclusive in the absence
of manifest error. In determining such amount, such Administrative Agent or any
applicable Indemnified Party may use any reasonable averaging and attributing
methods.
(d) Anything in this Section 8.2 to the contrary
notwithstanding, if a Conduit Investor enters into agreements for the
acquisition of interests in receivables from one or more Other Transferors, such
Conduit Investor shall allocate the liability for any amounts under this Section
8.2 which are in connection with a Credit Support Agreement or the credit
support provided by the Credit Support Provider or, in the case of Enterprise,
the Liquidity Provider Agreement to which Enterprise is a party ("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.
SECTION 8.3. TAXES. (a) All payments made hereunder by the Transferor
or the Collection Agent (each, a "Payor") to any Investor, any Administrative
Agent or the Agent (each, a "Recipient") shall be made free and clear of and
without deduction for any present or future income, excise, stamp or franchise
taxes and any other taxes, fees, duties, withholdings or other charges of any
nature whatsoever imposed by any taxing authority on any recipient (or any
assignee of such parties) (such non-excluded items being called "Taxes"), but
excluding franchise taxes and taxes imposed on or measured by the recipient's
net income or gross receipts ("Excluded Taxes"). In the event that any
withholding or deduction from any payment made by the Payor hereunder is
required in respect of any Taxes, then such Payor shall:
(i) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(ii) promptly forward to each Administrative Agent an official
receipt or other documentation satisfactory to the Administrative Agent
evidencing such payment to such authority; and
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(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 Class
A Bank Investor that is not organized under the laws of the United States of
America or a state thereof if such Class A Bank Investor shall have failed to
comply with the requirements of paragraph (b) of this Section 8.3 as of the time
such Taxes are due and payable.
If the Payor fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Recipient the required receipts or other
required documentary evidence, the Payor shall indemnify the Recipient for any
incremental Taxes, interest, or penalties that may become payable by any
Recipient as a result of any such failure.
(b) Each Investor that is not incorporated under the laws of the
United States of America or a state thereof shall:
(X) (i) on or before the date of any payment by a Payor to such
Investor, deliver to such Payor, the Agent and the Administrative Agent for
its Related Group (A) two (2) duly completed copies of United States
Internal Revenue Service Form 1001 or 4224, or successor applicable form,
as the case may be, certifying that it is entitled to receive payments
hereunder without deduction or withholding of any United States federal
income taxes and (B) an Internal Revenue Service Form W-8 or W-9, or
successor applicable form, as the case may be, certifying that it is
entitled to an exemption from United States backup withholding tax;
(ii) deliver to each Payor, the Agent and the Administrative Agent for
its Related Group two (2) further copies of any such form or certification
on or before the date that any such form or certification expires or
becomes obsolete and after the occurrence of any event requiring a change
in the most recent form previously delivered by it to such Payor; and
(iii) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by either Payor, the
Agent or the Administrative Agent for its Related Group; or
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(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 properly completed and duly
executed Internal Revenue Service Form W-8 or applicable successor form;
(ii) deliver to each Payor, the Agent and its Administrative Agent two
further properly completed and duly executed copies of such Form W-8
expires or becomes obsolete or after the occurrence of any event requiring
a change in the most recent form previously delivered by it to such Payor
or upon the request of such Payor; and
(iii) obtain such extensions of time for filing and completing such
forms or certifications as may be reasonably requested by either Payor, the
Agent or its Administrative Agent;
unless in any such case any change in treaty, law or regulation has occurred
after the date such Person becomes an Investor hereunder which renders all such
forms inapplicable or which would prevent such Investor from duly completing and
delivering any such form with respect to it and such Investor so advises each
Payor, the Agent and its Administrative Agent. Each Person that shall become an
Investor or a participant of an Investor pursuant to subsection 10.6 shall, upon
the effectiveness of the related transfer, be required to provide all of the
forms, certifications and statements required pursuant to this subsection,
PROVIDED that in the case of a participant of an Investor the obligations of
such participant of an Investor pursuant to this subsection (b) shall be
determined as if the participant of an Investor were an Investor except that
such participant of an Investor shall furnish all such required forms,
certifications and statements to the Investor from which the related
participation shall have been purchased.
SECTION 8.4. OTHER COSTS, EXPENSES AND RELATED MATTERS. (a) The
Transferor agrees, upon receipt of a written invoice, to pay or cause to be
paid, and to save the Investors, the Administrative Agents and the Agent
harmless against liability for the payment of, all reasonable out-of-pocket
expenses (including, without limitation, attorneys', accountants' and other
third parties' fees and expenses, any filing fees and expenses incurred by
officers or employees of any of the Investors, the Administrative Agents and/or
the Agent) or intangible,
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documentary or recording taxes incurred by or on behalf of any Investor, any
Administrative Agent or the Agent (i) in connection with the negotiation,
execution, delivery and preparation of this Agreement, the other Transaction
Documents and any documents or instruments delivered pursuant hereto and thereto
and the transactions contemplated hereby or thereby (including, without
limitation, the perfection or protection of the Transferred Interest) and (ii)
from time to time (a) relating to any amendments, waivers or consents under this
Agreement and the other Transaction Documents, (b) arising in connection with
any Investor's, any Administrative Agent's, the Agent's or any Collateral
Agent's enforcement or preservation of rights (including, without limitation,
the perfection and protection of the Transferred Interest under this Agreement),
or (c) arising in connection with any audit, dispute, disagreement, litigation
or preparation for litigation involving this Agreement or any of the other
Transaction Documents (all of such amounts, collectively, "TRANSACTION COSTS").
(b) With respect to any Tranche to which all or any portion of
the Net Investment held by any of the Investors in a Related Group has been
allocated, the Transferor shall pay to the Administrative Agent for such Related
Group, for the account of each applicable Investor, on demand any Early
Collection Fee due on account of the reduction of such Tranche on a day prior to
the last day of its Tranche Period.
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
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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 Class A
Bank Investors and Class B Investors, agree to (i) amend, modify or waive any
provision of this Agreement in any way which would (A) reduce or impair
Collections or the payment of Discount or fees payable hereunder to the Class A
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, FMC 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 Class A Bank Investor and, so long as the Commitments of the
Class B Investors are greater than zero, each Class B Investor. The Agent shall
not, without the prior written consent of the Required Administrative Agents,
agree to amend, modify or waive any provision of this Agreement, the
Transferring Affiliate Letter, the BMA Transfer Agreement, the Receivables
Purchase Agreement or the Parent Agreement. The Agent shall not agree to any
amendment of this Agreement which increases the dollar amount of any Investor's
Commitment without the prior consent of such Investor. In addition, the Agent
shall not agree to any amendment of this Agreement not specifically described in
the two preceding sentences without the consent of the Majority Investors (which
consent shall not be unreasonably withheld or delayed). In the event the Agent
requests any Investor's consent pursuant to the foregoing provisions and the
Agent does not receive a consent (either positive or negative) from such
Investor within 10 Business Days of such Investor's receipt of such request,
then such Investor (and its percentage interest hereunder) shall be disregarded
in determining whether the Agent shall have obtained sufficient consent
hereunder.
(b) The Agent shall exercise such rights and powers vested in it
by this Agreement and the other Transaction Documents, and use the same degree
of care and skill in
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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 (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 Class A Bank Investors
and the Class B Investors agree to indemnify the Agent (to the extent not
reimbursed by the Transferor), ratably in accordance with their respective
Commitments, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against the Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by the Agent, any of the other
Transaction Documents hereunder or thereunder,
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provided that the Class A Bank Investors and Class B 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 Class A Bank Investors and Class B Investors agree to
reimburse the Agent, ratably in accordance with their respective Commitments,
promptly upon demand for any out-of-pocket expenses (including counsel fees)
incurred by the Agent in connection with the administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement and the other Transaction Documents, to the extent that such
expenses are incurred in the interests of or otherwise in respect of the Class A
Bank Investors and Class B Investors hereunder and/or thereunder and to the
extent that the Agent is not reimbursed for such expenses by the Transferor.
SECTION 9.5. SUCCESSOR AGENT. The Agent may resign at any time by
giving written notice thereof to each Investor and the Transferor and may be
removed at any time with cause by the Majority Investors. Upon any such
resignation or removal, the Majority Investors shall appoint a successor Agent.
Each Investor agrees that it shall not unreasonably withhold or delay its
approval of the appointment of a successor Agent. If no such successor Agent
shall have been so appointed, and shall have accepted such appointment, within
30 days after the retiring Agent's giving of notice of resignation or the
Majority Investors' removal of the retiring Agent, then the retiring Agent may,
on behalf of the Investors, appoint a successor Agent which successor Agent
shall be either (i) a commercial bank organized under the laws of the United
States or of any state thereof and have a combined capital and surplus of at
least $50,000,000 or (ii) an Affiliate of such a bank. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Article IX shall continue to inure to its benefit as to any actions taken
or omitted to be taken by it while it was Agent under this Agreement.
SECTION 9.6. PAYMENTS BY THE AGENT. All amounts received by the Agent
on behalf of the Investors shall be paid by the Agent to the Investors (at their
respective accounts specified in their respective Assignment and Assumption
Agreements) on the Business Day received by the Agent, unless such amounts are
received after 12:00 noon on such Business Day, in which case the Agent shall
use its reasonable efforts to pay such amounts to the Investors on such Business
Day, but, in any event, shall pay such amounts to the Investors not later than
the following Business Day. All amounts received by the Agent hereunder on
behalf of the Investors shall be allocated among the Related Groups in
accordance with Sections 2.5 and/or 2.6, as applicable. To the extent any
amounts are not allocated pursuant to such sections, such amounts shall be
allocated, FIRST, to the members of the Class A Related Groups ratably in
proportion to the portion of the Class A Aggregate Unpaids owing to each, until
the Class A Aggregate Unpaids have been reduced to zero, and SECOND, to the
Class B Investors ratably in proportion to the Aggregate Unpaids owing to each.
For purposes of the foregoing, the Agent
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shall be deemed to be a member of the Related Group that includes Enterprise.
SECTION 9.7. Bank Commitment; Assignment to Class A Bank Investors.
(a) BANK COMMITMENT. At any time on or prior to the Commitment
Termination Date, in the event that a Conduit Investor does not effect an
Incremental Transfer as requested under Section 2.2(a), then at any time, the
Transferor shall have the right to require such Conduit Investor to assign its
interest in the Net Investment in whole to the Class A Bank Investors in its
Related Group pursuant to this Section 9.7. In addition, at any time on or prior
to the Commitment Termination Date, (i) upon the occurrence of a Termination
Event that results in the Termination Date or (ii) if a Conduit Investor elects
to give notice to the Transferor of a Reinvestment Termination Date, the
Transferor hereby requests and directs that such Conduit Investor assign its
interest in the Net Investment in whole to the Class A Bank Investors in its
Related Group pursuant to this Section 9.7 and the Transferor hereby agrees to
pay the amounts described in Section 9.7(d) below. Provided that the Net Asset
Test is satisfied, upon any such election by a Conduit Investor or any such
request by the Transferor to such Conduit Investor, such Conduit Investor shall
make such assignment and the Class A Bank Investors in its Related Group shall
accept such assignment and shall assume all of such Conduit Investor's
obligations hereunder. In connection with any assignment from a Conduit Investor
to the Class A Bank Investors in its Related Group pursuant to this Section 9.7,
each Class A Bank Investor shall, on the date of such assignment, pay to such
Conduit Investor an amount equal to its Assignment Amount. Upon any assignment
by a Conduit Investor to the Class A Bank Investors in its Related Group as
contemplated hereunder, such Conduit Investor shall cease to make any additional
Incremental Transfers hereunder.
(b) ASSIGNMENT. No Class A Bank Investor may assign all or a
portion of its interests in the Net Investment, the Receivables, and
Collections, Related Security and Proceeds with respect thereto and its rights
and obligations hereunder to any Person unless approved in writing by the
Administrative Agent for its Related Group, on behalf of the related Conduit
Investor. Without limiting the generality of the foregoing, it is understood for
the avoidance of doubt that an Administrative Agent may condition any approval
on its receipt of written confirmation from S&P and ▇▇▇▇▇'▇ 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 Class A Bank Investors or by a Class 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
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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 Class A Bank Investors, as
assignees, shall (x) be obligated to fund Incremental Transfers under Section
2.2(a) in accordance with the terms thereof, notwithstanding that related
Conduit Investor was not so obligated and (y) not have the right to elect the
commencement of the amortization of the Net Investment pursuant to the
definition of "Reinvestment Termination Date", notwithstanding that the related
Conduit Investor had such right) and (ii) the assignor shall relinquish its
rights with respect to such interest for all purposes of this Agreement and
under the other Transaction Documents to which such assignor is or, immediately
prior to such assignment, was a party. No such assignment shall be effective
unless a fully executed copy of the related Assignment and Assumption Agreement
shall be delivered to the Agent, the Administrative Agent for the applicable
Related Group and the Transferor. All costs and expenses of the Agent, the
applicable Administrative Agent and the assignor and assignee incurred in
connection with any assignment hereunder shall be borne by the Transferor and
not by the assignor or any such assignee. No Class A Bank Investor shall assign
any portion of its Commitment hereunder without also simultaneously assigning an
equal portion of its interest in the applicable Liquidity Provider Agreement.
(c) EFFECTS OF ASSIGNMENT. By executing and delivering an
Assignment and Assumption Agreement, the assignor and assignee thereunder
confirm to and agree with each other and the other parties hereto as follows:
(i) other than as provided in such Assignment and Assumption Agreement, the
assignor makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement, the other Transaction Documents or any other
instrument or document furnished pursuant hereto or thereto or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement, the other Transaction Documents or any such other instrument or
document; (ii) the assignor makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Transferor, any
Parent Group Member or the Collection Agent or the performance or observance by
the Transferor, any Parent Group Member or the Collection Agent of any of their
respective obligations under this Agreement, the Receivables Purchase Agreement,
the Transferring Affiliate Letter, the BMA Transfer Agreement, the Parent
Agreement, the other Transaction Documents or any other instrument or document
furnished pursuant hereto; (iii) such assignee confirms that it has received a
copy of this Agreement, the Receivables Purchase Agreement, the Transferring
Affiliate Letter, the BMA Transfer Agreement, the Parent Agreement, and such
other instruments, documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such Assignment 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
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Transaction Documents and any other instrument or document furnished pursuant
hereto or thereto as are delegated to the Agent by the terms hereof or thereof,
together with such powers as are reasonably incidental thereto and to enforce
its respective rights and interests in and under this Agreement, the other
Transaction Documents, the Receivables, the Contracts and the Related Security;
(vi) such assignee appoints and authorizes the applicable Administrative Agent
to take such action as agent on its behalf and to exercise such powers under
this Agreement, the other Transaction Documents and any other instrument or
document furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such powers
as are reasonably incidental thereto and to enforce its respective rights and
interests in and under this Agreement, the other Transaction Documents, the
Receivables, the Contracts and the Related Security, (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations which
by the terms of this Agreement and the other Transaction Documents are required
to be performed by it as the assignee of the assignor; and (viii) such assignee
agrees that it will not institute against any Conduit Investor any proceeding of
the type referred to in Section 10.9 prior to the date which is one year and one
day after the payment in full of all Commercial Paper issued by such Conduit
Investor or its Related CP Issuer.
(d) TRANSFEROR'S OBLIGATION TO PAY CERTAIN AMOUNTS; ADDITIONAL
ASSIGNMENT AMOUNT. The Transferor shall pay to the Administrative Agent for a
Conduit Investor or, in the case of GMFC, to such Conduit Investor, for the
account of such Conduit Investor, in connection with any assignment by such
Conduit Investor to the Class A Bank Investors in its Related Group pursuant to
this Section 9.7, an aggregate amount equal to all Discount to accrue through
the end of each outstanding Tranche Period plus all other Aggregate Unpaids
(other than the Net Investment) owing to such Conduit Investor. To the extent
that such Discount relates to interest or discount on Related Commercial Paper,
if the Transferor fails to make payment of such amounts at or prior to the time
of assignment by such Conduit Investor to the Class A Bank Investors in its
Related Group, such amount shall be paid by such Class A Bank Investors (in
accordance with their respective Pro Rata Shares) to such Conduit Investor as
additional consideration for the interests assigned to such Class A Bank
Investors and the amount of the "Net Investment" hereunder held by such Class A
Bank Investors shall be increased by an amount equal to the additional amount so
paid by such Class A Bank Investors.
(e) ADMINISTRATION OF AGREEMENT AFTER ASSIGNMENT. After any
assignment by a Conduit Investor to the Class A Bank Investors in its Related
Group pursuant to this Section 9.7 (and the payment of all amounts owing to such
Conduit Investor in connection therewith), all rights of the related Collateral
Agent set forth herein shall be deemed to be afforded to the Administrative
Agent for such Related Group on behalf of such Class A Bank Investors instead of
such Collateral Agent.
(f) PAYMENTS. After any assignment by a Conduit Investor to the
Class A Bank Investors in its Related Group pursuant to this Section 9.7, all
payments to be made hereunder by the Transferor or the Collection Agent to such
Conduit Investor shall be made to the applicable Administrative Agent's account
as such account shall have been notified to the Transferor and the Collection
Agent.
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(g) DOWNGRADE OF CLASS A BANK INVESTOR. If (at any time prior to
any assignment by a Conduit Investor to the Class A Bank Investors in its
Related Group as contemplated pursuant to this Section 9.7) the short term debt
rating of any Class A Bank Investor in such Related Group shall be "A-2" or
"P-2" from Standard & Poor's or ▇▇▇▇▇'▇, respectively, with negative credit
implications, such Class A 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 ▇▇▇▇▇'▇, respectively, and which shall not be so rated with negative credit
implications). If the short term debt rating of a Class A Bank Investor in a
Related Group shall be "A-3" or "P-3", or lower, from Standard & Poor's or
▇▇▇▇▇'▇, respectively (or such rating shall have been withdrawn by Standard &
Poor's or ▇▇▇▇▇'▇), such Class A 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 ▇▇▇▇▇'▇, respectively, and which shall not be so
rated with negative credit implications). In either such case, if any such Class
A 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 Class A
Bank Investor to accept the assignment of such Class A 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 Class A 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 Class A Bank Investor, as
reasonably determined by the applicable Administrative Agent. Notwithstanding
anything contained herein to the contrary, upon any such assignment to a
downgraded Class A 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
Class A 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 Class A Bank Investor's Commitment to the Transferor or such
downgraded Class A Bank Investor's other obligations and liabilities hereunder
and under the other Transaction Documents.
SECTION 9.8. APPOINTMENT OF ADMINISTRATIVE AGENTS. (a) Each Investor
in a Related Group hereby appoints and authorizes the Administrative Agent for
its Related Group to take such action as agent on its behalf and to exercise
such powers under this Agreement and the other Transaction Documents as are
delegated to such Administrative Agent by the terms hereof and thereof, together
with such powers as are reasonably incidental thereto. In furtherance, and
without limiting the generality, of the foregoing, each Investor in a Related
Group hereby appoints the Administrative Agent for its Related Group as its
agent to execute and deliver all further instruments and documents, and take all
further action that such Administrative Agent may deem necessary or appropriate
or that any Investor may reasonably
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request to enable any of them to exercise or enforce any of their respective
rights hereunder. Class A Bank Investors or Class B Investors, as applicable,
representing at least 66 and 2/3% of the aggregate Commitments of all Class A
Bank Investors or Class B Investors, as applicable, 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 Class A Bank Investor or Class B Investors, as
applicable, in such Related Group, agree to (i) amend, modify or waive any
provision of this Agreement in any way which would (A) reduce or impair
Collections or the payment of Discount or fees payable hereunder to the Class A
Bank Investors or Class B Investors, as applicable, 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, FMC 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 Class A Bank Investor or Class B Investors, as applicable, in
such Related Group. The Administrative Agent for a Related Group shall not agree
to any amendment of this Agreement which increases the dollar amount of the
Commitment of a Class A Bank Investor or Class B Investor in such Related Group
without the prior consent of such Class A Bank Investor or Class B 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.
93
(b) Each Administrative Agent shall exercise such rights and
powers vested in it by this Agreement and the other Transaction Documents, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
SECTION 9.9. ADMINISTRATIVE AGENT'S RELIANCE, ETC. Neither any
Administrative Agent nor any directors, officers, agents or employees of an
Administrative Agent shall be liable for any action taken or omitted to be taken
by it or them as Administrative Agent under or in connection with this Agreement
or any of the other Transaction Documents, except for its or their own gross
negligence or willful misconduct. Without limiting the foregoing, each
Administrative Agent: (i) may consult with legal counsel (including counsel for
any Parent Group Member), 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 Class
A Bank Investors or Class B Investors, as applicable, in each Related Group
agree to indemnify the Administrative Agent for such Related Group (to the
extent not reimbursed by the Transferor), ratably in accordance with their Pro
Rata Shares, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against such Administrative Agent in any way relating to or arising out
of this Agreement or any action taken or omitted by such Administrative Agent,
any of the other Transaction Documents hereunder or thereunder, provided that
the Class A Bank Investors or Class B Investors, as applicable, 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 Class
A Bank Investors or Class B Investors, as applicable, 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
94
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 Class A Bank Investors or Class B Investors, as
applicable, hereunder and/or thereunder and to the extent that such
Administrative Agent is not reimbursed for such expenses by the Transferor.
SECTION 9.11. SUCCESSOR ADMINISTRATIVE AGENTS. Any Administrative
Agent may resign at any time by giving written notice thereof to the Agent, each
Investor in its Related Group and the Transferor and may be removed at any time
with cause by the applicable Group Majority Investors. Upon any such resignation
or removal, the Group Majority Investors for such Related Group shall appoint a
successor Administrative Agent. Each Investor agrees that it shall not
unreasonably withhold or delay its approval of the appointment of a successor
Administrative Agent. If no such successor Administrative Agent shall have been
so appointed for such Related Group, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent's giving of notice of
resignation or the Group Majority Investors' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Investors in such Related Group, appoint a successor Administrative Agent
for such Related Group which successor Administrative Agent shall be either (i)
a commercial bank having a combined capital and surplus of at least $50,000,000
or (ii) an Affiliate of such a bank. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations under this Agreement. After any retiring Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of this
Article IX shall continue to inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this
Agreement.
SECTION 9.12. PAYMENTS BY THE ADMINISTRATIVE AGENTS. Unless
specifically allocated to an Investor pursuant to the terms of this Agreement,
all amounts received by an Administrative Agent on behalf of the Investors in
its Related Group shall be paid by such Administrative Agent to the Investors in
its Related Group (at their respective accounts specified in their respective
Assignment and Assumption Agreements) in accordance with their respective
related pro rata interests in the Net Investment on the Business Day received by
such Administrative Agent, unless such amounts are received after 12:00 noon on
such Business Day, in which case such Administrative Agent shall use its
reasonable efforts to pay such amounts to the Investors in its Related Group on
such Business Day, but, in any event, shall pay such amounts to such Investors
in accordance with their respective related pro rata interests in the Net
Investment not later than the following Business Day.
95
ARTICLE X
MISCELLANEOUS
SECTION 10.1. TERM OF AGREEMENT. This Agreement shall terminate on the
date following the Termination Date upon which the Net Investment has been
reduced to zero, all accrued Discount and Servicing Fees have been paid in full
and all other Aggregate Unpaids have been paid in full, in each case, in cash;
PROVIDED, HOWEVER, that (i) the rights and remedies of the Agent, the Investors
and the Administrative Agents with respect to any representation and warranty
made or deemed to be made by the Transferor pursuant to this Agreement, (ii) the
indemnification and payment provisions of Article VIII, and (iii) the agreement
set forth in Section 10.9 hereof, shall be continuing and shall survive any
termination of this Agreement.
SECTION 10.2. WAIVERS; AMENDMENTS. No failure or delay on the part of
the Agent, any Investor or any Administrative Agent in exercising any power,
right or remedy under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power, right or remedy preclude
any other further exercise thereof or the exercise of any other power, right or
remedy. The rights and remedies herein provided shall be cumulative and
nonexclusive of any rights or remedies provided by law. Any provision of this
Agreement may be amended or waived if, but only if, in the case of any
amendment, such amendment is in writing and is signed by the Transferor, the
Agent, each Administrative Agent and the Majority Investors and in the case of
any waiver, such waiver is granted in writing by each Administrative Agent.
Without limiting the generality of the foregoing, it is understood for the
avoidance of doubt that an Administrative Agent may condition its consent to any
amendment or waiver on its receipt of written confirmation from S&P and ▇▇▇▇▇'▇
that such amendment or waiver will not result in the reduction or withdrawal of
the then current rating of the Commercial Paper issued by its related Conduit
Investor.
SECTION 10.3. NOTICES. Except as provided below, all communications
and notices provided for hereunder shall be in writing (including telecopy or
electronic facsimile transmission or similar writing) and shall be given to the
other party at its address or telecopy number set forth below or at such other
address or telecopy number as such party may hereafter specify for the purposes
of notice to such party. Each such notice or other communication shall be
effective (i) if given by telecopy when such telecopy is transmitted to the
telecopy number specified in this Section 10.3 and confirmation is received,
(ii) if given by mail 3 Business Days following such posting, postage prepaid,
U.S. certified or registered, (iii) if given by overnight courier, one (1)
Business Day after deposit thereof with a national overnight courier service, or
(iv) if given by any other means, when received at the address specified in this
Section 10.3. However, anything in this Section to the contrary notwithstanding,
the Transferor hereby authorizes each Investor, each Administrative Agent and
the Agent to effect Transfers, Tranche Period and Tranche Rate selections based
on telephonic notices made by any Person which such Investor, such
Administrative Agent or the Agent, as applicable, in good faith believes to be
acting on behalf of the Transferor. The Transferor agrees to deliver promptly to
each such Investor or Administrative Agent or the Agent, as applicable, a
written confirmation of each
96
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 Enterprise:
Enterprise Funding Corporation
c/o Global Securitization Services
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(with a copy to its Administrative Agent)
If to the Transferor:
(NMC Funding Corporation)
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ or 9309
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Payment Information:
Chase Manhattan Bank, N.A.
ABA ▇▇▇-▇▇▇-▇▇▇
Account ▇▇▇-▇-▇▇▇▇▇
If to the Collection Agent:
National Medical Care, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ or 9309
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
If to the Collateral Agent related to Enterprise:
Bank of America, N.A.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
97
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇--
Structured Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Agent:
Bank of America, N.A.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - 16th Floor
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇--
Structured Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Payment Information:
Bank of America, N.A.
ABA ▇▇▇-▇▇▇-▇▇▇
for the account of Bank of America Charlotte
Account No. 1093601650000
Attn.: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
If to the Administrative Agent for Enterprise or the Class B
Investors or the related Collateral Agent:
Bank of America, N.A.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - 16th Floor
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇--
Structured Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to Compass:
▇/▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Administrative Agent for Compass:
▇/▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ Branch
1211 Avenue of the Americas
▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Payment Information:
Chase Manhattan Bank NY
ABA ▇▇▇▇▇▇▇▇▇
A/C WestLB NY
A/C #9201060663
If to GMFC:
Giro Multi-Funding Corporation
c/o Global Securitization Services
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Tel: 212/▇▇▇-▇▇▇▇
Telecopy: 212/302-8767
If to BLB:
Bayerische Landesbank, New York Branch
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Asset Securitization Division
Tel: 212/▇▇▇-▇▇▇▇
Telecopy: 212/230-9020
If to the Class A Bank Investors or the Class B Investors, at their
respective addresses set forth on Schedule I or in the Assignment and Assumption
Agreement pursuant to which it became a party hereto.
SECTION 10.4. GOVERNING LAW; SUBMISSION TO JURISDICTION; INTEGRATION.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE TRANSFEROR HEREBY SUBMITS
TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN THE
CITY OF NEW YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. Each of the
Transferor and the Collection Agent hereby irrevocably waives, to the fullest
extent it may effectively do so, any objection which it may now or hereafter
have to the
99
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 ▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇., of Arent Fox ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇, located at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as the authorized agent upon whom process may be served in any
action arising out of or based upon this Agreement, the other Transaction
Documents to which such Person is a party or the transactions contemplated
hereby or thereby that may be instituted in the United States District Court for
the Southern District of New York and of any New York State Court sitting in the
City of New York by any Administrative Agent, the Agent, any Investor, any
Collateral Agent or any assignee of any of them.
SECTION 10.5. SEVERABILITY; COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
Agreement. Any provisions of this Agreement which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 10.6. SUCCESSORS AND ASSIGNS. (a) This Agreement shall be
binding on the parties hereto and their respective successors and assigns;
PROVIDED, HOWEVER, that neither the Transferor nor the Collection Agent may
assign any of its rights or delegate any of its duties hereunder or under any of
the other Transaction Documents to which it is a party without the prior written
consent of each Administrative Agent. No provision of this Agreement shall in
any manner restrict the ability of any Conduit Investor, any Class A Bank
Investor or any Class B Investor to assign, participate, grant security
interests in, or otherwise transfer any portion of the Transferred Interest.
100
(b) Each of the Transferor and the Collection Agent hereby
agrees and consents to the assignment by any Conduit Investor from time to time
of all or any part of its rights under, interest in and title to this Agreement
and the Transferred Interest to any Liquidity Provider for such Conduit
Investor. In addition, each of the Transferor and the Collection Agent hereby
consents to and acknowledges the assignment by any Conduit Investor of all of
its rights under, interest in and title to this Agreement and the Transferred
Interest to the related Collateral Agent.
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 Class A 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 Class
A Bank Investor or potential Class A Bank Investor, any Liquidity Provider or
any Credit Support Provider in relation to this Agreement.
SECTION 10.8. CONFIDENTIALITY AGREEMENT. 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 Class A Bank Investor to any other Person except (i)
its auditors and attorneys, employees or financial advisors (other than any
commercial bank) and any nationally recognized rating agency PROVIDED such
auditors, attorneys, employees financial advisors or rating agencies are
informed of the highly confidential nature of such information or (ii) following
notice thereof to each Administrative Agent, as otherwise required by applicable
law (including the federal securities laws) or order of a court of competent
jurisdiction.
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 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 Commercial Paper when due; and (ii) after giving effect to
such payment, either (x) there is sufficient liquidity available (determined in
accordance with such program documents) to pay the Face Amount of all its
Commercial Paper, (y) the Conduit Investor is not rendered insolvent or (z) its
Commercial
101
Paper has been repaid in full. Any amount which the Conduit Investor does not
pay pursuant to the operation of the preceding sentence shall not constitute a
claim (as defined in Section 101 of the United States Bankruptcy Code) against
or a corporate obligation of the Conduit Investor for any insufficiency. The
provisions of this Section shall survive the termination of this Agreement.
SECTION 10.10. NO RECOURSE AGAINST STOCKHOLDERS, OFFICERS OR
DIRECTORS. No recourse under any obligation, covenant or agreement of any
Conduit Investor contained in this Agreement shall be had against Global
Securitization Services, LLC (nor any affiliate thereof), AMACAR Group L.L.C.
(nor any affiliate thereof), or any stockholder, officer or director of such
Conduit Investor, as such, by the enforcement of any assessment or by any legal
or equitable proceeding, by virtue of any statute or otherwise; it being
expressly agreed and understood that this Agreement is solely a corporate
obligation of such Conduit Investor, and that no personal liability whatsoever
shall attach to or be incurred by Global Securitization Services, LLC (or any
affiliate thereof), AMACAR Group L.L.C. (or any affiliate thereof), or the
stockholders, officers, or directors of such Conduit Investor, as such, or any
of them, under or by reason of any of the obligations, covenants or agreements
of such Conduit Investor contained in this Agreement, or implied therefrom, and
that any and all personal liability for breaches by a Conduit Investor of any of
such obligations, covenants or agreements, either at common law or at equity, or
by statute or constitution, of Global Securitization Services , LLC (or any
affiliate thereof), AMACAR Group L.L.C. (or any affiliate thereof) and every
such stockholder, officer or director of such Conduit Investor is hereby
expressly waived as a condition of and consideration for the execution of this
Agreement.
SECTION 10.11. CHARACTERIZATION OF THE TRANSACTIONS CONTEMPLATED BY
THE AGREEMENT. It is the intention of the parties that the transactions
contemplated hereby constitute the sale of the Transferred Interest, conveying
good title thereto free and clear of any Adverse Claims to the Agent, on behalf
of the Investors, and that the Transferred Interest not be part of the
Transferor's estate in the event of an insolvency. If, notwithstanding the
foregoing, the transactions contemplated hereby should be deemed a financing,
the parties intend that the Transferor shall be deemed to have granted to the
Agent, on behalf of the Investors, and the Transferor hereby grants to the
Agent, on behalf of the Investors, a first priority perfected and continuing
security interest in all of the Transferor's right, title and interest in, to
and under the Receivables, together with Related Security, Collections and
Proceeds with respect thereto, and together with all of the Transferor's rights
under the Receivables Purchase Agreement, the Transferring Affiliate Letter, the
BMA Transfer Agreement and all other Transaction Documents with respect to the
Receivables and with respect to any obligations thereunder of any Originating
Entity with respect to the Receivables, and that this Agreement shall constitute
a security agreement under applicable law. The Transferor hereby assigns to the
Agent, on behalf of the Investors, all of its rights and remedies under the
Receivables Purchase Agreement, the Transferring Affiliate Letter and the BMA
Transfer Agreement (and all instruments, documents and agreements executed in
connection therewith) with respect to the Receivables and with respect to any
obligations thereunder of any Originating Entity with respect to the
Receivables.
102
SECTION 10.12. SUBORDINATION OF CLASS B INVESTORS. (a) The members of
the Class B Related Group (the "Class B Parties") agree for the benefit of the
members of the Class A Related Groups (the "Class A Parties") that the rights of
the Class B Parties to payments of any kind hereunder and in and to the Affected
Assets shall be subordinate and junior to the rights of the Class A Parties to
the extent and in the manner set forth in this Agreement.
(b) On and after the Termination Date, the Class A Aggregate
Unpaids shall be paid in full in cash before any payment or distribution is made
on account of the Aggregate Unpaids owing to the Class B Parties. If at any time
on or after the Termination Date but prior to the payment in full of the Class A
Aggregate Unpaids, any Class B Party shall receive any payment or distribution
(whether in cash, property or securities) in respect of the Aggregate Unpaids
owing to the Class B Parties, then, unless and until the Class A Aggregate
Unpaids shall have been paid in full in cash in accordance with this Agreement,
such payment or distribution (whether in cash, property or securities) shall be
received and held in trust for the benefit of, and shall forthwith be paid over
and delivered to, the Agent, which shall distribute the same to be applied
against the Class A Aggregate Unpaids in accordance with the provisions of this
Agreement (including, as applicable, Section 9.6).
(c) If any Termination Event or Potential Termination Event
under this Agreement is then in existence or would result therefrom (unless
waived by the holders of Class A Aggregate Unpaids), the Transferor may not,
directly or indirectly, make any payment of interest in respect of the Aggregate
Unpaids owing to the Class B Parties until such Termination Event or Potential
Termination Event is cured or waived or all Class A Aggregate Unpaids have been
indefeasibly paid in full in cash. Each Class B Party hereby agrees that, so
long as any Class A Aggregate Unpaids remain outstanding, it will not accelerate
the maturity of, ▇▇▇ for, or otherwise take any action to enforce the
Transferor's obligations to pay, amounts owing in respect of this Agreement
other than any action reasonably necessary to preserve the Class B Parties'
rights in any bankruptcy or other liquidation proceeding of the Transferor
initiated by a Person other than the Class B Party. Each Class B Party
understands and agrees that to the extent that Section 10.12(b) or this Section
10.12(c) prohibits or reduces the payment which would otherwise be payable under
this Agreement, such Class B Party may not ▇▇▇ for, or otherwise take action to
enforce the Transferor's obligations to pay such amount, provided that
notwithstanding the other provisions of this sentence, such unpaid payment shall
remain an obligation of the Transferor to the Class B Parties pursuant to the
terms of this Agreement.
(d) Upon any distribution of assets of the Transferor upon
dissolution, winding up, liquidation or reorganization of the Transferor
(whether in bankruptcy, insolvency or receivership proceeding or upon an
assignment for the benefit of creditors or otherwise):
(i) the Class A Parties shall first be entitled to receive
payments in full of all Class A Aggregate Unpaids before the Class B Parties are
entitled to receive any payment of any kind of character on account of the
Aggregate Unpaids owing to the Class B Parities;
103
(ii) any payment or distribution of assets of the Transferor
of any kind of character, whether in cash, property or securities to which the
Class B Parties would be entitled except for the provisions of this Section
10.12, shall be paid by the liquidating trustee or agent or other Person making
such payment or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or other trustee or agent, directly to the holders of Class
A Aggregate Unpaids or their representative or representatives to the extent
necessary to make payment in full in cash of all Class A Aggregate Unpaids
remaining unpaid, after giving effect to any concurrent payment or distribution
to the holders of such Class A Aggregate Unpaids; and
(iii) in the event that, notwithstanding the foregoing
provisions of this Section 10.12(d), any payment or distribution of assets of
the Transferor of any kind or character, whether in cash, property or
securities, shall be received by the Class B Parties on account of Aggregate
Unpaids owing to the Class B Parties before all Class A Aggregate Unpaids are
paid in full in cash, such payment or distribution shall be received and held in
trust for and shall be paid over to the holders of the Class A Aggregate Unpaids
or their representative or representatives for application to the payment of
such Class A Aggregate Unpaids until all such Class A Aggregate Unpaids shall
have been paid in full in cash, after giving effect to any concurrent payment or
distribution to the holders of such Class A Aggregate Unpaids.
(e) The Transferor shall give written notice to the Class B
Parties of any dissolution, winding up, liquidation or reorganization of the
Transferor (whether in bankruptcy, insolvency or receivership proceeding or upon
assignment for the benefit of creditors or otherwise); provided that failure to
give such notice (promptly or otherwise) shall in no way modify the provisions
of this Section 10.12 or affect the subordination effected hereby.
(f) The Class B Parties agree, for the benefit of the Class A
Parties, not to institute against, or join any other Person in instituting
against, the Transferor any bankruptcy, reorganization, insolvency, liquidation
or similar proceeding until one year and one day after the Class A Aggregate
Unpaids have been paid in full.
(g) The Class B Parties agree with all Class A Parties that the
Class B Parties shall not demand, accept, or receive any payment or distribution
in respect of the Aggregate Unpaids in violation of the provisions of this
Agreement including, without limitation, this Section 10.12; PROVIDED that after
the Class A Aggregate Unpaids have been paid in full, the Class B Parties shall
be fully subrogated to the rights of the Class A Parties.
(h) The provisions of this SECTION 10.12 shall constitute a
continuing offer to all Person who, in reliance upon such provisions, become
holders of, or continue to hold, Class A Aggregate Unpaids, and such provisions
are made for the benefit of the holders of Class A Aggregate Unpaids, and such
holders are hereby made obligees hereunder the same as if their names were
written herein as such, and they and/or each of them may proceed to enforce such
provisions. The terms of this Section 10.12 may not be amended or modified
without the written consent of the Class A Parties.
104
(i) In exercising any of its voting rights, rights to direct and
consent or any other rights as an Investor under this Agreement, subject to the
terms and conditions of this Agreement, no Investor shall have any obligation or
duty to any Person or to consider or take into account the interests of any
Person and shall not be liable to any Person for any action taken by it or them
or at its or their direction or any failure by it or them to act or to direct
that an action be taken, without regard to whether such action or inaction
benefits or adversely affects any other Investor or any other Person, except for
any liability to which such Investor may be subject to the extent the same
results from such Investor's taking or directing an action, or failing to take
or direct an action, in bad faith or in violation of the express terms of this
Agreement.
(j) Subject to the prior payment in full in cash of all Class A
Aggregate Unpaids, the Class B Parties shall be subrogated to the rights of the
holders of Class A Aggregate Unpaids to receive payments or distributions of
assets of the Transferor applicable to the Class A Aggregate Unpaids until all
amounts owing to the Class B Parties shall be paid in full, and for the purpose
of such subrogation no payments or distribution to the holders of the Class A
Aggregate Unpaids by or on behalf of the Transferor or by or on behalf of the
Class B Parties by virtue of this Section 10.12 which otherwise would have been
made to the Class B Parties shall, as between the Transferor, its creditors
other than the holders of Class A Aggregate Unpaids, and the Class B Parties, be
deemed to be payment by the Transferor to or on account of the Class A Aggregate
Unpaids, it being understood that the provisions of this Section 10.12 are and
are intended solely for the purpose of defining the relative rights of the Class
B Parties, on the one hand, and the holders of the Class A Aggregate Unpaids, on
the other hand.
(k) No right of any present or future holders of any Class A
Aggregate Unpaids to enforce subordination as herein provided shall at any time
in any way be prejudiced or impaired by any act or failure to act on the part of
the Transferor or by any act or failure to act in good faith by any such holder,
or by any noncompliance by the Transferor with the terms and provisions of this
Agreement, regardless of any knowledge thereof which any such holder may have or
be otherwise charged with. The holders of the Class A Aggregate Unpaids may,
without in any way affecting the obligations of the Class B Parties with respect
hereto, at any time or from time to time and in their absolute discretion,
change the manner, place or terms of payment of, change or extend the time of
payment of, or renew or alter, any Class A Aggregate Unpaids or amend, modify or
supplement any agreement or instrument governing or evidencing such Class A
Aggregate Unpaids or any other document referred to therein, or exercise or
refrain from exercising any other of their rights under the Class A Aggregate
Unpaids including, without limitation, the waiver of default hereunder and the
release of any collateral securing such Class A Aggregate Unpaids all without
notice to or assent from the Class B Parties.
(l) Any money, property or securities realized from the
operation of the subordination provisions in this Section 10.12 shall be applied
first to obligations owing to the holders of the Class A Aggregate Unpaids until
all such obligations have been paid in full. In exercising rights and remedies
or taking other actions with respect to the subordination provisions in this
Section 10.12, the holders of the Class A Aggregate Unpaids, or any agent acting
on their behalf, may enforce such provisions and exercise remedies or take other
actions
105
hereunder, all in such order and in such manner as such holders or their agent
may determine in the exercise of reasonable business judgment.
(m) Each of the Class B Parties covenants and agrees not to
contest the enforceability of this Section 10.12 or the validity, priority,
perfection or enforceability of the Class A Aggregate Unpaids under this
Agreement, or any lien, security interest or guaranty granted in connection
therewith.
(n) The provisions of this Section 10.12 shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of
any of the Class A Aggregate Unpaids is rescinded or must otherwise be returned
or disgorged by the holders of the Class A Aggregate Unpaids for any reason
whatsoever (including, without limitation, in connection with any insolvency,
bankruptcy or reorganization involving the Transferor) all as though such
payment had not been made.
(o) In the event of any of the proceedings referred to in
Section 10.12(d) above, if the Class B Parties have not filed any claim, proof
of claim or other instrument of similar character necessary to enforce the
obligations of the Transferor in respect of this Agreement before the expiration
of the time to file the same, then and in such event, but only in such event,
the holders of the Class A Aggregate Unpaids or a representative on their behalf
may, as an attorney-in-fact for the Class B Parties, execute, verify, deliver
and file any claim, proof of claim or such other instrument of similar character
of behalf of the Class B Parties.
(p) Nothing in this Section 10.12 shall affect the obligation of
the Transferor to pay the Aggregate Unpaids owing to the Class B Investors.
[Remainder of page intentionally left blank]
106
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Transfer and Administration Agreement as of the date first written above.
ENTERPRISE FUNDING CORPORATION,
as a Conduit Investor
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
COMPASS US ACQUISITION, LLC,
as a Conduit Investor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
GIRO MULTI-FUNDING CORPORATION,
as a Conduit Investor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
NMC FUNDING CORPORATION,
as Transferor
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Treasurer
NATIONAL MEDICAL CARE, INC., as
Collection Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Treasurer
107
BANK OF AMERICA, N.A., as Agent, as an
Administrative Agent and as a Class A
Bank Investor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Principal
WESTLB AG, NEW YORK BRANCH, as an
Administrative Agent and as a Class A Bank
Investor
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director, Global Securitization
Americas
By: /s/ ▇▇▇ ▇▇▇
--------------------------------
Name: ▇▇▇ ▇▇▇
Title: Manager
BAYERISCHE LANDESBANK, NEW YORK BRANCH, as
an Administrative Agent and as a Class A
Bank Investor
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
LANDESBANK HESSEN-THUERINGEN GIROZENTRALE,
as a Class A Bank Investor
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, N.A., as a Class B Investor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Managing Director
109
SCHEDULE I
to
SECOND AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
NOTICE ADDRESSES FOR CLASS A BANK INVESTORS
AND CLASS B INVESTORS
BANK OF AMERICA, N.A.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - 16th Floor
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇--
Structured Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
WESTLB AG, NEW YORK BRANCH
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
BAYERISCHE LANDESBANK, NEW YORK BRANCH
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇-▇▇▇ ▇▇▇▇▇▇
Tel: 212/▇▇▇-▇▇▇▇
Telecopy: 212/230-9020
LANDESBANK HESSEN - THUERINGEN GIROZENTRALE
Neue ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇-▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: ▇▇▇▇▇-▇▇-▇▇▇▇-▇▇▇▇
Fax: ▇▇▇▇▇-▇▇-▇▇▇▇-▇▇▇▇
110
SCHEDULE II
to
SECOND AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
A. COMMITMENTS OF CLASS A BANK INVESTORS
Class A Bank Investor Commitment
--------------------- -----------
Bank of America, N.A. $195,000,000
WestLB AG, New York Branch $170,000,000
Bayerische Landesbank, New York Branch $120,000,000
Landesbank Hessen - Thueringen Girozentrale $ 75,000,000(1)
B. COMMITMENTS OF CLASS B INVESTORS
Class B Investor Commitment
---------------- -----------
Bank of America, N.A. $16,000,000
--------
(1) Landesbank Hessen - Thueringen Girozentrale is a member of both the Compass
and the Enterprise Related Groups. The portion of its Commitment included in the
Compass Related Group is $50,000,000. The portion of its Commitment included in
the Enterprise Related Group is $25,000,000.
111
EXHIBIT A
to
SECOND AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
FORMS OF CONTRACTS
112
EXHIBIT B
to
SECOND AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
CREDIT AND COLLECTION POLICIES AND PRACTICES
113
EXHIBIT C
to
SECOND AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
LIST OF SPECIAL ACCOUNT BANKS, DESIGNATED
ACCOUNT AGENTS AND CONCENTRATION BANK
114
EXHIBIT D-1
to
SECOND AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
FORM OF SPECIAL ACCOUNT LETTER
115
EXHIBIT D-2
to
SECOND AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
FORM OF CONCENTRATION ACCOUNT AGREEMENT
116
EXHIBIT E
to
SECOND AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
FORM OF INVESTOR REPORT
117
EXHIBIT F
to
SECOND AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
FORM OF TRANSFER CERTIFICATE
118
EXHIBIT G
to
SECOND AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
119
EXHIBIT H
to
SECOND AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
LIST OF ACTIONS AND SUITS
SECTIONS 3.1(g), 3.1(k) and 3.3(e)
[TO BE UPDATED BY FRESENIUS]
120
EXHIBIT I
to
SECOND AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
LOCATION OF RECORDS
121
EXHIBIT J
to
SECOND AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
[RESERVED]
122
EXHIBIT K
to
SECOND AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
FORMS OF OPINIONS OF COUNSEL
123
EXHIBIT L
to
SECOND AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
FORMS OF SECRETARY'S CERTIFICATE
124
EXHIBIT M
to
SECOND AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
FORM OF CERTIFICATE
125
EXHIBIT N
to
SECOND AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
LIST OF APPROVED FISCAL INTERMEDIARIES
126
EXHIBIT O
to
SECOND AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
FORM OF TRANSFERRING AFFILIATE LETTER
127
EXHIBIT P
to
SECOND AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
FORM OF PARENT AGREEMENT
128
EXHIBIT Q
to
SECOND AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
LIST OF TRANSFERRING AFFILIATES
Chief Executive Office for each ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ Affiliate: ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
State of
Original Transferring Affiliates Incorporation FEIN
-------------------------------- ------------- ----
(Before December 21, 2001)
Bio-Medical Applications Management Company, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Aquadilla, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Alabama, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Anacostia, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Arecibo, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Arizona, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Arkansas, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Bayamon, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Caguas, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of California, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Camarillo, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Capitol Hill, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Carolina, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of ▇▇▇▇▇▇, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Columbia Heights, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Connecticut, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Delaware, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of East Orange, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Eureka, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Florida, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Fremont, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Fresno,lnc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Georgia, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Glendora, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Guayama, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Hillside, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
129
Bio-Medical Applications of Humacao, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Illinois, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Indiana, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Irvington, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Jersey City, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Kansas, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Kentucky, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Las Americas, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Long Beach, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Los Gatos, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Louisiana, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Maine, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Maryland, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Massachusetts, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Mayaguez, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Michigan, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Minnesota, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Mission Hills, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Mississippi, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Missouri, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of MLK, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of New Hampshire, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of New Jersey, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of New Mexico, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of North Carolina, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Northeast, D.C., Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Oakland, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Ohio, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Oklahoma, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Pennsylvania, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Pine Brook, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Ponce, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Puerto Rico, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Rhode Island, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Rio Piedras, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of San German, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of San ▇▇▇▇, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of South Carolina, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Southeast Washington, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Tennessee, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Texas, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of The District of Columbia, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Trenton, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Ukiah, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
130
Bio-Medical Applications of Virginia, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of West Virginia, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Wisconsin, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Woonsocket, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
FMC Dialysis Services - Oregon, LLC (f/k/a
Willamette Valley Kidney Center, LLC) Oregon ▇▇-▇▇▇▇▇▇▇
FMC Dialysis Services Colorado, LLC (f/k/a
Bio-Medical Applications of Colorado, Inc.) Delaware ▇▇-▇▇▇▇▇▇▇
Fresenius USA, Inc. Massachusetts ▇▇-▇▇▇▇▇▇▇
Home Intensive Care, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
National Medical Care, Inc Delaware ▇▇-▇▇▇▇▇▇▇
Neomedica, Inc Delaware ▇▇-▇▇▇▇▇▇▇
San Diego Dialysis Services, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Spectra East, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Spectra Laboratories, Inc. Nevada ▇▇-▇▇▇▇▇▇▇
State of
New Transferring Affiliates Incorporation FEIN
--------------------------- ------------- ----
(added December 21, 2001)
Bio-Medical Applications Home Dialysis Services, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Blue Springs, Inc Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Clinton, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Dover, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Essex, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Fayetteville, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Hoboken, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Manchester, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of Nevada, Inc Nevada ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of New York, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of San Antonio, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Bio-Medical Applications of South Queens, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Con-Med Supply Company, Inc. Illinois ▇▇-▇▇▇▇▇▇▇
Conejo Valley Dialysis, Inc. California ▇▇-▇▇▇▇▇▇▇
Dialysis America Alabama, LLC Delaware ▇▇-▇▇▇▇▇▇▇
Dialysis America Georgia, LLC Delaware ▇▇-▇▇▇▇▇▇▇
Dialysis Associates of Northern New Jersey, LLC New Jersey ▇▇-▇▇▇▇▇▇▇
Dialysis Services, Inc. Texas ▇▇-▇▇▇▇▇▇▇
Dialysis Services of Cincinnati, Inc. Ohio ▇▇-▇▇▇▇▇▇▇
Dialysis Specialists of Topeka, Inc. Kansas ▇▇-▇▇▇▇▇▇▇
Dialysis Specialists of Tulsa, Inc. Oklahoma ▇▇-▇▇▇▇▇▇▇
DuPage Dialysis Ltd. Illinois ▇▇-▇▇▇▇▇▇▇
Everest Healthcare Holdings, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Everest Healthcare Indiana, Inc. Indiana ▇▇-▇▇▇▇▇▇▇
131
Everest Healthcare Ohio, Inc. Ohio ▇▇-▇▇▇▇▇▇▇
Everest Healthcare Rhode Island, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Everest Healthcare Texas Holding Corp Delaware ▇▇-▇▇▇▇▇▇▇
Everest Healthcare Texas, LP Delaware ▇▇-▇▇▇▇▇▇▇
Everest Management, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Fresenius Management Services, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Fresenius USA Home Dialysis, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Fresenius USA Marketing, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Fresenius USA of Puerto Rico, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Fresenius USA Sales, Inc. Massachusetts ▇▇-▇▇▇▇▇▇▇
Gulf Region Mobile Dialysis, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Haemo-Stat, Inc. California ▇▇-▇▇▇▇▇▇▇
Home Dialysis of America, Inc. Arizona ▇▇-▇▇▇▇▇▇▇
Home Dialysis of Muhlenberg County, Inc. Kentucky ▇▇-▇▇▇▇▇▇▇
Mercy Dialysis Center, Inc. Wisconsin ▇▇-▇▇▇▇▇▇▇
North ▇▇▇▇▇▇▇ Dialysis Center, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Northern New Jersey Dialysis, LLC Delaware ▇▇-▇▇▇▇▇▇▇
Prime Medical, Inc. Massachusetts ▇▇-▇▇▇▇▇▇▇
Qualicenters, Inc. Colorado ▇▇-▇▇▇▇▇▇▇
Renal Scientific Services, Inc. Delaware ▇▇-▇▇▇▇▇▇▇
Santa ▇▇▇▇▇▇▇ Community Dialysis Center, Inc. California ▇▇-▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Dialysis Center, LLC Delaware ▇▇-▇▇▇▇▇▇▇
WSKC Dialysis Services, Inc. Illinois ▇▇-▇▇▇▇▇▇▇
132
EXHIBIT R
to
SECOND AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
FORM OF ACCOUNT AGENT AGREEMENT
133
EXHIBIT S
to
SECOND AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
LIST OF CLOSING DOCUMENTS
134
EXHIBIT T
to
AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
FORM OF REAFFIRMATION OF PARENT AGREEMENT
135