exv10w2






 




    Exhibit 10.2



 




    CONFIDENTIAL
    TREATMENT REQUESTED.



 




    [*]
    indicates confidential portions omitted pursuant to a request
    for confidential treatment and filed separately with the
    Securities and Exchange Commission



 




    EXECUTION
    VERSION



 


 


 




    FOURTH
    AMENDED AND RESTATED



 


 




    TRANSFER
    AND ADMINISTRATION AGREEMENT



 




    among



 




    PARADIGM
    FUNDING LLC,



 




    GIRO
    BALANCED FUNDING CORPORATION,



 




    LIBERTY
    STREET FUNDING LLC,







    as
    Conduit Investors



 




    NMC
    FUNDING CORPORATION,







    as
    Transferor



 




    NATIONAL
    MEDICAL CARE, INC.,







    as
    Collection Agent



 




    THE
    FINANCIAL INSTITUTIONS PARTIES HERETO,







    as Bank
    Investors



 




    BAYERISCHE
    LANDESBANK, NEW YORK BRANCH,







    as an
    Administrative Agent



 


 




    THE BANK
    OF NOVA SCOTIA







    as an
    Administrative Agent



 




    and



 


 




    WESTLB
    AG, NEW YORK BRANCH,







    as an
    Administrative Agent and as Agent







    Dated as
    of October 16, 2008













 







    TABLE OF
    CONTENTS



 


	 	 	 	 	 	 	 	 	 
	

    ARTICLE I

    

    DEFINITIONS



	 
	

    Section 1.1.
    


	 
	
 
	
    Certain Defined Terms
	
 
	 
	
    1
	 

	 
	

    Section 1.2.
    


	 
	
 
	
    Other Terms
	
 
	 
	
    19
	 

	 
	

    Section 1.3.
    


	 
	
 
	
    Computation of Time Periods
	
 
	 
	
    19
	 

	 
	

    Section 1.4.
    


	 
	
 
	
    Amendment and Restatement
	
 
	 
	
    19
	 

	 
	

    Section 1.5.
    


	 
	
 
	
    Funding on Effective Date
	
 
	 
	
    19
	 

	
 

	

    ARTICLE II

    

    PURCHASE AND SETTLEMENTS



	 
	

    Section 2.1.
    


	 
	
 
	
    Facility
	
 
	 
	
    19
	 

	 
	

    Section 2.2.
    


	 
	
 
	
    Transfers; Certificates; Eligible
    Receivables(a) Incremental Transfers
	
 
	 
	
    19
	 

	 
	

    Section 2.3.
    


	 
	
 
	
    Selection of Tranche Periods and Tranche Rates
	
 
	 
	
    21
	 

	 
	

    Section 2.4.
    


	 
	
 
	
    Discount, Fees and Other Costs and Expenses
	
 
	 
	
    23
	 

	 
	

    Section 2.5.
    


	 
	
 
	
    Non-Liquidation Settlement and Reinvestment Procedures
	
 
	 
	
    23
	 

	 
	

    Section 2.6.
    


	 
	
 
	
    Liquidation Settlement Procedures
	
 
	 
	
    23
	 

	 
	

    Section 2.7.
    


	 
	
 
	
    Fees
	
 
	 
	
    24
	 

	 
	

    Section 2.8.
    


	 
	
 
	
    Protection of Ownership Interest of the Investors; Special
    Accounts and Concentration Account
	
 
	 
	
    24
	 

	 
	

    Section 2.9.
    


	 
	
 
	
    Deemed Collections; Application of Payments
	
 
	 
	
    25
	 

	 
	

    Section 2.10.
    


	 
	
 
	
    Payments and Computations, Etc
	
 
	 
	
    26
	 

	 
	

    Section 2.11.
    


	 
	
 
	
    Reports
	
 
	 
	
    26
	 

	 
	

    Section 2.12.
    


	 
	
 
	
    Collection Account
	
 
	 
	
    26
	 

	 
	

    Section 2.13.
    


	 
	
 
	
    Sharing of Payments, Etc
	
 
	 
	
    27
	 

	 
	

    Section 2.14.
    


	 
	
 
	
    Right of Setoff
	
 
	 
	
    27
	 

	 
	

    Section 2.15.
    


	 
	
 
	
    Additional Transferring Affiliates
	
 
	 
	
    27
	 

	
 

	

    ARTICLE III

    

    REPRESENTATIONS AND WARRANTIES



	 
	

    Section 3.1.
    


	 
	
 
	
    Representations and Warranties of the Transferor
	
 
	 
	
    28
	 

	 
	

    Section 3.2.
    


	 
	
 
	
    Reaffirmation of Representations and Warranties by the Transferor
	
 
	 
	
    31
	 

	 
	

    Section 3.3.
    


	 
	
 
	
    Representations and Warranties of the Collection Agent
	
 
	 
	
    31
	 

	
 

	

    ARTICLE IV

    

    CONDITIONS PRECEDENT



	 
	

    Section 4.1.
    


	 
	
 
	
    Conditions to Closing
	
 
	 
	
    32
	 

	
 

	
    ARTICLE V

    

    COVENANTS

	 
	

    Section 5.1.
    


	 
	
 
	
    Affirmative Covenants of Transferor
	
 
	 
	
    34
	 

	 
	

    Section 5.2.
    


	 
	
 
	
    Negative Covenants of the Transferor
	
 
	 
	
    37
	 

	 
	

    Section 5.3.
    


	 
	
 
	
    Affirmative Covenants of the Collection Agent
	
 
	 
	
    40
	 

	 
	

    Section 5.4.
    


	 
	
 
	
    Negative Covenants of the Collection Agent
	
 
	 
	
    41
	 

	
 

	
    ARTICLE VI

    

    ADMINISTRATION AND COLLECTION

	 
	

    Section 6.1.
    


	 
	
 
	
    Appointment of Collection Agent
	
 
	 
	
    41
	 

	 
	

    Section 6.2.
    


	 
	
 
	
    Duties of Collection Agent
	
 
	 
	
    42
	 

	 
	

    Section 6.3.
    


	 
	
 
	
    Right After Designation of New Collection Agent
	
 
	 
	
    43
	 

	 
	

    Section 6.4.
    


	 
	
 
	
    Collection Agent Default
	
 
	 
	
    43
	 

	 
	

    Section 6.5.
    


	 
	
 
	
    Responsibilities of the Transferor
	
 
	 
	
    44
	 





    

    i








 





	 	 	 	 	 	 	 	 	 
	
    ARTICLE VII

    

    TERMINATION EVENTS

	 
	

    Section 7.1.
    


	 
	
 
	
    Termination Events
	
 
	 
	
    44
	 

	 
	

    Section 7.2.
    


	 
	
 
	
    Termination
	
 
	 
	
    46
	 

	
 

	
    ARTICLE VIII

    

    INDEMNIFICATION; EXPENSES; RELATED MATTERS

	 
	

    Section 8.1.
    


	 
	
 
	
    Indemnities by the Transferor
	
 
	 
	
    46
	 

	 
	

    Section 8.2.
    


	 
	
 
	
    Indemnity for Taxes, Reserves and Expenses
	
 
	 
	
    48
	 

	 
	

    Section 8.3.
    


	 
	
 
	
    Taxes
	
 
	 
	
    50
	 

	 
	

    Section 8.4.
    


	 
	
 
	
    Other Costs, Expenses and Related Matters
	
 
	 
	
    51
	 

	 
	

    Section 8.5.
    


	 
	
 
	
    Reconveyance Under Certain Circumstances
	
 
	 
	
    51
	 

	
 

	

    ARTICLE IX

    

    THE AGENT; BANK COMMITMENT; THE ADMINISTRATIVE AGENTS



	 
	

    Section 9.1.
    


	 
	
 
	
    Authorization and Action
	
 
	 
	
    52
	 

	 
	

    Section 9.2.
    


	 
	
 
	
    Agent’s Reliance, Etc
	
 
	 
	
    52
	 

	 
	

    Section 9.3.
    


	 
	
 
	
    Credit Decision
	
 
	 
	
    53
	 

	 
	

    Section 9.4.
    


	 
	
 
	
    Indemnification of the Agent
	
 
	 
	
    53
	 

	 
	

    Section 9.5.
    


	 
	
 
	
    Successor Agent
	
 
	 
	
    53
	 

	 
	

    Section 9.6.
    


	 
	
 
	
    Payments by the Agent
	
 
	 
	
    53
	 

	 
	

    Section 9.7.
    


	 
	
 
	
    Bank Commitment; Assignment to Bank Investors
	
 
	 
	
    53
	 

	 
	

    Section 9.8.
    


	 
	
 
	
    Appointment of Administrative Agents
	
 
	 
	
    56
	 

	 
	

    Section 9.9.
    


	 
	
 
	
    Administrative Agent’s Reliance, Etc
	
 
	 
	
    56
	 

	 
	

    Section 9.10.
    


	 
	
 
	
    Indemnification of the Administrative Agents
	
 
	 
	
    57
	 

	 
	

    Section 9.11.
    


	 
	
 
	
    Successor Administrative Agents
	
 
	 
	
    57
	 

	 
	

    Section 9.12.
    


	 
	
 
	
    Payments by the Administrative Agents
	
 
	 
	
    57
	 

	
 

	

    ARTICLE X

    

    MISCELLANEOUS



	 
	

    Section 10.1.
    


	 
	
 
	
    Term of Agreement
	
 
	 
	
    58
	 

	 
	

    Section 10.2.
    


	 
	
 
	
    Waivers; Amendments
	
 
	 
	
    58
	 

	 
	

    Section 10.3.
    


	 
	
 
	
    Notices
	
 
	 
	
    58
	 

	 
	

    Section 10.4.
    


	 
	
 
	
    Governing Law; Submission to Jurisdiction; Integration
	
 
	 
	
    60
	 

	 
	

    Section 10.5.
    


	 
	
 
	
    Severability; Counterparts
	
 
	 
	
    60
	 

	 
	

    Section 10.6.
    


	 
	
 
	
    Successors and Assigns
	
 
	 
	
    60
	 

	 
	

    Section 10.7.
    


	 
	
 
	
    Waiver of Confidentiality
	
 
	 
	
    61
	 

	 
	

    Section 10.8.
    


	 
	
 
	
    Confidentiality Agreement
	
 
	 
	
    61
	 

	 
	

    Section 10.9.
    


	 
	
 
	
    No Bankruptcy Petition Against Conduit Investors
	
 
	 
	
    61
	 

	 
	

    Section 10.10.
    


	 
	
 
	
    No Recourse Against Stockholders, Officers or Directors
	
 
	 
	
    62
	 

	 
	

    Section 10.11.
    


	 
	
 
	
    Characterization of the Transactions Contemplated by the
    Agreement
	
 
	 
	
    62
	 










    

    ii








 







    SCHEDULES
    



 


	 	 	 	 	 	 	 
	

    SCHEDULE I


	
 
	
    Notice Addresses of Bank Investors
	
 
	 
	
    66
	 

	

    SCHEDULE II


	
 
	
    Commitments of Bank Investors
	
 
	 
	
    67
	 

	
 

	

    EXHIBITS



	

    EXHIBIT A


	
 
	
    Forms of Contracts
	
 
	 
	
    A-1
	 

	

    EXHIBIT B


	
 
	
    Credit and Collection Policies and Practices
	
 
	 
	
    B-1
	 

	

    EXHIBIT C


	
 
	
    List of Special Account Banks, Designated Account Agents and
    Concentration Bank
	
 
	 
	
    C-1
	 

	

    EXHIBIT D-1


	
 
	
    Form of Special Account Letter
	
 
	 
	
    D-1
	 

	

    EXHIBIT D-2


	
 
	
    Form of Concentration Account Agreement
	
 
	 
	
    D-2
	 

	

    EXHIBIT E


	
 
	
    Form of Investor Report
	
 
	 
	
    E-1
	 

	

    EXHIBIT F


	
 
	
    Form of Transfer Certificate
	
 
	 
	
    F-1
	 

	

    EXHIBIT G


	
 
	
    Form of Assignment and Assumption Agreement
	
 
	 
	
    G-1
	 

	

    EXHIBIT H


	
 
	
    List of Actions and Suits (Sections 3.1(g), 3.1(k) and
    3.3(e))
	
 
	 
	
    H-1
	 

	

    EXHIBIT I


	
 
	
    Location of Records
	
 
	 
	
    I-1
	 

	

    EXHIBIT J


	
 
	
    Form of Business Associate Agreement
	
 
	 
	
    J-1
	 

	

    EXHIBIT K


	
 
	
    Forms of Opinions of Counsel
	
 
	 
	
    K-1
	 

	

    EXHIBIT L


	
 
	
    Forms of Secretary’s Certificate
	
 
	 
	
    L-1
	 

	

    EXHIBIT M


	
 
	
    Form of Certificate
	
 
	 
	
    M-1
	 

	

    EXHIBIT N


	
 
	
    List of Approved Fiscal Intermediaries
	
 
	 
	
    N-1
	 

	

    EXHIBIT O


	
 
	
    Form of Transferring Affiliate Letter
	
 
	 
	
    O-1
	 

	

    EXHIBIT P


	
 
	
    Form of Parent Agreement
	
 
	 
	
    P-1
	 

	

    EXHIBIT Q


	
 
	
    List of Transferring Affiliates
	
 
	 
	
    Q-1
	 

	

    EXHIBIT R


	
 
	
    Form of Account Agent Agreement
	
 
	 
	
    R-1
	 

	

    EXHIBIT S


	
 
	
    List of Closing Documents
	
 
	 
	
    S-1
	 

	

    EXHIBIT T


	
 
	
    Form of Agreed Upon Procedures Report
	
 
	 
	
    T-1
	 

	

    EXHIBIT U


	
 
	
    Form of “No Material Weakness” Report
	
 
	 
	
    U-1
	 










    

    iii








 







    FOURTH
    AMENDED AND RESTATED TRANSFER

    AND ADMINISTRATION AGREEMENT



 



    FOURTH AMENDED AND RESTATED TRANSFER AND ADMINISTRATION
    AGREEMENT (this “Agreement”), dated as of
    October 16, 2008, by and among NMC FUNDING CORPORATION, a
    Delaware corporation, as transferor (in such capacity, the
    “Transferor”), NATIONAL MEDICAL CARE, INC., a
    Delaware corporation, as the initial “Collection
    Agent”, PARADIGM FUNDING LLC, a Delaware limited liability
    company (“Paradigm”), as a Conduit Investor,
    GIRO BALANCED FUNDING CORPORATION, a Delaware Corporation
    (“GBFC”), as a Conduit Investor, LIBERTY STREET
    FUNDING LLC, a Delaware limited liability company
    (“Liberty Street”), as a Conduit Investor, the
    FINANCIAL INSTITUTIONS PARTIES HERETO, as Bank Investors,
    BAYERISCHE LANDESBANK, NEW YORK BRANCH
    (“BAYERNLB”), as an Administrative Agent, THE
    BANK OF NOVA SCOTIA (“Scotiabank”), as an
    Administrative Agent, WESTLB AG, NEW YORK BRANCH (formerly known
    as Westdeutsche Landesbank Girozentrale, New York Branch)
    (“WestLB”), as an Administrative Agent and as
    agent (in such capacity, the “Agent”) for the
    Investors.



 




    PRELIMINARY
    STATEMENTS



 



    WHEREAS, the Transferor, the Collection Agent, the Conduit
    Investors, the Bank Investors, the Administrative Agents, and
    the Agent (other than Scotiabank and Liberty Street) are parties
    to that certain Third Amended and Restated Transfer and
    Administration Agreement dated as of October 23, 2003 (as
    amended prior to the date hereof, the “Existing
    TAA”); and



 



    WHEREAS, the parties hereto desire to amend and restate the
    Existing TAA in its entirety.



 



    NOW, THEREFORE, the parties hereby agree as follows:



 




    ARTICLE I

    



 




    DEFINITIONS
    



 



    Section 1.1. Certain
    Defined Terms. As used in this Agreement, the following
    terms shall have the following meanings:



 



    “Account Agent Agreement” means an agreement in
    substantially the form of Exhibit R hereto.



 



    “Administrative Agent” means (i) WestLB
    AG, New York Branch, as administrative agent for the Related
    Group that includes Paradigm, (ii) Bayerische Landesbank,
    New York Branch, as administrative agent for the Related Group
    that includes GBFC or (iii) The Bank of Nova Scotia, as
    administrative agent for the Related Group that includes Liberty
    Street.



 



    “Administration Fee” means the fee payable by
    the Transferor to the Agent pursuant to Section 2.7(iii)
    hereof, the terms of which are set forth in the Agent Fee Letter.



 



    “Adverse Claim” means a lien, security
    interest, charge or encumbrance, or other right or claim in, of
    or on any Person’s assets or properties in favor of any
    other Person (including any UCC financing statement or any
    similar instrument filed against such Person’s assets or
    properties), other than customary rights of set-off and other
    similar claims.



 



    “Affected Assets” means, collectively, the
    Receivables and the Related Security, Collections and Proceeds
    relating thereto.



 



    “Affiliate” means, with respect to any Person,
    any other Person directly or indirectly controlling, controlled
    by, or under direct or indirect common control with, such
    Person. A Person shall be deemed to control another Person if
    the controlling Person possesses, directly or indirectly, the
    power to direct or cause the direction of the management or
    policies of the controlled Person, whether through ownership of
    voting stock, by contract or otherwise.



 



    “Agent” means WestLB, in its capacity as agent
    for the Investors, and any successor thereto appointed pursuant
    to Article IX.



 



    “Agent Fee Letter” means the Amended and
    Restated Agent Fee Letter dated as of the Closing Date between
    the Transferor and the Agent relating to certain fees payable by
    the Transferor to the Agent hereunder, as amended, restated,
    supplemented or otherwise modified from time to time.













 






    “Aggregate Unpaids” means, at any time, an
    amount equal to the sum of (i) the aggregate accrued and
    unpaid Discount with respect to all Tranche Periods at such
    time, (ii) the Net Investment at such time, and
    (iii) all other amounts owed (whether due or accrued)
    hereunder by the Transferor to the Investors at such time.



 



    “Agreement” shall have the meaning specified in
    the Preamble to this Agreement.



 



    “Amendment Agreement” means the amendment
    agreement dated as of the Closing Date among the parties to the
    Existing TAA.



 



    “Applicable Margin” means 2.00%



 



    “Assignment Amount” with respect to a Bank
    Investor shall mean at any time an amount equal to the lesser of
    (i) such Bank Investor’s Pro Rata Share of the Net
    Investment held by the Conduit Investor in the same Related
    Group at such time and (ii) such Bank Investor’s
    unused Commitment.



 



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



 



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



 



    “Bank Investors” means each financial
    institution identified as a “Bank Investor” on
    Schedule II and their respective successors and assigns.



 



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



 



    “Base Rate” or “BR” means,
    with respect to the Investors in any Related Group, a rate per
    annum equal to the greater of (i) the prime rate of
    interest announced by the Administrative Agent for such Related
    Group from time to time, changing when and as said prime rate
    changes (such rate not necessarily being the lowest or best rate
    charged by such Administrative Agent) and (ii) the sum of
    (a) 1.50% and (b) the rate equal to the weighted
    average of the rates on overnight Federal funds transactions
    with members of the Federal Reserve System arranged by Federal
    funds brokers, as published for such day (or, if such day is not
    a Business Day, for the next preceding Business Day) by the
    Federal Reserve Bank of New York, or, if such rate is not so
    published for any day that is a Business Day, the average of the
    quotations for such day for such transactions received by such
    Administrative Agent from three Federal funds brokers of
    recognized standing selected by it.



 



    “Bayerische Landesbank, Cayman Islands Branch”
    means Bayerische Landesbank, Cayman Islands Branch, together
    with its successors and permitted assigns.



 



    “BayernLB” means Bayerische Landesbank, New
    York Branch, together with its successors and permitted assigns.



 



    “Benefit Plan” means any employee benefit plan
    as defined in Section 3(3) of ERISA in respect of which the
    Transferor, the Seller or any ERISA Affiliate of the Transferor
    or the Seller is, or at any time during the immediately
    preceding six years was, an “employer” as defined in
    Section 3(5) of ERISA.



 



    “BMA” means Bio-Medical Applications Management
    Company, Inc., a Delaware corporation, and its successors and
    permitted assigns.



 



    “BMA Transfer Agreement” means that certain
    Receivables Purchase Agreement dated as of August 28, 1997
    by and between BMA, as seller, and NMC, as purchaser, as the
    same may be amended, restated, supplemented or otherwise
    modified from time to time.



 



    “Business Day” means any day excluding
    Saturday, Sunday and any day on which banks in New York, New
    York are authorized or required by law to close, and, when used
    with respect to the determination of any Eurodollar Rate or any
    notice with respect thereto, any such day which is also a day
    for trading by and between banks in United States dollar
    deposits in the London interbank market.



 



    “BR Tranche” means a Tranche as to which
    Discount is calculated at the Base Rate.



 



    “BR Tranche Period” means, with respect to
    a BR Tranche for the Investors in any Related Group, either
    (i) prior to the Termination Date, a period of up to
    30 days requested by the Transferor and agreed to by the
    Administrative Agent for such Related Group, commencing on a
    Business Day requested by the Transferor and agreed to by such
    Administrative Agent, or (ii) after the Termination Date, a
    period of one day. If such BR Tranche Period would end on a
    day which is not a Business Day, such BR Tranche Period
    shall end on the next succeeding Business Day.



 



    “Capitalized Lease” of a Person means any lease
    of property by such Person as lessee which would be capitalized
    on a balance sheet of such Person prepared in accordance with
    GAAP.




    

    2








 






    “Certificate” means the certificate issued to
    the Agent for the benefit of the Investors pursuant to
    Section 2.2(d) of the Existing TAA.



 



    “CHAMPUS/VA” means, collectively, (i) the
    Civilian Health and Medical Program of the Uniformed Service, a
    program of medical benefits covering retirees and dependents of
    a member or a former member of a uniformed service, provided,
    financed and supervised by the United States Department of
    Defense and established by 10 USC § 1071
    et seq. and (ii) the Civilian Health and
    Medical Program of Veterans Affairs, a program of medical
    benefits covering dependents of veterans, administered by the
    United States Veterans’ Administration and Department of
    Defense and established by 38 USC § 1713
    et seq.



 



    “CHAMPUS/VA Regulations” means collectively,
    all regulations of the Civilian Health and Medical Program of
    the Uniformed Services and the Civilian Health and Medical
    Program of Veterans Affairs, including (a) all federal
    statutes (whether set forth in 10 USC 1071, 38 USC
    1713 or elsewhere) affecting CHAMPUS/VA; and (b) all
    applicable provisions of all rules, regulations (including
    32 CFR 199 and 38 CFR 17.54), manuals, orders, and
    administrative, reimbursement and other guidelines of all
    Governmental Authorities (including, without limitation, HHS,
    the Department of Defense, the Veterans’ Administration,
    the Department of Transportation, the Assistant Secretary of
    Defense (Health Affairs), and the Office of CHAMPUS, or any
    Person or entity succeeding to the functions of any of the
    foregoing) promulgated pursuant to or in connection with any of
    the foregoing (whether or not having the force of law), in each
    case as may be amended, supplemented or otherwise modified from
    time to time.



 



    “Change of Control” means if the general
    partner of the FME KGaA charged with management of FME KGaA
    shall at any time fail to be a Subsidiary of Fresenius SE, or if
    Fresenius SE shall fail at any time to own and control more than
    twenty-five percent (25%) of the Voting Stock of FME KGaA.



 



    “Change of Control Percentage” means the
    greater of (a) thirty-five percent (35%) or (b) the
    percentage of Voting Stock in FME KGaA held and owned by
    Fresenius SE.



 



    “Closing Date” means October 16, 2008.



 



    “CMS” means the Centers for Medicare and
    Medicaid Services (formerly known as the Health Care Financing
    Administration), an agency of the HHS charged with administering
    and regulating, among other things, certain aspects of Medicaid
    and Medicare.



 



    “Code” means the Internal Revenue Code of 1986,
    as amended.



 



    “Collateral Agent” means with respect to the
    Related Group that includes Paradigm, WestLB AG (formerly known
    as Westdeutsche Landesbank Girozentrale), as collateral agent
    for any related Liquidity Provider, any related Credit Support
    Provider, the holders of Commercial Paper issued by Paradigm and
    certain other parties.



 



    “Collection Account” means the account,
    established by the Agent, for the benefit of the Investors,
    pursuant to Section 2.12.



 



    “Collection Agent” means at any time the Person
    then authorized pursuant to Section 6.1 to service,
    administer and collect Receivables.



 



    “Collection Agent Default” has the meaning
    specified in Section 6.4 hereof.



 



    “Collection Delay Period” means 10 days or
    such other number of days as the Agent may select upon three
    Business Days’ notice to the Transferor.



 



    “Collections” means, with respect to any
    Receivable, all cash collections and other cash proceeds of such
    Receivable, including, without limitation, all Finance Charges,
    if any, and cash proceeds of Related Security with respect to
    such Receivable.



 



    “Commercial Obligor” means any Obligor referred
    to in clause (C) or (E) of the definition of
    “Obligor” contained in this Section 1.1 hereof.



 



    “Commercial Paper” means, with respect to any
    Conduit Investor, the promissory notes issued by such Conduit
    Investor in the commercial paper market.



 



    “Commitment” means (i) with respect to
    each Bank Investor party hereto, the agreement of such Bank
    Investor to make acquisitions from the Transferor or the Conduit
    Investor in its Related Group in accordance herewith in an
    amount not to exceed the dollar amount set forth opposite such
    Bank Investor’s name on Schedule II hereto under the
    heading “Commitment”, minus the dollar
    amount of any Commitment or portion thereof assigned pursuant to
    an Assignment and Assumption Agreement plus the dollar
    amount of any




    

    3








 






    increase to such Bank Investor’s Commitment consented to by
    such Bank Investor prior to the time of determination,
    (ii) with respect to any assignee of a Bank Investor party
    hereto taking pursuant to an Assignment and Assumption
    Agreement, the commitment of such assignee to make acquisitions
    from the Transferor or the Conduit Investor in its Related Group
    not to exceed the amount set forth in such Assignment and
    Assumption Agreement minus the dollar amount of any
    Commitment or portion thereof assigned pursuant to an Assignment
    and Assumption Agreement prior to such time of determination and
    (iii) with respect to any assignee of an assignee referred
    to in clause (ii), the commitment of such assignee to make
    acquisitions from the Transferor or the Conduit Investor in its
    Related Group not to exceed the amount set forth in an
    Assignment and Assumption Agreement between such assignee and
    its assign.



 



    “Commitment Termination Date” means
    October 15, 2009, or such later date to which the
    Commitment Termination Date may be extended by Transferor, the
    Agent and the Bank Investors.



 



    “Concentration Account” means a special
    depositary account in the name of the Transferor maintained at a
    bank acceptable to the Agent for the purpose of receiving
    Collections remitted from the Special Accounts and the
    Intermediate Concentration Account.



 



    “Concentration Account Agreement” means an
    agreement substantially in the form attached as
    Exhibit D-2
    hereto among the Transferor, the Concentration Account Bank and
    the Agent.



 



    “Concentration Account Bank” means the bank
    holding the Concentration Account.



 



    “Concentration Account Notice” means a notice,
    in substantially the form of the Notice of Effectiveness
    attached to the Concentration Account Agreement, from the Agent
    to the Concentration Account Bank.



 



    “Concentration Factor” means for any Designated
    Obligor on any date of determination (calculated prior to the
    payment of any Transfer Price to be made on such date but as if
    such payment had been made):



 



    (a) in the case of any Commercial Obligor or Hospital
    Obligor that does not have a Special Concentration Limit (as
    defined below), 2.5% of the Net Receivables Balance outstanding
    on such date; provided that, subject to clause (c)
    below, the Concentration Factor for each of Aetna, Inc., Cigna
    Corp., Wellpoint Inc. and United Healthcare Insurance Company,
    and any successor thereto, shall be (i) for so long as such
    Obligor is rated at least A- by Standard & Poor’s
    and at least A3 by Moody’s and, if rated by Fitch, at least
    A- by Fitch, 10.0% of the Net Receivables Balance outstanding on
    such date and (ii) for so long as clause (i) does not
    apply but such Obligor is rated at least BBB- by
    Standard & Poor’s and at least Baa3 by
    Moody’s and, if rated by Fitch, at least BBB- by Fitch,
    7.0% of the Net Receivables Balance outstanding on such date;



 



    (b) in the case of any US Government Obligor that does not
    have a Special Concentration Limit, 80% of the Net Investment
    outstanding on such date; or



 



    (c) in the case of any Obligor (including any Obligor
    described in clauses (a) and (b)), such higher amount
    determined by the Agent (with the consent of each Administrative
    Agent) or such lower amount determined by any Administrative
    Agent in the reasonable exercise of its good faith judgment and
    disclosed in a written notice delivered to the Transferor and
    the other Administrative Agent (any such higher or lower amount
    being a “Special Concentration Limit”).



 



    “Conduit Investor” means Paradigm, GBFC or
    Liberty Street Funding LLC.



 



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



 



    “Contract” means an agreement between an
    Originating Entity and an Obligor (including, without
    limitation, an oral agreement, a written contract, an invoice or
    an open account agreement) pursuant to or under which such
    Obligor shall be obligated to pay for services or merchandise
    from time to time; provided that, in order to be an
    “Eligible Receivable”, a Receivable must arise from a
    Contract which (i) if in writing, is in substantially the
    form of one of the forms of written contract set forth in
    Exhibit A hereto or otherwise approved by each
    Administrative Agent, and (ii) if an open account
    agreement, is evidenced by one of the forms of invoices set
    forth in Exhibit A hereto or otherwise approved by each
    Administrative Agent.



 



    “Contractual Adjustment” means, with respect to
    any Receivable, an amount by which the outstanding principal
    amount of such Receivable is reduced as a result of
    (i) Medicare or Medicaid program funding and fee
    requirements or (ii) any other reasonable and customary
    insurance company or other charge or reimbursement policies or
    procedures.



 



    “Contractual Adjustment Amount” means, with
    respect to any Receivable originated by a member of the Spectra
    Renal Management Group, at any time, an amount equal to
    (i) 75% of the original outstanding




    

    4








 






    principal amount of such Receivable (excluding any accrued and
    outstanding Finance Charges related thereto) minus
    (ii) the amount of any Contractual Adjustments already
    granted with respect to such Receivable.



 



    “CP Rate” means, for any CP Tranche Period
    for any Conduit Investor, the per annum rate equivalent
    to the weighted average cost (as determined by the related
    Administrative Agent, and which shall include (without
    duplication) the fees and commissions of placement agents and
    dealers, incremental carrying costs incurred with respect to
    Commercial Paper maturing on dates other than those on which
    corresponding funds are received by such Conduit Investor, other
    borrowings by such Conduit Investor and any other costs
    associated with the issuance of Commercial Paper) of or related
    to the issuance of Commercial Paper that are allocated, in whole
    or in part, by such Conduit Investor or its related
    Administrative Agent to fund or maintain the related Tranche
    during such CP Tranche Period (and which may also be
    allocated in part to the funding of other assets of the Conduit
    Investor); provided, however, that if any
    component of any such rate is a discount rate, in calculating
    the “CP Rate” for such Tranche for such CP
    Tranche Period, the related Administrative Agent shall for
    such component use the rate resulting from converting such
    discount rate to an interest bearing equivalent rate per
    annum.



 



    “CP Tranche” means a Tranche as to which
    Discount is calculated at a CP Rate.



 



    “CP Tranche Period” means, with respect to
    a CP Tranche for any Conduit Investor, (i) initially, the
    period commencing on (and including) the date such CP Tranche is
    established and ending on (and including) the next succeeding CP
    Tranche Period End Date, and (ii) thereafter, each
    successive period commencing on (but excluding) a CP
    Tranche Period End Date and ending on (and including) the
    next succeeding CP Tranche Period End Date; provided that,
    from and after the Termination Date, each CP Tranche Period
    shall be such period as may be selected pursuant to
    Section 2.3(b).



 



    “CP Tranche Period End Date” means the
    last day of each calendar month.



 



    “Credit and Collection Policy” shall mean the
    Transferor’s credit and collection policy or policies and
    practices, relating to Contracts and Receivables existing on the
    date hereof and referred to in Exhibit B attached hereto,
    as modified from time to time in compliance with
    Section 5.2(c).



 



    “Credit Support Agreement” means, with respect
    to any Conduit Investor, an agreement between such Conduit
    Investor and a Credit Support Provider evidencing the obligation
    of such Credit Support Provider to provide credit support to
    such Conduit Investor in connection with the issuance by such
    Conduit Investor of Commercial Paper.



 



    “Credit Support Provider” means, with respect
    to any Conduit Investor, the Person or Persons who provides
    credit support to such Conduit Investor in connection with the
    issuance by such Conduit Investor of Commercial Paper.



 



    “Deemed Collections” means any Collections on
    any Receivable deemed to have been received pursuant to
    Section 2.9(a) or (b) hereof.



 



    “Default Ratio” means the ratio (expressed as a
    percentage) computed as of the last day of each calendar month
    by dividing (i) the aggregate Outstanding Balance of all
    Receivables that became Defaulted Receivables during such month
    together with all Receivables under the Medicare or Medicaid
    Program that were deemed disputed as provided for in the
    proviso to clause (xi) of the definition of
    “Eligible Receivables” during such month, by
    (ii) the aggregate Outstanding Balance of Receivables that
    shall have been acquired by the Seller during the month
    occurring nine months prior to such calendar month.



 



    “Defaulted Receivable” means a Receivable:
    (i) as to which any payment, or part thereof, remains
    unpaid for over 270 days from the original due date when a
    contract exists with an Originating Entity that is part of the
    dialysis products division of the Parent Group and otherwise
    from the original invoice date for such Receivable; (ii) as
    to which an Event of Bankruptcy has occurred and is continuing
    with respect to the Obligor thereof; (iii) which has been
    identified by the Transferor, any Originating Entity or the
    Collection Agent as uncollectible (including, without
    limitation, any Receivable that is written off by the
    Transferor, any Originating Entity or the Collection Agent); or
    (iv) which, consistent with the Credit and Collection
    Policy, should be written off as uncollectible.



 



    “Delinquent Receivable” means a Receivable:
    (i) as to which any payment, or part thereof, remains
    unpaid for more than 90 days from the original due date
    when a contract exists with an Originating Entity that is part
    of the dialysis products division of the Parent Group and
    otherwise from the original invoice date for such Receivable and
    (ii) which is not a Defaulted Receivable.




    

    5








 






    “Designated Account Agent” means, in the case
    of any Originating Entity, an Affiliate thereof that
    (i) is, directly or indirectly, a wholly-owned Subsidiary
    of FMCH, (ii) has agreed to maintain a deposit account for
    the benefit of such Originating Entity to which Obligors in
    respect of such Originating Entity have been directed to remit
    payments on Receivables, and (iii) shall have executed and
    delivered to the Agent an Account Agent Agreement.



 



    “Designated Obligor” means, at any time, each
    Obligor; provided, however, that any Obligor shall
    cease to be a Designated Obligor upon notice to the Transferor
    from any Administrative Agent, delivered at any time (with a
    copy to the other Administrative Agents).



 



    “Dilution Horizon” means the ratio (expressed
    as a percentage) computed as of the last day of each calendar
    month by dividing (i) the aggregate Outstanding Balance of
    all Receivables acquired by the Transferor during the calendar
    month preceding such calendar month by (ii) the Net
    Receivables Balance as of such last day of such calendar month.



 



    “Dilution Ratio” means, with respect to any
    calendar month, the greater of (a) the ratio (expressed as
    a percentage) computed as of the last day of such calendar month
    by dividing (i) the aggregate amount of any reductions to
    or cancellations of the respective Outstanding Balances of the
    Receivables as a result of any defective, rejected or returned
    merchandise or services and all credits, rebates, discounts,
    disputes, warranty claims, repossessed or returned goods,
    chargebacks, allowances and any other billing and other
    adjustment (whether effected through the granting of credits
    against the applicable Receivables or by the issuance of a check
    or other payment in respect of (and as payment for) such
    reduction) by the Seller, the Transferor or the Collection
    Agent, provided to Obligors in respect of Receivables during
    such month, excluding (w) any Pre-Arranged Contractual
    Adjustment reflected in the initial Outstanding Balance of the
    applicable Receivable, (x) volume rebates paid in cash by
    the Dialysis Products Division and (y) credit memos for
    future purchases (it being understood and agreed that any
    Receivables arising from such purchases will have an initial
    Outstanding Balance that reflects such credit memos) by
    (ii) the aggregate Outstanding Balance of all Receivables
    which arose during the preceding month and (b) 6.0%.



 



    “Dilution Reserve” means, at any time, an
    amount equal to the product of (i) the Dilution Reserve
    Percentage and (ii) the Net Receivables Balance on such
    date.



 



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



 



    [ (1.5 x ADR) + [(DS − ADR) x (DS/ADR)]] x DH



 


	 	 	 	 	 
	

    Where:


	
 
	
 
	
 
	
 

	

    ADR


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

	

    DS


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

	

    DH


	
 
	
    =
	
 
	
    the Dilution Horizon on such date.

	
 
	
 
	
 
	
 
	
    “Discount” means, with respect to any
    Tranche Period:









 


	 	 	 	 	 	 	 	 	 
	

           


	
 
	
    (TR x
	
 
	
    TNI x
	
 
	
     AD)
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
    360
	
 
	
 









 


	 	 	 	 	 
	

    Where:


	
 
	
 
	
 
	
 

	

    TR


	
 
	
    =
	
 
	
    the Tranche Rate applicable to such Tranche Period.

	

    TNI


	
 
	
    =
	
 
	
    the portion of the Net Investment allocated to such
    Tranche Period.

	

    AD


	
 
	
    =
	
 
	
    the actual number of days during such Tranche Period.









 



    provided, however, that no provision of this
    Agreement shall require the payment or permit the collection of
    Discount in excess of the maximum amount permitted by applicable
    law; and provided, further, that Discount shall
    not be considered paid by any distribution if at any time such
    distribution is rescinded or must be returned for any reason.



 



    “Discount Reserve” means, at any time, an
    amount equal to:



 



    TD + LY



 



    

    6








 





	 	 	 	 	 
	

    Where:


	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 

	

    TD


	
 
	
    =
	
 
	
    the sum of the unpaid Discount for all Tranche Periods to
    which any portion of the 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
    (or, in the case of a CP Tranche Period, during the period
    until the maturity date of the Commercial Paper allocated to
    fund or maintain such Net Investment) if such reductions had not
    occurred, minus (ii) the income, if any, received by the
    recipient of such reductions from investing the proceeds of such
    reductions.



 



    “Effective Date” has the meaning specified in
    Section 1.4.



 



    “Eligible Investments” means any of the
    following (a) negotiable instruments or securities
    represented by instruments in bearer or registered or in
    book-entry form which evidence (i) obligations fully
    guaranteed by the United States of America; (ii) time
    deposits in, or bankers acceptances issued by, any depositary
    institution or trust company incorporated under the laws of the
    United States of America or any state thereof and subject to
    supervision and examination by Federal or state banking or
    depositary institution authorities; provided,
    however, that at the time of investment or contractual
    commitment to invest therein, the certificates of deposit or
    short-term deposits, if any, or long-term unsecured debt
    obligations (other than such obligation whose rating is based on
    collateral or on the credit of a Person other than such
    institution or trust company) of such depositary institution or
    trust company shall have a credit rating from Moody’s and
    S&P of at least
    “P-1”
    and
    “A-1”,
    respectively, in the case of the certificates of deposit or
    short-term deposits, or a rating not lower than one of the two
    highest investment categories granted by Moody’s and by
    S&P; (iii) certificates of deposit having, at the time
    of investment or contractual commitment to invest therein, a
    rating from Moody’s and S&P of at least
    “P-1”
    and
    A-1”,
    respectively; or (iv) investments in money market funds
    rated in the highest investment category or otherwise approved
    in writing by the applicable rating agencies; (b) demand
    deposits in any 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 Moody’s and S& P
    of at least
    “P-1”
    and
    “A-1”,
    respectively; and (e) repurchase agreements involving any
    of the Eligible Investments described in clauses (a)(i),
    (a)(iii) and (d) hereof so long as the other party to the
    repurchase agreement has at the time of investment therein, a
    rating from Moody’s and S&P of at least
    “P-1”
    and
    “A-1”,
    respectively.



 



    “Eligible Receivable” means, at any time, any
    Receivable:



 



    (i) which has been (A) originated by the Seller or a
    Transferring Affiliate, (B) sold by the applicable
    Transferring Affiliate to the Seller pursuant to (and in
    accordance with) the Transferring Affiliate Letter or the BMA
    Transfer Agreement, free and clear of any Adverse Claim, in the
    case of a Receivable originated by a Transferring Affiliate, and
    (C) sold to the Transferor pursuant to (and in accordance
    with) the Receivables Purchase Agreement, with the effect that
    the Transferor has good title thereto, free and clear of all
    Adverse Claims;



 



    (ii) which (together with the Collections and Related
    Security related thereto) has been the subject of either a valid
    transfer and assignment from the Transferor to the Agent, on
    behalf of the Investors, of all of the Transferor’s right,
    title and interest therein or the grant of a first priority
    perfected security interest herein (and in the Collections and
    Related Security related thereto), effective until the
    termination of this Agreement;



 



    (iii) the Obligor of which (A) is a United States
    resident, (B) is a Designated Obligor at the time of the
    initial creation of an interest therein hereunder, (C) is
    not an Affiliate of any Originating Entity or any of the parties
    hereto, and (D) other than in the case of any Obligor of
    the type described in clause (A), (B) or (F) of the
    definition herein of “Obligor”, is not a government or
    a governmental subdivision or agency;



 



    (iv) which is not a Defaulted Receivable at the time of the
    initial creation of an interest therein hereunder;



 



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




    7








 






    (vi) which, (A) arises pursuant to a Contract with
    respect to which each of the Seller and the Transferor has
    performed all material obligations required to be performed by
    it thereunder, including without limitation shipment of the
    merchandise
    and/or the
    performance of the services purchased thereunder; (B) has
    been billed in accordance with the Credit and Collection Policy
    and in accordance with such requirements (including any
    requirements that relate to the timing of billing) as may have
    been imposed by the applicable Obligor thereon (including,
    without limitation, any Official Body associated with any of the
    CHAMPUS/VA, Medicaid or Medicare programs); and
    (C) according to the Contract related thereto, is required
    to be paid in full upon receipt by the Obligor thereof of the
    invoice related thereto or at a later time not to exceed
    90 days from the original billing date therefor;



 



    (vii) which is an “eligible asset” as defined in
    Rule 3a-7
    under the Investment Company Act of 1940, as amended;



 



    (viii) a purchase of which with the proceeds of Commercial
    Paper would constitute a “current transaction” within
    the meaning of Section 3(a)(3) of the Securities Act of
    1933, as amended;



 



    (ix) which is an “account” or “general
    intangible” within the meaning of Article 9 of the UCC
    of all applicable jurisdictions;



 



    (x) which is denominated and payable only in United States
    dollars in the United States;



 



    (xi) which, to the knowledge of the Transferor, the Seller
    and the applicable Transferring Affiliate, after due enquiry in
    accordance with customary practice, (A) arises under a
    Contract that has been duly authorized and that, together with
    the Receivable related thereto, is in full force and effect and
    constitutes the legal, valid and binding obligation of the
    related Obligor enforceable against such Obligor in accordance
    with its terms, (B) is not subject to any litigation,
    dispute, counterclaim or other defense and (C) is not
    subject to any offset other than as set forth in the related
    Contract; provided, however, that for the purposes
    of this clause (xi), any Receivable under the Medicare, Medicaid
    or CHAMPUS/VA program as to which any payment, or part thereof,
    remains unpaid for 270 days or more from the original
    invoice date shall be deemed to be a disputed Receivable and,
    further, any Receivable, for which the Transferor receives a
    partial payment that is below the estimated value of such
    Receivable, net of Contractual Adjustments, shall be deemed to
    be a disputed Receivable;



 



    (xii) which, together with the Contract related thereto,
    does not contravene in any material respect any laws, rules or
    regulations applicable thereto (including, without limitation,
    (A) laws, rules and regulations relating to healthcare,
    insurance, usury, consumer protection, truth in lending, fair
    credit billing, fair credit reporting, equal credit opportunity,
    fair debt collection practices and privacy and
    (B) CHAMPUS/VA Regulations, Medicare Regulations and
    Medicaid Regulations) and with respect to which no part of the
    Contract related thereto is or would, as a result of any of the
    transactions contemplated herein, be in violation of any such
    law, rule or regulation in any material respect and with respect
    to which no Originating Entity or the Transferor, and to the
    best knowledge of the Seller and the Transferor, no other party
    to the Contract related thereto, is in violation of any such
    law, rule or regulation in any material respect;



 



    (xiii) which (A) satisfies in all material respects
    all applicable requirements of the Credit and Collection Policy,
    (B) is assignable as contemplated under the Transaction
    Documents, and (C) complies with such other criteria and
    requirements as any Administrative Agent may from time to time
    specify to the Transferor following five Business Days’
    notice;



 



    (xiv) which was generated in the ordinary course of an
    Originating Entity’s business;



 



    (xv) the Obligor of which has been directed to make all
    payments to a Special Account with respect to which there shall
    be a Special Account Letter (and, if applicable, an Account
    Agent Agreement) in effect;



 



    (xvi) neither the assignment of which under the
    Transferring Affiliate Letter or the BMA Transfer Agreement by
    the applicable Transferring Affiliate, the assignment of which
    under the Receivables Purchase Agreement by the Seller and the
    assignment of which hereunder by the Transferor nor the
    performance or execution of any of the other transactions
    contemplated in any of the Transaction Documents with respect
    thereto violates, conflicts or contravenes any applicable laws,
    rules or regulations (including without limitation, any
    CHAMPUS/VA Regulations, any Medicaid Regulations and any
    Medicare Regulations), orders or writs or any contractual or
    other restriction, limitation or encumbrance;




    

    8








 






    (xvii) which has not been compromised, adjusted or modified
    (including by the extension of time for payment or the granting
    of any discounts, allowances or credits); provided,
    however, that only such portion of such Receivable that
    is the subject of such compromise, adjustment or modifications
    shall be deemed to be ineligible pursuant to the terms of this
    clause (xvii);



 



    (xviii) which, in the case of any Receivable payable by an
    Obligor through a fiscal intermediary or similar entity, is
    payable through one of the Persons in such capacity that is
    specified in Exhibit N hereto or that has otherwise been
    approved by each Administrative Agent; and



 



    (xix) as to which, in the case of any Obligor of the type
    described in clause (C) or (D) of the definition of
    “Obligor” herein, notice of the interest therein of
    the Transferor shall have been given to such Obligor.



 



    “ERISA” means the U.S. Employee Retirement
    Income Security Act of 1974, as amended from time to time, and
    the regulations promulgated and rulings issued thereunder.



 



    “ERISA Affiliate” means, with respect to any
    Person, (i) any corporation which is a member of the same
    controlled group of corporations (within the meaning of
    Section 414(b) of the Code (as in effect from time to time,
    the “Code”)) as such Person; (ii) a trade or
    business (whether or not incorporated) under common control
    (within the meaning of Section 414(c) of the Code) with
    such Person; or (iii) a member of the same affiliated
    service group (within the meaning of Section 414(n) of the
    Code) as such Person, any corporation described in
    clause (i) above or any trade or business described in
    clause (ii) above.



 



    “Estimated Maturity Period” shall mean, at any
    time, the period, rounded upward to the nearest whole number of
    days, equal to the weighted average number of days until due of
    the Receivables as calculated by the Collection Agent in good
    faith and set forth in the most recent Investor Report, such
    calculation to be based on the assumptions that (a) each
    Receivable within a particular aging category (as set forth in
    the Investor Report) will be paid on the last day of such aging
    category and (b) the last day of the last such aging
    category coincides with the last date on which any Outstanding
    Balance of Receivables would be written off as uncollectible or
    charged against any applicable reserve or similar account in
    accordance with the objective requirements of the Credit and
    Collection Policy and the Seller’s and the
    Transferor’s normal accounting practices applied on a basis
    consistent with those reflected in the Seller’s financial
    statements, provided, however, that if the Agent,
    any Administrative Agent or any Investor shall reasonably
    disagree with any such calculation, the Agent may recalculate
    the Estimated Maturity Period, and such recalculation, in the
    absence of manifest error, shall be conclusive.



 



    “Eurodollar Rate” means, with respect to any
    Eurodollar Tranche Period for the Investors in any Related
    Group, a rate which is equal to the sum (rounded upwards, if
    necessary, to the next higher 1/100 of 1%) of (A) the
    Applicable Margin at such time, (B) the rate obtained by
    dividing (i) the applicable LIBOR Rate by (ii) a
    percentage equal to 100% minus the reserve percentage used for
    determining the maximum reserve requirement as specified in
    Regulation D (including, without limitation, any marginal,
    emergency, supplemental, special or other reserves) that is
    applicable to the Administrative Agent for such Related Group
    during such Eurodollar Tranche Period in respect of
    eurocurrency or eurodollar funding, lending or liabilities (or,
    if more than one percentage shall be so applicable, the daily
    average of such percentage for those days in such Eurodollar
    Tranche Period during which any such percentage shall be
    applicable) plus (C) the then daily net annual assessment
    rate (rounded upwards, if necessary, to the nearest 1/100 of 1%)
    as estimated by such Administrative Agent for determining the
    current annual assessment payable by such Administrative Agent
    to the Federal Deposit Insurance Corporation in respect of
    eurocurrency or eurodollar funding, lending or liabilities.



 



    “Eurodollar Tranche” means a Tranche as to
    which Discount is calculated at the Eurodollar Rate.



 



    “Eurodollar Tranche Period” means, with
    respect to a Eurodollar Tranche for the Investors in any Related
    Group, prior to the Termination Date, a period of up to one
    month requested by the Transferor and agreed to by the
    Administrative Agent for such Related Group, commencing on a
    Business Day requested by the Transferor and agreed to by such
    Administrative Agent; provided, however, that if
    such Eurodollar Tranche Period would expire on a day which
    is not a Business Day, such Eurodollar Tranche Period shall
    expire on the next succeeding Business Day; provided,
    further, that if such Eurodollar Tranche Period
    would expire on (a) a day which is not a Business Day but
    is a day of the month after which no further Business Day occurs
    in such month, such Eurodollar Tranche Period shall expire
    on the next preceding Business Day or (b) a Business Day
    for which there is no numerically corresponding day in the
    applicable subsequent calendar month, such Eurodollar
    Tranche Period shall expire on the last Business Day of
    such month.




    

    9








 






    “Event of Bankruptcy” means, with respect to
    any Person, (i) that such Person (a) shall generally
    not pay its debts as such debts become due or (b) shall
    admit in writing its inability to pay its debts generally or
    (c) shall make a general assignment for the benefit of
    creditors; (ii) any proceeding shall be instituted by or
    against such Person seeking to adjudicate it as bankruptcy or
    insolvent, or seeking liquidation, winding up, reorganization,
    arrangements, adjustment, protection, relief or composition of
    it or its debts under any law relating to bankruptcy, insolvency
    or reorganization or relief of debtors, or seeking the entry of
    an order for relief or the appointment of a receiver, trustee or
    other similar official for it or any substantial part of its
    property or (iii) if such Person is a corporation (or other
    business entity), such Person or any Subsidiary shall take any
    corporate (or analogous) action to authorize any of the actions
    set forth in the preceding clauses (i) or (ii).



 



    “Excluded Taxes” shall have the meaning
    specified in Section 8.3 hereof.



 



    “Existing TAA” shall have the meaning specified
    in the Preliminary Statements hereof.



 



    “Face Amount” means, with respect to any
    Commercial Paper, (i) the face amount of any such
    Commercial Paper issued on a discount basis and (ii) the
    principal amount of, plus the amount of all interest accrued and
    to accrue thereon to the stated maturity date of, any such
    Commercial Paper issued on an interest-bearing basis.



 



    “Facility Fee” means, with respect to any
    Conduit Investor, a fee payable by the Transferor to such
    Conduit Investor pursuant to Section 2.7(ii) hereof, the
    terms of which are set forth in the Investor Fee Letter.



 



    “Facility Limit” means $550,000,000;
    provided that such amount may not at any time exceed the
    aggregate Commitments at any time in effect.



 



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



 



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



 



    “FME KGaA” means Fresenius Medical Care
    AG & Co. KgaA., formerly known as Fresenius Medical
    Care AG, a partnership limited by shares organized and existing
    under the laws of the Federal Republic of Germany and its
    successors and permitted assigns.



 



    “FME KGaA Credit Facility” means (i) the
    Bank Credit Agreement dated as of March 31, 2006 among FME
    KGaA, FMCH, the other borrowers identified therein, the
    guarantors identified therein, the lenders party thereto, and
    Bank of America, N.A., as Administrative Agent, and
    (ii) the Term Loan Credit Agreement dated as of
    March 31, 2006 among FME KGaA, FMCH, the other borrowers
    identified therein, the guarantors identified therein, the
    lenders party thereto, and Bank of America, N.A., as
    Administrative Agent, in each case, as amended, restated,
    supplemented, modified, renewed, refunded, replaced or
    refinanced and in effect at any time.



 



    “FMCH” means Fresenius Medical Care Holdings,
    Inc., a New York corporation, and its successors and permitted
    assigns.



 



    “GAAP” means generally accepted accounting
    principles set forth in the opinions and pronouncements of the
    Accounting Principles Board of the American Institute of
    Certified Public Accountants and statements and pronouncements
    of the Financial Accounting Standards Board or in such other
    statements by such accounting profession, which are in effect as
    of the date of this Agreement.



 



    “GBFC” means Giro Balanced Funding Corporation
    together with its successors and permitted assigns.



 



    “Group Majority Investors” has the meaning
    specified in Section 9.8.



 



    “Guaranty” means, with respect to any Person
    any agreement by which such Person assumes, guarantees,
    endorses, contingently agrees to purchase or provide funds for
    the payment of, or otherwise becomes liable upon, the obligation
    of any other Person, or agrees to maintain the net worth or
    working capital or other financial condition of any other Person
    or otherwise assures any other creditor of such other Person
    against loss, including, without limitation, any comfort letter,
    operating agreement or take-or-pay contract and shall include,
    without limitation, the contingent liability of such Person in
    connection with any application for a letter of credit.



 



    “HHS” means the Department of Health and Human
    Services, an agency of the Federal Government of the United
    States.



 



    “Hospital Obligor” means any Obligor referred
    to in clause (D) of the definition of “Obligor”
    contained in this Section 1.1 hereof.




    

    10








 






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



 



    “Indebtedness” means, with respect to any
    Person and without duplication, such Person’s
    (i) obligations for borrowed money, (ii) obligations
    representing the deferred purchase price of property other than
    accounts payable arising in the ordinary course of such
    Person’s business on terms customary in the trade,
    (iii) obligations, whether or not assumed, secured by liens
    or payable out of the proceeds or production from property now
    or hereafter owned or acquired by such Person,
    (iv) obligations which are evidenced by notes, acceptances,
    or other instruments, (v) Capitalized Lease obligations and
    (vi) obligations for which such Person is obligated
    pursuant to a Guaranty.



 



    “Indemnified Amounts” has the meaning specified
    in Section 8.1 hereof.



 



    “Indemnified Parties” has the meaning specified
    in Section 8.1 hereof.



 



    “Initial Transfer Documents” shall have the
    meaning specified in Section 5.2(h).



 



    “Interest Component” shall mean, (i) with
    respect to any Commercial Paper issued on an interest-bearing
    basis, the interest payable on such Commercial Paper at its
    maturity (including any dealer commissions) and (ii) with
    respect to any Commercial Paper issued on a discount basis, the
    portion of the face amount of such Commercial Paper representing
    the discount incurred in respect thereof (including any dealer
    commissions).



 



    “Intermediate Concentration Account” means a
    special depositary account in the name of the Transferor
    maintained at a Special Account Bank for the purpose of
    receiving Collections remitted from the Special Account(s)
    maintained at such Special Account Bank.



 



    “Intermediate Concentration Account Agreement”
    means an agreement substantially in the form attached as
    Exhibit D-3
    hereto (or in such other form as may be approved in writing by
    the Agent) among the Transferor, an Intermediate Concentration
    Bank and the Agent.



 



    “Intermediate Concentration Account Bank” means
    a bank holding an Intermediate Concentration Account.



 



    “Intermediate Concentration Account Notice”
    means a notice, in substantially the form of the Notice of
    Effectiveness attached to an Intermediate Concentration Account
    Agreement, from the Agent to the applicable Intermediate
    Concentration Account Bank.



 



    “Investor” means a Conduit Investor or a Bank
    Investor.



 



    “Investor Fee Letter” means the Amended and
    Restated Investor Fee Letter dated as of the Closing Date among
    the Transferor and the Administrative Agents relating to certain
    fees payable by the Transferor to the Administrative Agents, for
    the account of the Investors in their respective Related Groups,
    as amended, restated, supplemented or otherwise modified from
    time to time.



 



    “Investor Report” means a report, in
    substantially the form attached hereto as Exhibit E or in
    such other form as is mutually agreed to by the Transferor and
    each Administrative Agent, furnished by the Collection Agent
    pursuant to Section 2.11 hereof.



 



    “Law” means any law (including common law),
    constitution, statute, treaty, regulation, rule, ordinance,
    order, injunction, writ, decree or award of any Official Body.



 



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



 



    “LIBOR Rate” means, with respect to any
    Eurodollar Tranche Period for the Investors in any Related
    Group, the rate at which deposits in dollars are offered to the
    Administrative Agent for such Related Group, in the London
    interbank market at approximately 11:00 a.m. (London time)
    two Business Days before the first day of such Eurodollar
    Tranche Period in an amount approximately equal to the
    Eurodollar Tranche to which the Eurodollar Rate is to apply and
    for a period of time approximately equal to the applicable
    Eurodollar Tranche Period.



 



    “Liquidation Yield” means, at any time, an
    amount equal to:



 


	 	 	 	 	 	 	 	 	 	 	 	 	 
	
 
	
 
	
    (RVF x
	
 
	
     LBR x
	
 
	
     NI) x
	
 
	
     (EMP +
	
 
	
    CDF)
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	

    360


	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 









 



    

    11








 





	 	 	 	 	 
	

    Where:


	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 

	

    RVF


	
 
	
    =
	
 
	
    the Rate Variance Factor at such time;

	

    LBR


	
 
	
    =
	
 
	
    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 of Commercial Paper.



 



    “Liquidity Provider Agreement” means an
    agreement between a Conduit Investor and one or more Liquidity
    Providers evidencing the obligation of each such Liquidity
    Provider to provide liquidity support to such Conduit Investor
    in connection with the issuance by such Conduit Investor of
    Commercial Paper.



 



    “Loss Horizon” means, as of any date, the
    product of (a) a ratio (expressed as a percentage) computed
    by dividing (i) the aggregate Outstanding Balance of all
    Receivables acquired by the Transferor during the two
    (2) most recently ended calendar months by (ii) the
    aggregate Outstanding Balance of all Receivables that are not
    more than 270 days past due as of the last day of the most
    recently ended calendar month times (b) the highest average
    Default Ratio for any consecutive three month period during the
    immediately preceding
    12-month
    period.



 



    “Loss Percentage” means on any day the greater
    of (i) two (2) times the Loss Horizon as of such day
    and (ii) 20%.



 



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



 



    LP x (NRB + DLR + DR + SFR)



 


	 	 	 	 	 
	

    Where:


	
 
	
 
	
 
	
 

	

    LP


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

	

    NRB


	
 
	
    =
	
 
	
    the Net Receivables Balance 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;

	

    SFR


	
 
	
    =
	
 
	
    the Servicing Fee Reserve at the close of business of the
    Collection Agent on such day









 



    “Loss-to-Liquidation Ratio” means the ratio
    (expressed as a percentage) computed as of the last day of each
    calendar month by dividing (i) the aggregate Outstanding
    Balance of all Receivables which became Defaulted Receivables
    during such month, by (ii) the aggregate amount of
    Collections received by the Collection Agent during such period.



 



    “Majority Investors” means, at any time, those
    Investors which hold Commitments aggregating in excess of 51% of
    the aggregate Commitments of all Investors as of such date.



 



    “Material Adverse Effect” means a material
    adverse effect on any of (i) the collectibility or
    enforceability of a material portion of the Receivables or
    Related Security, (ii) the ability of the Transferor or any
    Originating Entity to charge or collect a material portion of
    the Receivables or Related Security, (iii) the ability of
    (A) the Transferor or any Originating Entity to perform or
    observe in any material respect any provision of this Agreement
    or any other Transaction Document to which it is a party or
    (B) of FME KGaA or FMCH to cause the due and punctual
    performance and observation by the Seller or the Transferor of
    any such provision or, if the Seller or the Transferor shall
    fail to do so, to perform or observe any such provision required
    to be performed or observed by the Seller or the Transferor
    under this Agreement or any other Transaction Document to which
    the Seller or the Transferor is party, in each case pursuant to
    the Parent Agreement, (iv) the ability of (A) any
    Transferring Affiliate to perform or observe in any material
    respect any provision of the Transferring Affiliate Letter or,
    in the case of BMA, the BMA Transfer Agreement or, in the case
    of any Designated Account Agent, the applicable Account Agent
    Agreement, or (B) of FME KGaA or FMCH to cause the due and
    punctual performance and observation by such Transferring
    Affiliate, BMA or such Designated Account Agent of any such
    provision or, if such Transferring Affiliate, BMA or such
    Designated




    12








 






    Account Agent shall fail to do so, to perform or observe any
    such provision, in each case pursuant to the Parent Agreement,
    (v) the financial condition, operations, businesses or
    properties, each on a consolidated basis, of FME KGaA, FMCH, NMC
    or the Transferor or (vi) the interests of the Agent, any
    Administrative Agent or any of the Investors under the
    Transaction Documents.



 



    “Maximum Net Investment” means at any time, an
    amount equal to 98% of the Facility Limit in effect at such time.



 



    “Maximum Percentage Factor” means 98%.



 



    “Medicaid” means the medical assistance program
    established by Title XIX of the Social Security Act
    (42 USC §§ 1396 et seq.) and
    any statutes succeeding thereto.



 



    “Medicaid Regulations” means, collectively,
    (a) all federal statutes (whether set forth in
    Title XIX of the Social Security Act or elsewhere)
    affecting Medicaid; (b) all state statutes and plans for
    medical assistance enacted in connection with such statutes and
    federal rules and regulations promulgated pursuant to or in
    connection with such statutes; and (c) all applicable
    provisions of all rules, regulations manuals, orders and
    administrative, reimbursement and other guidelines of all
    Governmental Authorities (including, without limitation, HHS,
    CMS, the office of the Inspector General for HHS, or any Person
    succeeding to the functions of any of the foregoing) promulgated
    pursuant to or in connection with any of the foregoing (whether
    or not having the force of law), in each case as may be amended,
    supplemented or otherwise modified from time to time.



 



    “Medicare” means the health insurance program
    for the aged and disabled established by Title XVIII of the
    Social Security Act (42 USC §§ 1395 et seq.)
    and any statutes succeeding thereto.



 



    “Medicare Regulations” means, collectively,
    (a) all federal statutes (whether set forth in
    Title XVIII of the Social Security Act or elsewhere)
    affecting Medicare; and (b) all applicable provisions of
    all rules, regulations, manuals, orders and administrative,
    reimbursement and other guidelines of all Governmental
    Authorities (including, without limitation, HHS, CMS, the Office
    of the Inspector General for HHS, or any Person succeeding to
    the functions of any of the foregoing) promulgated pursuant to
    or in connection with the foregoing (whether or not having the
    force of law), as each may be amended, supplemented or otherwise
    modified from time to time.



 



    “Minimum Amount” shall have the meaning
    specified in Section 5.1(h).



 



    “Moody’s” means Moody’s Investors
    Service.



 



    “Multiemployer Plan” means a
    “multiemployer plan” as defined in
    Section 4001(a)(3) of ERISA which is or was at any time
    during the current year or the immediately preceding five years
    contributed to by the Transferor, the Seller or any ERISA
    Affiliate of the Transferor or the Seller on behalf of its
    employees.



 



    “Net Asset Test” shall mean, in connection with
    any assignment by a Conduit Investor of an interest in the Net
    Investment pursuant to Section 9.7 hereof, that on the day
    immediately prior to the day on which such assignment is to take
    effect, the Net Receivables Balance shall be greater than the
    Net Investment.



 



    “Net Investment” means the sum of the cash
    amounts paid to the Transferor for each Incremental Transfer
    less the aggregate amount of Collections received and applied by
    the Agent to reduce such Net Investment pursuant to
    Section 2.5, 2.6 or 2.9 hereof; provided that the
    Net Investment shall be restored and reinstated in the amount of
    any Collections so received and applied if at any time the
    distribution of such Collections is rescinded or must otherwise
    be returned for any reason; and provided further
    that the Net Investment may be increased by the amount described
    in Section 9.7(d) as described therein. A portion of the
    Net Investment shall be deemed to be held by an Investor to the
    extent such portion of the Net Investment shall have been funded
    by, or assigned to, such Investor.



 



    “Net Receivables Balance” means at any time the
    Outstanding Balance of the Eligible Receivables at such time
    reduced, without duplication, by the sum of (i) the
    aggregate amount by which the Outstanding Balance of all
    Eligible Receivables of each Designated Obligor or class of
    Designated Obligors exceeds the Concentration Factor for such
    Designated Obligor or class of Designated Obligors, plus
    (ii) the aggregate Outstanding Balance of all Eligible
    Receivables which are Defaulted Receivables, plus
    (iii) the excess, if any, of (A) the aggregate
    Outstanding Balance of all Eligible Receivables of each Obligor
    referred to in clause (G) of the definition of
    “Obligor” contained in this Section 1.1, over
    (B) an amount equal to 5% of the aggregate Outstanding
    Balance of all Eligible Receivables, plus (iv) the
    aggregate amount by which the Outstanding Balance of all
    Eligible Receivables originated by any member of the Spectra
    Renal Management Group exceeds 7.5% of Eligible Receivables,
    plus (v) the Unrealized Contractual Adjustment Reserve.




    

    13








 






    “NMC” means National Medical Care, Inc., a
    Delaware corporation and owner of 100% of the outstanding stock
    of the Transferor.



 



    “NPRBI” shall have the meaning specified in
    Section 2.13.



 



    “Obligor” of any Receivable means (i) any
    Person obligated to make payments of such Receivable pursuant to
    a Contract
    and/or
    (ii) any Person owing any amount in respect of such
    Receivable, or in respect of any Related Security with respect
    to such Receivable, all such Persons referred to in any of
    clauses (A), (B), (E), (F) and (G) below, and each
    Person referred to in any of clauses (C) and
    (D) below, to be deemed for purposes of this Agreement to
    be one Obligor:



 



    (A): all Persons owing Receivables or Related Security under the
    Medicare program;



 



    (B): all Persons owing Receivables or Related Security under the
    Medicaid program;



 



    (C): each Person which is an insurance company;



 



    (D): each Person which is a hospital or other health care
    provider;



 



    (E): all Persons, other than health care providers or Persons
    referred to in clause (A), (B), (C) or (D) above or
    clause (F) or (G) below, owing Receivables arising
    from the sale of services or merchandise;



 



    (F): all Persons owing Receivables or Related Security under the
    CHAMPUS/VA Program; and



 



    (G): all Persons who receive the services or merchandise the
    sale of which results in Receivables that are not insured,
    guaranteed or otherwise supported in respect thereof by any of
    the Persons referred to in clauses (A) through
    (F) above, including any Person owing any amount in respect
    of Receivables by reason of insurance policy deductibles or
    co-insurance agreements or arrangements.



 



    “Official Body” means any government or
    political subdivision or any agency, authority, bureau, central
    bank, commission, department or instrumentality of any such
    government or political subdivision, or any court, tribunal,
    grand jury or arbitrator, or any accounting board or authority
    (whether or not a part of government) which is responsible for
    the establishment or interpretation of national or international
    accounting principles in each case whether foreign or domestic.



 



    “Original Closing Date” means August 28,
    1997.



 



    “Originating Entity” means any of the Seller
    and any Transferring Affiliate.



 



    “Other Transferor” means, with respect to any
    Conduit Investor, any Person other than the Transferor that has
    entered into a receivables purchase agreement or transfer and
    administration agreement with such Conduit Investor.



 



    “Outstanding Balance” means (i) with
    respect to any Receivable originated by a member of the Spectra
    Renal Management Group, the outstanding principal amount thereof
    (excluding any accrued and outstanding Finance Charges related
    thereto) minus the Contractual Adjustment Amount with
    respect to such Receivable and (ii) with respect to any
    other Receivable, the outstanding principal amount thereof
    (excluding any accrued and outstanding Finance Charges related
    thereto) minus the amount of Pre-Arranged Contractual
    Adjustments that have not yet been applied to reduce such
    outstanding principal amount.



 



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



 



    “Parent Agreement” means the Amended and
    Restated Parent Agreement, substantially in the form set forth
    as Exhibit P hereto, dated as of the Closing Date made by
    FME KGaA and FMCH in respect of the obligations of the
    Originating Entities and NMC under the Transaction Documents, as
    the same may be amended, restated, supplemented or otherwise
    modified from time to time with the consent of each
    Administrative Agent.



 



    “Parent Group” means, collectively, FME KGaA,
    FMCH, NMC, the Transferor, the Originating Entities and their
    Subsidiaries and Affiliates, and “Parent Group
    Member” means any such Person individually.



 



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



 



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



 


	 	 	 	 	 	 	 	 	 	 	 	 	 
	

           


	
 
	
    NI +
	
 
	
     LR +
	
 
	
    DLR +
	
 
	
    DR +
	
 
	
    SFR
	
 
	
 

	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 

	

    NRB












    

    14








 





	 	 	 	 	 
	

    Where:


	
 
	
 
	
 
	
 

	

    NI


	
 
	
    =
	
 
	
    the 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.



 



    “Pre-Arranged Contractual Adjustment” means,
    with respect to any Receivable, a Contractual Adjustment that
    was agreed upon by the applicable Originating Entity and the
    applicable Obligor on or prior to the date such Receivable arose.



 



    “Primary Payor” means (i) each Obligor
    referred to in clauses (A), (B), (E), (F) and (G) of
    the definition of “Obligor” contained in this
    Section 1.1, (ii) collectively, all Obligors of the
    type referred to in clause (C) of the definition of
    “Obligor” contained in this Section 1.1 and
    (iii) collectively, all Obligors of the type referred to in
    clause (D) of the definition of “Obligor”
    contained in this Section 1.1.



 



    “Pro Rata Share” means, for a Bank Investor in
    any Related Group, the Commitment of such Bank Investor divided
    by the sum of the Commitments of all Bank Investors in such
    Related Group.



 



    “Proceeds” means “proceeds” as
    defined in
    Section 9-306
    (1) of the UCC as in effect on the date hereof.



 



    “Program Fee” means, with respect to any
    Conduit Investor, the fee payable by the Transferor to such
    Conduit Investor pursuant to Section 2.7(i) hereof, the
    terms of which are set forth in the Investor Fee Letter.



 



    “Purchased Interest” means the interest in the
    Receivables acquired by a Liquidity Provider from a Conduit
    Investor through purchase pursuant to the terms of a Liquidity
    Provider Agreement.



 



    “Purchase Termination Date” means the date upon
    which the Transferor shall cease, for any reason whatsoever, to
    make purchases of Receivables from the Seller under the
    Receivables Purchase Agreement or the Receivables Purchase
    Agreement shall terminate for any reason whatsoever.



 



    “Ratable Share” means (i) in the case of a
    Conduit Investor in any Related Group, a fraction (expressed as
    a percentage) equal to the Related Group Limit of such Related
    Group divided by the Facility Limit and (ii) in the case of
    a Bank Investor, a fraction (expressed as a percentage) equal to
    such Bank Investor’s Commitment divided by the sum of the
    Commitments of all Bank Investors (including Bank Investors from
    other Related Groups).



 



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



 



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



 



    “Receivable” means the indebtedness of any
    Obligor, whether constituting an account, chattel paper,
    instrument, insurance claim, investment property or general
    intangible, arising in connection with the sale or lease of
    merchandise, or the rendering of services, by an Originating
    Entity, and includes the right to payment of any Finance Charges
    and other obligations of such Obligor with respect thereto.



 



    “Receivable Systems” has the meaning specified
    in Section 3.1(aa).



 



    “Receivables Purchase Agreement” means the
    Amended and Restated Receivables Purchase Agreement dated as of
    the Closing Date by and between NMC, as seller, and the
    Transferor, as purchaser, as such agreement may be amended,
    modified or supplemented and in effect from time to time.



 



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




    

    15








 






    “Records” means all Contracts and other
    documents, books, records and other information (including,
    without limitation, computer programs, tapes, discs, punch
    cards, data processing software and related property and rights)
    maintained with respect to receivables and the related Obligors.



 



    “Reinvestment Termination Date” means, with
    respect to any Conduit Investor, the second Business Day after
    the delivery by such Conduit Investor to the Transferor of
    written notice that such Conduit Investor elects to commence the
    amortization of its interest in the Net Investment or otherwise
    liquidate its interest in the Transferred Interest.



 



    “Reinvestment Transfer” means a Transfer
    occurring in connection with the reinvestment of Collections
    pursuant to Section 2.2(b) and 2.5.



 



    “Related Group” means any of the following
    groups: (i) Paradigm, as a Conduit Investor, Landesbank
    Hessen-Thueringen Girozentrale, as a Bank Investor and WestLB,
    as a Bank Investor and as an Administrative Agent, together with
    their respective successors and permitted assigns,
    (ii) GBFC, as a Conduit Investor, and Bayerische
    Landesbank, Cayman Islands Branch, as a Bank Investor and
    Bayerische Landesbank, New York Branch, as an Administrative
    Agent, together with their respective successors and permitted
    assigns and (iii) Liberty Street, as a Conduit Investor,
    and Scotiabank, as a Bank Investor and as Administrative Agent,
    together with their respective successors and permitted assigns.



 



    “Related Group Limit” means, with respect to
    any Related Group, the aggregate Commitments of the Bank
    Investors in such Related Group.



 



    “Related Security” means with respect to any
    Receivable, all of the Transferor’s rights, title and
    interest in, to and under:



 



    (i) all of the Seller’s, the Transferor’s or any
    Transferring Affiliate’s interest, if any, in the
    merchandise (including returned or repossessed merchandise), if
    any, the sale of which gave rise to such Receivable;



 



    (ii) all other security interests or liens and property
    subject thereto from time to time, if any, purporting to secure
    payment of such Receivable, whether pursuant to the Contract
    related to such Receivable or otherwise, together with all
    financing statements signed by an Obligor describing any
    collateral securing such Receivable;



 



    (iii) all guarantees, indemnities, warranties, insurance
    (and proceeds and premium refunds thereof) or other agreements
    or arrangements of any kind from time to time supporting or
    securing payment of such Receivable whether pursuant to the
    Contract related to such Receivable or otherwise, including,
    without limitation, insurance, guaranties and other agreements
    or arrangements under the Medicare program, the Medicaid
    program, state renal programs, CHAMPUS/VA, private insurance
    policies, and hospital and other health care programs and health
    care provider arrangements;



 



    (iv) all Records related to such Receivable;



 



    (v) all rights and remedies of the Transferor
    (A) under the Receivables Purchase Agreement, together with
    all financing statements filed by the Transferor against the
    Seller in connection therewith, (B) under the Transferring
    Affiliate Letter, together with all financing statements filed
    in connection therewith against the Transferring Affiliates,
    (C) under the BMA Transfer Agreement, together with all
    financing statements filed in connection therewith against BMA
    and (D) under the Parent Agreement; and



 



    (vi) all Proceeds of any of the foregoing.



 



    “Scotiabank” means The Bank of Nova Scotia,
    together with its successors and permitted assigns.



 



    “Section 8.2 Costs” has the meaning
    specified in Section 8.2(d) hereof.



 



    “Seller” means NMC and its successors and
    permitted assigns.



 



    “Servicing Fee” means the fees payable by the
    Investors in a Related Group to the Collection Agent, with
    respect to a Tranche held by the Investors in such Related
    Group, in an amount equal to 0.25% per annum on the amount of
    the Net Investment allocated to such Tranche pursuant to
    Section 2.3 hereof. Such fee shall accrue from the date of
    the initial purchase of an interest in the Receivables to the
    date on which the Percentage Factor is reduced to zero. Such fee
    shall be payable only from Collections pursuant to, and subject
    to the priority of payments set forth in, Section 2.5
    hereof. After the Termination Date, such fee shall be payable
    only from Collections pursuant to, and subject to the priority
    of payments set forth in, Section 2.6 hereof.




    

    16








 






    “Servicing Fee Reserve” means at any time an
    amount equal to the product of (i) the aggregate
    Outstanding Balance of all Receivables at such time,
    (ii) the Servicing Fee percentage and (iii) a fraction
    having as the numerator, the sum of (a) the Estimated
    Maturity Period plus (b) the Collection Delay
    Period, and as the denominator, 360.



 



    “Social Security Act” means the Social Security
    Act, as amended from time to time, and the regulations
    promulgated and rulings and advisory opinions issued thereunder.



 



    “Special Account” means a special depositary
    account maintained at a bank acceptable to the Agent for the
    purpose of receiving Collections, which account is in the name
    of either (i) the Originating Entity in respect of the
    Receivables giving rise to such Collections or (ii) a
    Designated Account Agent acting on behalf of such Originating
    Entity.



 



    “Special Account Bank” means any of the banks
    holding one or more Special Accounts.



 



    “Special Account Letter” means a letter, in
    substantially the form of
    Exhibit D-1
    hereto, from an Originating Entity (or, if applicable, a
    Designated Account Agent) to any Special Account Bank, executed
    by such Originating Entity (or such Designated Account Agent) to
    such Special Account Bank.



 



    “Spectra Renal Management Group” means,
    collectively, Spectra East, Inc., a Delaware corporation,
    Spectra Laboratories, Inc., a Nevada corporation, as
    Transferring Affiliates, and their respective successors.



 



    “Standard & Poor’s” or
    “S&P” means Standard &
    Poor’s Ratings Services, a division of McGraw-Hill
    Companies, Inc.



 



    “Subordinated Note” shall have the meaning
    specified in the Receivables Purchase Agreement.



 



    “Subsidiary” of a Person means any Person more
    than 50% of the outstanding voting interests of which shall at
    any time be owned or controlled, directly or indirectly, by such
    Person or by one or more Subsidiaries of such Person or any
    similar business organization which is so owned or controlled.



 



    “Taxes” shall have the meaning specified in
    Section 8.3 hereof.



 



    “Termination Date” means the earliest of
    (i) the Business Day designated by the Transferor to each
    Administrative Agent as the Termination Date at any time
    following 60 days’ written notice to each
    Administrative Agent, (ii) the day upon which the
    Termination Date is declared or automatically occurs pursuant to
    Section 7.2(a) hereof, (iii) the Commitment
    Termination Date or (iv) the Purchase Termination Date.



 



    “Termination Event” means an event described in
    Section 7.1 hereof.



 



    “Tranche” means a portion of the Net Investment
    allocated to a Tranche Period pursuant to Section 2.3
    hereof.



 



    “Tranche Period” means a CP
    Tranche Period, a BR Tranche Period or a Eurodollar
    Tranche Period.



 



    “Tranche Rate” means the CP Rate, the Base
    Rate or the Eurodollar Rate.



 



    “Transaction Costs” has the meaning specified
    in Section 8.4(a) hereof.



 



    “Transaction Documents” means, collectively,
    this Agreement, the Receivables Purchase Agreement, the Fee
    Letters, the Special Account Letters, the Concentration Account
    Agreement, the Account Agent Agreement(s), the Certificates, the
    Transfer Certificates, the Transferring Affiliate Letter, the
    BMA Transfer Agreement, the Parent Agreement, the Intermediate
    Concentration Account Agreements, and all of the other
    instruments, documents and other agreements executed and
    delivered by any Originating Entity, FME KGaA, FMCH, NMC or the
    Transferor in connection with any of the foregoing, in each
    case, as the same may be amended, restated, supplemented or
    otherwise modified from time to time.



 



    “Transfer” means a conveyance, transfer and
    assignment by the Transferor to the Agent, for the benefit of
    the Investors, of an undivided percentage ownership interest in
    Receivables hereunder together with Related Security,
    Collections and Proceeds with respect thereto (including,
    without limitation, as a result of any reinvestment of
    Collections in Transferred Interests pursuant to
    Sections 2.2(b) and 2.5).



 



    “Transfer Certificate” has the meaning
    specified in Section 2.2(a) hereof.



 



    “Transfer Date” means, with respect to each
    Transfer, the Business Day on which such Transfer is made.




    

    17








 






    “Transfer Price” means with respect to any
    Incremental Transfer to be made by the Agent, on behalf of the
    Investors participating in such Incremental Transfer, the amount
    paid to the Transferor by such Investors as described in the
    applicable Transfer Certificate.



 



    “Transferor” means NMC Funding Corporation, a
    Delaware corporation, and its successors and permitted assigns.



 



    “Transferred Interest” means, at any time of
    determination, an undivided percentage ownership interest in
    (i) each and every then outstanding Receivable,
    (ii) all Related Security with respect to each such
    Receivable, (iii) all Collections with respect thereto, and
    (iv) other Proceeds of the foregoing, which undivided
    ownership interest shall be equal to the Percentage Factor at
    such time, and only at such time (without regard to prior
    calculations). The Transferred Interest in each Receivable,
    together with Related Security, Collections and Proceeds with
    respect thereto, shall at all times be equal to the Transferred
    Interest in each other Receivable, together with Related
    Security, Collections and Proceeds with respect thereto. To the
    extent that the Transferred Interest shall decrease as a result
    of a recalculation of the Percentage Factor, the Agent, on
    behalf of the applicable Investors, shall be considered to have
    reconveyed to the Transferor (without recourse, representation
    or warranty of any type or kind) an undivided percentage
    ownership interest in each Receivable, together with Related
    Security, Collections and Proceeds with respect thereto, in an
    amount equal to such decrease such that in each case the
    Transferred Interest in each Receivable shall be equal to the
    Transferred Interest in each other Receivable.



 



    “Transferring Affiliate” means a company
    specified on Exhibit Q hereto, as such Schedule may be
    amended from time to time as provided in Section 2.15;
    provided, however, that no such company shall be a
    Transferring Affiliate from and after the occurrence of any
    Event of Bankruptcy by or with respect thereto unless any
    Receivables that arose from sales by such company exist on such
    date, in which case such company shall continue to be a
    Transferring Affiliate until the respective Outstanding Balances
    of all such Receivables shall have been reduced to zero; and
    provided, further, that, solely with respect to
    the Receivables transferred by it to the Seller pursuant to the
    BMA Transfer Agreement, BMA shall constitute a
    “Transferring Affiliate” hereunder.



 



    “Transferring Affiliate Letter” means the
    Amended and Restated Affiliate Letter dated as of the Closing
    Date from the Transferring Affiliates (other than BMA) to the
    Seller, as the same may be amended, restated, supplemented or
    otherwise modified from time to time with the consent of the
    Agent.



 



    “UCC” means, with respect to any state, the
    Uniform Commercial Code as from time to time in effect in such
    state.



 



    “Unrealized Contractual Adjustment Reserve”
    means the reserve maintained by the Collection Agent in
    accordance with its customary practices reflecting the
    difference between the Outstanding Balance of Receivables owing
    by certain commercial insurers and the Collection Agent’s
    estimate of what such commercial insurers will pay in respect of
    such Receivables. It is understood and agreed that Pre-Arranged
    Contractual Adjustments will be reflected in the initial
    Outstanding Balance of the applicable Receivables and
    accordingly will not be included in the Unrealized Contractual
    Adjustment Reserve.



 



    “U.S.” or “United States”
    means the United States of America.



 



    “US Government Obligor” means any Obligor that
    is the federal government of the United States, or any
    subdivision or agency thereof the obligations of which are
    supported by the full faith and credit of the United States, and
    shall include any Obligor referred to in clause (A),(B) or
    (F) of the definition of “Obligor” contained in
    this Section 1.1.



 



    “Voting Stock” shall mean with respect to any
    Person, any capital stock or other equity interests issued by
    such Person which are ordinarily, in the absence of
    contingencies, entitled to vote for the election of directors,
    managing general partners or its equivalent of such Person, or,
    where no board of directors, managing general partners or its
    equivalent exists and where management control of such Person is
    controlled through the ownership of capital stock or other
    equity interests, the right to vote for or assert such
    management control, even though the right to vote for the
    election of directors (or the right to vote for or assert
    management control) has been suspended by the happening of such
    a contingency.



 



    “WestLB” means WestLB AG, New York Branch
    (formerly known as Westdeutsche Landesbank Girozentrale, New
    York Branch), together with its successors and assigns.




    

    18








 






    Section 1.2. Other
    Terms. All accounting terms not specifically defined herein
    shall be construed in accordance with GAAP. All terms used in
    Article 9 of the UCC in the State of New York, and not
    specifically defined herein, are used herein as defined in such
    Article 9.



 



    Section 1.3. Computation
    of Time Periods. Unless otherwise stated in this Agreement,
    in the computation of a period of time from a specified date to
    a later specified date, the word “from” means
    “from and including”, the words “to” and
    “until” each means “to but excluding”, and
    the word “within” means “from and excluding a
    specified date and to and including a later specified date”.



 



    Section 1.4. Amendment
    and Restatement. Subject to the satisfaction of the
    conditions precedent set forth in Section 4.1, this
    Agreement amends and restates the Existing TAA in its entirety.
    This Agreement is not intended to constitute a novation of the
    Existing TAA. Upon the effectiveness of this Agreement (the
    “Effective Date”), each reference to the
    Existing TAA in any other document, instrument or agreement
    executed
    and/or
    delivered in connection therewith shall mean and be a reference
    to this Agreement.



 



    Section 1.5. Funding
    on Effective Date. The parties hereto acknowledge that an
    adjustment to the Net Investment held by the respective Related
    Groups is required to be made on the Effective Date in order to
    ensure that the Net Investment held by the Investors in each
    Related Group is proportional to their respective Related Group
    Limits. Accordingly, on the Effective Date, the Transferor shall
    request such Incremental Transfers, and make such repayments, in
    each case a non-pro rata basis among the Related Groups, such
    that by the close of business on the Effective Date the Net
    Investment held by the Investors in the respective Related
    Groups shall be proportional to their respective Related Group
    Limits.



 




    ARTICLE II
    



 



    PURCHASE AND SETTLEMENTS



 



    Section 2.1. Facility.
    Upon the terms and subject to the conditions herein set forth,
    the Transferor may from time to time prior to the Termination
    Date, at its option, convey, transfer and assign to the Agent,
    on behalf of the Investors, percentage ownership interests in
    the Receivables, together with Related Security, Collections and
    Proceeds with respect thereto. Each such Transfer is made
    without recourse to the Transferor; provided,
    however, that the Transferor shall be liable for all
    representations, warranties, covenants and other agreements made
    by the Transferor pursuant to the terms of this Agreement or any
    other Transaction Document. Each such Transfer shall be made
    among the Related Groups ratably in accordance with their
    respective Related Group Limits. Subject to the terms and
    conditions set forth herein, the Agent shall accept such
    conveyance, transfer and assignment on behalf of the Investors.
    By accepting any conveyance, transfer and assignment hereunder,
    none of the Investors, the Administrative Agents or the Agent
    assumes or shall have any obligations or liability under any of
    the Contracts, all of which shall remain the obligations and
    liabilities of the Transferor and the Seller.



 



    Section 2.2. Transfers;
    Certificates; Eligible Receivables (a) Incremental
    Transfers. Upon the terms and subject to the conditions
    herein set forth the Transferor may, at its option, request that
    an Incremental Transfer be made by the Agent, on behalf of each
    of the applicable Investors. It shall be a condition precedent
    to each Incremental Transfer that (i) after giving effect
    to the payment to the Transferor of the applicable Transfer
    Price, (x) the sum of the Net Investment plus the
    Interest Component of all outstanding Related Commercial Paper,
    would not exceed the Facility Limit, (y) the Percentage
    Factor would not exceed the Maximum Percentage Factor and
    (z) the Net Investment would not exceed the Maximum Net
    Investment; (ii) the representations and warranties set
    forth in Section 3.1 shall be true and correct both
    immediately before and immediately after giving effect to any
    such Incremental Transfer and the payment to the Transferor of
    the Transfer Price related thereto; (iii) an Investor
    Report shall have been delivered prior to such Incremental
    Transfer as required by Section 3.2 hereof and (iv) in
    the case of any Incremental Transfer to be funded by the Bank
    Investors in any Related Group, either (x) such Bank
    Investors shall have previously accepted the assignment by the
    related Conduit Investor of all of its interest in the Affected
    Assets or (y) such Conduit Investor shall have had an
    opportunity to direct that such assignment occur on or prior to
    giving effect to such Incremental Transfer.



 



    The Transferor shall, by notice to the Agent (with a copy to
    each Administrative Agent) given by telecopy, offer to convey,
    transfer and assign to the Agent, on behalf of the Investors,
    undivided percentage ownership interests in the Receivables and
    the other Affected Assets relating thereto at least one
    (1) Business Day prior to the proposed date of any
    Incremental Transfer. Each such notice shall specify,
    (w) with respect to each Related Group, whether such
    request is made to the Agent, on behalf of the Conduit Investor
    in such Related Group or on behalf of the Bank Investors in such
    Related Group (it being understood and agreed that once any
    Transferred Interest hereunder is acquired on behalf of the Bank
    Investors in any Related Group, the Agent, on behalf of Bank
    Investors in such Related Group, shall be required to purchase
    all Transferred Interests held by the Agent on behalf of the




    

    19








 






    Conduit Investor in such Related Group in accordance with
    Section 9.7 and thereafter no additional Incremental
    Transfers shall be acquired on behalf of such Conduit Investor
    hereunder), (x) the desired Transfer Price (which shall be
    at least $1,000,000 or integral multiples of $250,000 in excess
    thereof) or, to the extent that the then available unused
    portion of the Facility Limit is less than such amount, such
    lesser amount equal to such available portion of the Facility
    Limit, (y) the desired date of such Incremental Transfer
    and (z) the desired Tranche Period(s) and allocations
    of the Net Investment of such Incremental Transfer thereto as
    required by Section 2.3. Each Administrative Agent will
    promptly notify the related Conduit Investor or each of the Bank
    Investors in its Related Group, as the case may be, of such
    Administrative Agent’s receipt of any request for an
    Incremental Transfer to be made to the Agent on behalf of such
    Person. To the extent that any such Incremental Transfer is
    requested of the Agent, on behalf of a Conduit Investor, such
    Conduit Investor shall instruct the Agent to accept or reject
    such offer by notice given to the Transferor and the Agent by
    telephone or telecopy by no later than the close of its business
    on the Business Day following its receipt of any such request.
    Each notice of proposed Transfer shall be irrevocable and
    binding on the Transferor and the Transferor shall indemnify
    each Investor against any loss or expense incurred by any
    Investor, either directly or indirectly (including, in the case
    of a Conduit Investor, through the related Liquidity Provider
    Agreement) as a result of any failure for any reason (including
    failure to satisfy any of the conditions precedent in respect
    thereof) by the Transferor to complete such Incremental Transfer
    including, without limitation, any loss (including loss of
    anticipated profits) or expense incurred by any Investor, either
    directly or indirectly (including, in the case of a Conduit
    Investor, pursuant to the related Liquidity Provider Agreement)
    by reason of the liquidation or reemployment of funds acquired
    by any Investor or a related Liquidity Provider (including,
    without limitation, funds obtained by issuing commercial paper
    or promissory notes or obtaining deposits as loans from third
    parties) for any Investor to fund such Incremental Transfer.



 



    The Transferor has previously delivered to the Agent the
    Transfer Certificate in the form of Exhibit F hereto (the
    “Transfer Certificate”). On the date of each
    Incremental Transfer, each Administrative Agent shall send
    written confirmation to the Transferor and to the Agent of the
    Transfer Price, the Tranche Period(s), the Transfer Date
    and the Tranche Rate(s) applicable to the portion of such
    Incremental Transfer made by such Administrative Agent’s
    Related Group. The Agent shall indicate the amount of the
    Incremental Transfer together with the date thereof as well as
    any decrease in the Net Investment on the grid attached to the
    Transfer Certificate. The Transfer Certificate shall evidence
    the Incremental Transfers.



 



    By no later than 3:00 p.m. (New York time) on any Transfer
    Date, each Investor participating in the relevant Transfer shall
    remit its Ratable Share of the aggregate Transfer Price for such
    Transfer either (i) to the account of the related
    Administrative Agent specified therefor from time to time by
    such Administrative Agent by notice to such Investor or
    (ii) if so directed by such Administrative Agent, directly
    to the Transferor. The obligation of each Investor to remit its
    Ratable Share of any such Transfer Price shall be several from
    that of each other Investor, and the failure of any Investor to
    so make such amount available to its related Administrative
    Agent or the Transferor, as applicable, shall not relieve any
    other Investor of its obligation hereunder. If the portion of
    the Transfer Price payable by the Investors in a Related Group
    is remitted to the related Administrative Agent, then, following
    each Incremental Transfer and such Administrative Agent’s
    receipt of funds from the Investors in its Related Group
    participating in such Transfer as aforesaid, such Administrative
    Agent shall remit such portion of the Transfer Price to the
    Transferor’s account at the location indicated in
    Section 10.3 hereof, in immediately available funds. Unless
    an Administrative Agent shall have received notice from any Bank
    Investor in its Related Group participating in an Incremental
    Transfer that such Bank Investor will not make its share of any
    Transfer Price relating to such Incremental Transfer available
    on the applicable Transfer Date therefor, such Administrative
    Agent may (but shall have no obligation to) make such Bank
    Investor’s share of any such Transfer Price available to
    the Transferor in anticipation of the receipt by such
    Administrative Agent of such amount from such Bank Investor. To
    the extent such Bank Investor fails to remit any such amount to
    its Administrative Agent after any such advance by such
    Administrative Agent on such Transfer Date, such Bank Investor,
    on the one hand, and the Transferor, on the other hand, shall be
    required to pay such amount, together with interest thereon at a
    per annum rate equal to the Federal funds rate (as determined in
    accordance with clause (ii) of the definition of “Base
    Rate”), in the case of such Bank Investor, or the otherwise
    applicable Tranche Rate, in the case of the Transferor, to
    such Administrative Agent upon its demand therefor;
    provided that such Administrative Agent shall not be
    permitted to recover more than once for such amount or interest
    thereon. Until such amount shall be repaid, such amount shall be
    deemed to be Net Investment paid by the applicable
    Administrative Agent and such Administrative Agent shall be
    deemed to be the owner of a Transferred Interest hereunder. Upon
    the payment of such amount to such Administrative Agent
    (x) by the Transferor, the amount of the aggregate Net
    Investment shall be reduced by such amount or (y) by such
    Bank Investor, such payment shall constitute such Bank
    Investor’s payment of its share of the applicable Transfer
    Price for such Transfer.




    

    20








 






    (b) Reinvestment Transfers. On each Business Day
    occurring after the initial Incremental Transfer hereunder and
    prior to the Termination Date, the Transferor hereby agrees to
    convey, transfer and assign to the Agent, on behalf of the
    Investors, and in consideration of Transferor’s agreement
    to maintain at all times prior to the Termination Date a Net
    Receivables Balance in an amount at least sufficient to maintain
    the Percentage Factor at an amount not greater than the Maximum
    Percentage Factor, the Agent may, on behalf of each Conduit
    Investor (unless such Conduit Investor has otherwise directed
    the Agent) and shall, on behalf of each of the Bank Investors,
    agree to purchase from the Transferor undivided percentage
    ownership interests in each and every Receivable, together with
    Related Security, Collections and Proceeds with respect thereto,
    to the extent that Collections are available for such Transfer
    in accordance with Section 2.5 hereof, such that after
    giving effect to such Transfer, (i) the amount of the Net
    Investment at the close of business on such Business Day shall
    be equal to the amount of the Net Investment at the close of the
    business on the Business Day immediately preceding such Business
    Day plus the Transfer Price of any Incremental Transfer made on
    such day, if any, and (ii) the Transferred Interest in each
    Receivable, together with Related Security, Collections and
    Proceeds with respect thereto, shall be equal to the Transferred
    Interest in each other Receivable, together with Related
    Security, Collections and Proceeds with respect thereto.



 



    (c) All Transfers. Each Transfer shall constitute a
    purchase by the Agent, on behalf of the Investors, of undivided
    percentage ownership interests in each and every Receivable,
    together with Related Security, Collections and Proceeds with
    respect thereto, then existing, as well as in each and every
    Receivable, together with Related Security, Collections and
    Proceeds with respect thereto, which arises at any time after
    the date of such Transfer. The Agent’s aggregate undivided
    percentage ownership interest in the Receivables, together with
    the Related Security, Collections and Proceeds with respect
    thereto, held on behalf of the Investors, shall equal the
    Percentage Factor in effect from time to time. The Agent shall
    hold the Transferred Interests on behalf of the Investors in
    accordance with each such Investor’s percentage interest in
    the Transferred Interest (determined on the basis of the
    relationship that the portion of the Net Investment funded by
    such Investor bears to the aggregate Net Investment of all
    Investors at such time).



 



    (d) Certificate. The Transferor has issued to the
    Agent the Certificate, in the form of Exhibit M. The
    Certificate remains in full force and effect and is hereby
    ratified and confirmed.



 



    (e) Percentage Factor. The Percentage Factor shall
    be computed by the Collection Agent as of the opening of
    business of the Collection Agent on the effective date of this
    Agreement. Thereafter until the Termination Date, the Collection
    Agent shall recompute the Percentage Factor at the time of each
    Incremental Transfer pursuant to Section 2.2(a) and as of
    the close of business of the Collection Agent on each Business
    Day (other than a day after the Termination Date) and report
    such recomputation to the Agent monthly, in the Investor Report,
    and at such other times as may be requested by the Agent. The
    Percentage Factor shall remain constant from the time as of
    which any such computation or recomputation is made until the
    time as of which the next such recomputation, if any, shall be
    made, notwithstanding any additional Receivables arising, any
    Incremental Transfer made pursuant to Section 2.2(a) or any
    Reinvestment Transfer made pursuant to Sections 2.2(b) and
    2.5 during any period between computations of the Percentage
    Factor. The Percentage Factor, as computed as of the close of
    business on the Business Day immediately preceding the
    Termination Date, shall remain constant at all times on and
    after the Termination Date until the date on which the Net
    Investment has been reduced to zero, and all accrued Discount
    and Servicing Fees have been paid in full and all other
    Aggregate Unpaids have been paid in full at which time the
    Percentage Factor shall be recomputed in accordance with
    Section 2.6.



 



    Section 2.3. Selection
    of Tranche Periods and Tranche Rates.



 



    (a) Prior to the Termination Date; Transferred Interest
    held on behalf of a Conduit Investor. At all times
    hereafter, but prior to the Termination Date with respect to any
    portion of the Net Investment held on behalf of a Conduit
    Investor that is funded through the issuance of Commercial
    Paper, such portion of the Net Investment shall be allocated to
    a CP Tranche Period as set forth in the definition of such
    term. Each Conduit Investor confirms that it is its intention to
    allocate all or substantially all of the Net Investment held on
    behalf of it to CP Tranche Periods, provided that such
    Conduit Investor may determine, from time to time, in its sole
    discretion, that funding such Net Investment through the
    issuance of Commercial Paper is not possible or is not desirable
    for any reason. If, prior to the Termination Date, any portion
    of the Net Investment held on behalf of a Conduit Investor is
    not funded through the issuance of Commercial Paper, then such
    portion of the Net Investment shall be allocated to a BR Tranche
    or a Eurodollar Tranche in accordance with Section 2.3(c)
    in the same manner as if such portion of the Net Investment was
    held by or on behalf of the Bank Investors. In the case of any
    Tranche Period outstanding upon the Termination Date, such
    Tranche Period shall end on such date.



 



    (b) After the Termination Date; Transferred Interest
    Held on behalf of a Conduit Investor. At all times on and
    after the Termination Date, with respect to any portion of the
    Transferred Interest which shall be held by the Agent




    

    21








 






    on behalf of a Conduit Investor, such Conduit Investor or its
    Administrative Agent, as applicable, shall select all
    Tranche Periods and Tranche Rates applicable thereto.



 



    (c) Prior to the Termination Date; Transferred Interest
    Held on Behalf of Bank Investor. At all times with respect
    to any portion of the Transferred Interest held by the Agent on
    behalf of the Bank Investors in any Related Group, but prior to
    the Termination Date, the initial Tranche Period applicable
    to such portion of the Net Investment allocable thereto shall be
    a period of not greater than 7 days and such Tranche shall
    be a BR Tranche. Thereafter, with respect to such portion, and
    with respect to any other portion of the Transferred Interest
    held on behalf of the Bank Investors (or any of them) in any
    Related Group, provided that the Termination Date shall not have
    occurred, the Tranche Period applicable thereto shall be a
    Eurodollar Period and the applicable Tranche shall be a
    Eurodollar Tranche, unless the Transferor has requested and the
    applicable Administrative Agent has approved a
    Tranche Period of less than 7 days, in which case such
    Tranche shall be a BR Tranche. The Transferor shall give the
    Administrative Agent for each Related Group irrevocable notice
    by telephone of the new requested Tranche Period applicable
    to the Bank Investors in such Related Group at least three
    (3) Business Days prior to the expiration of any then
    existing Tranche Period applicable to such Related Group
    and, if the Transferor shall fail to provide such notice (or, if
    the requested Tranche Period is less than 7 days, the
    Administrative Agent does not consent to such request), the
    applicable Administrative Agent on behalf of the Bank Investors
    in such Related Group may, in its sole discretion, select the
    new Tranche Period in respect of the applicable Tranche. In
    the case of any Tranche Period outstanding upon the
    occurrence of the Termination Date, such Tranche Period
    shall end on the date of such occurrence.



 



    (d) After the Termination Date; Transferred Interest
    Held on behalf of Bank Investor. At all times on and after
    the Termination Date, with respect to any portion of the
    Transferred Interest held by the Agent on behalf of the Bank
    Investors in any Related Group, the Administrative Agent for
    such Related Group shall select all Tranche Periods and
    Tranche Rates applicable thereto.



 



    (e) Eurodollar Rate Protection; Illegality.
    (i) If the Administrative Agent for any Related Group is
    unable to obtain on a timely basis the information necessary to
    determine the LIBOR Rate for any proposed Eurodollar Tranche,
    then



 



    (A) such Administrative Agent shall forthwith notify the
    Investors in such Related Group, as applicable, and the
    Transferor that the Eurodollar Rate cannot be determined for
    such Eurodollar Tranche, and



 



    (B) while such circumstances exist, neither such
    Administrative Agent nor any of the Investors in such Related
    Group shall allocate the Net Investment of any additional
    Transferred Interests purchased during such period or reallocate
    the Net Investment allocated to any then existing Tranche ending
    during such period, to a Eurodollar Tranche.



 



    (ii) If, with respect to any outstanding Eurodollar
    Tranche, any Investor on behalf of which the Agent holds any
    Transferred Interest therein notifies its Administrative Agent
    that it is unable to obtain matching deposits in the London
    interbank market to fund its purchase or maintenance of such
    Transferred Interest or that the Eurodollar Rate applicable to
    such Transferred Interest will not adequately reflect the cost
    to such Investor of funding or maintaining its respective
    Transferred Interest for such Tranche Period then such
    Administrative Agent shall forthwith so notify the Transferor,
    whereupon neither such Administrative Agent nor the Investors in
    the Related Group shall, while such circumstances exist,
    allocate any Net Investment of any additional Transferred
    Interest purchased during such period or reallocate the Net
    Investment allocated to any Tranche Period ending during
    such period, to a Eurodollar Tranche and instead such
    Transferred Interest shall be purchased as, or such Net
    Investment shall be allocated to, a BR Tranche (notwithstanding
    any election made by the Transferor pursuant to
    Section 2.3(c) or otherwise).



 



    (iii) Notwithstanding any other provision of this
    Agreement, if any Investor shall notify its Administrative Agent
    that such Investor has determined (or has been notified by any
    Liquidity Provider) that the introduction of or any change in or
    in the interpretation of any law or regulation makes it unlawful
    (either for such Investor or such Liquidity Provider, as
    applicable), or any central bank or other governmental authority
    asserts that it is unlawful, for such Investor or such Liquidity
    Provider, as applicable, to fund the purchases or maintenance of
    Transferred Interests at the Eurodollar Rate, then (x) as
    of the effective date of such notice from such Investor to its
    Administrative Agent, the obligation or ability of the such
    Investor to fund its purchase or maintenance of Transferred
    Interests at the Eurodollar Rate shall be suspended until such
    Investor notifies its Administrative Agent that the
    circumstances causing such suspension no longer exist and
    (y) the Net Investment of each Eurodollar Tranche in which
    such Investor owns an interest shall either (1) if such
    Investor may lawfully continue to maintain such Transferred
    Interest at the Eurodollar Rate until the last day of the
    applicable Tranche Period, be reallocated on the last day
    of such Tranche Period to another Tranche Period in
    respect of which the Net Investment allocated




    

    22








 






    thereto accrues Discount at a Tranche Rate other than the
    Eurodollar Rate or (2) if such Investor shall determine
    that it may not lawfully continue to maintain such Transferred
    Interest at the Eurodollar Rate until the end of the applicable
    Tranche Period, such Investor’s share of the Net
    Investment allocated to such Eurodollar Tranche shall be deemed
    to accrue Discount at the Base Rate from the effective date of
    such notice until the end of such Tranche Period.



 



    (f) Separate Tranches for Related Groups. In no
    event shall portions of the Net Investment held by Investors
    from different Related Groups be allocated to the same Tranche.



 



    Section 2.4. Discount,
    Fees and Other Costs and Expenses. Notwithstanding any
    limitation on recourse contained herein, the Transferor shall
    pay, as and when due in accordance with this Agreement, all fees
    hereunder, Discount (including Discount due any Conduit Investor
    or any Bank Investor), all amounts payable pursuant to
    Article VIII hereof, if any, and the Servicing Fees. On the
    last day of each Tranche Period (or, in the case of a CP
    Tranche Period, by no later than the second Business Day
    following the last day of such CP Tranche Period), the
    Transferor shall pay to each Administrative Agent, on behalf of
    the applicable Investors in its Related Group, an amount equal
    to the accrued and unpaid Discount for such Tranche Period
    together with, in the event the Transferred Interest is held on
    behalf of a Conduit Investor, an amount equal to the discount
    accrued on the Commercial Paper of such Conduit Investor to the
    extent such Commercial Paper was issued in order to fund the
    Transferred Interest in an amount in excess of the Transfer
    Price of an Incremental Transfer. Discount shall accrue with
    respect to each Tranche on each day occurring during the
    Tranche Period related thereto. Nothing in this Agreement
    shall limit in any way the obligations of the Transferor to pay
    the amounts set forth in this Section 2.4.



 



    Section 2.5. Non-Liquidation
    Settlement and Reinvestment Procedures. On each day after
    the date of any Incremental Transfer but prior to the
    Termination Date and provided that no Potential Termination
    Event shall have occurred and be continuing, the Collection
    Agent shall, out of Collections received on or prior to such day
    and not previously applied or accounted for: (i) set aside
    and hold in trust for the Agent, on behalf of the applicable
    Investors (or deposit into the Collection Account if so required
    pursuant to Section 2.12 hereof), an amount equal to all
    Discount and the Servicing Fee accrued through such day and not
    so previously set aside or paid and (ii) apply the balance
    of such Collections remaining after application of Collections
    as provided in clause (i) of this Section 2.5 hereof
    to the Transferor, for the benefit of the Agent, on behalf of
    the applicable Investors, to the purchase of additional
    undivided percentage interests in each Receivable pursuant to
    Section 2.2(b) hereof. Any Collections so set aside as
    described in clause (i) above shall be allocated, among the
    Related Groups ratably in proportion to the accrued Discount and
    Servicing Fee with respect to the Investors in each such Related
    Group. On the last day of each Tranche Period applicable to
    any portion of the Net Investment held by one or more Investors
    in a Related Group (or, in the case of a CP Tranche Period,
    by no later than the second Business Day following the last day
    of such CP Tranche Period), from the amounts set aside as
    described in clause (i) of the first sentence of this
    Section 2.5 hereof that have been allocated to the
    Investors in such Related Group, the Collection Agent shall
    deposit to the applicable Administrative Agent’s account,
    for the benefit of such Investors, an amount equal to the
    accrued and unpaid Discount for such Tranche Period and
    shall deposit to its own account an amount equal to the accrued
    and unpaid Servicing Fee for such Tranche Period. The
    applicable Administrative Agent, upon its receipt of such
    amounts in such Administrative Agent’s account, shall
    distribute such amounts to the applicable Investors entitled
    thereto as set forth above; provided that if such
    Administrative Agent shall have insufficient funds to pay all of
    the above amounts in full on any such date, such Administrative
    Agent shall pay such amounts ratably (based on the amounts owing
    to each such Investor) to all such Investors entitled to payment
    thereof. In addition, the Collection Agent shall remit to the
    Transferor at the end of each Tranche Period, such portion
    of Collections not allocated to the Agent, on behalf of the
    applicable Investors.



 



    Section 2.6. Liquidation
    Settlement Procedures. (a) If at any time on or prior
    to the Termination Date, the Percentage Factor is greater than
    the Maximum Percentage Factor, then the Transferor shall
    immediately pay to the Administrative Agents for the Related
    Groups, for the benefit of the applicable Investors in their
    respective Related Groups, from previously received Collections,
    an aggregate amount equal to the amount such that, when applied
    in reduction of the Net Investment, will result in the
    Percentage Factor being less than or equal to the Maximum
    Percentage Factor. Such aggregate amount shall be paid to such
    Administrative Agents ratably in accordance with the portion of
    the Net Investment held by their respective Related Groups. Any
    amount so paid to an Administrative Agent for a Related Group
    shall be applied to the reduction of the Net Investment of
    Tranche Periods applicable to such Related Group selected
    by such Administrative Agent.



 



    (b) On the Termination Date and on each day thereafter, and
    on each day on which a Termination Event or a Potential
    Termination Event has occurred and is continuing, the Collection
    Agent shall set aside and hold in trust for the Agent, on behalf
    of the Investors (or deposit into the Collection Account if so
    required pursuant to Section 2.12 hereof) all Collections
    received on such day. The Collections so set aside shall be
    allocated, among the Related




    

    23








 






    Groups ratably in accordance with the portion of the Net
    Investment held by each such Related Group. On the Termination
    Date or the day on which a Termination Event or Potential
    Termination Event has occurred and is continuing, the Collection
    Agent shall deposit to each Administrative Agent’s account,
    for the benefit of the applicable Investors, any amounts set
    aside pursuant to Section 2.5 above which have been
    allocated to such Administrative Agent’s Related Group as
    described in Section 2.5. On the last day of each
    Tranche Period to occur on or after the Termination Date,
    during the continuance of a Termination Event or Potential
    Termination Event, the Collection Agent shall deposit to each
    Administrative Agent’s account to the extent not already so
    deposited, for the benefit of the applicable Investors in its
    Related Group, the amounts so set aside that have been allocated
    to the Investors in such Related Group pursuant to this
    Section 2.6, but not to exceed the sum of (i) the
    accrued Discount for such Tranche Period, (ii) the
    portion of the Net Investment allocated to such
    Tranche Period, and (iii) all other Aggregate Unpaids.
    On such day, the Collection Agent shall deposit to its account,
    from the amounts so allocated to the Investors in such Related
    Group pursuant to the preceding sentence which remain after
    payment in full of the aforementioned amounts, the accrued
    Servicing Fee for such Tranche Period. If with respect to
    any Tranche Period there shall be insufficient funds on
    deposit for the Collection Agent to distribute funds in payment
    in full of the aforementioned amounts, the Collection Agent
    shall distribute funds first, in payment of the accrued
    Discount for such Tranche Period, second, if the
    Transferor, the Seller or any Affiliate of the Transferor or the
    Seller is not then the Collection Agent, to the Collection
    Agent’s account, in payment of the Servicing Fee payable to
    the Collection Agent to the extent allocable to such
    Tranche Period, third, in reduction of the Net
    Investment allocated to such Tranche Period fourth,
    in payment of all fees payable by the Transferor hereunder to
    the members of the relevant Related Group, fifth, in
    payment of all other Aggregate Unpaids owing to the members of
    such Related Group and sixth, if the Transferor, the
    Seller or any Affiliate of the Transferor or the Seller is the
    Collection Agent, to its account as Collection Agent, in payment
    of the Servicing Fee payable to such Person as Collection Agent
    to the extent such Servicing Fee is allocable to such
    Tranche Period. The applicable Administrative Agent, upon
    its receipt of such amounts in such Administrative Agent’s
    account, shall distribute such amounts to the Investors in its
    Related Group entitled thereto as set forth above;
    provided that if such Administrative Agent shall have
    insufficient funds to pay all of the above amounts in full on
    any such date, such Administrative Agent shall pay such amounts
    in the order of priority set forth above and, with respect to
    any such category above for which such Administrative Agent
    shall have insufficient funds to pay all amounts owing on such
    date, ratably (based on the amounts in such categories owing to
    such Persons) among all such Persons entitled to payment
    thereof. For purposes of this Section 2.6, the Agent shall
    be deemed to be a member of the Related Group that includes
    Paradigm.



 



    (c) Following the later to occur of the Termination Date
    and the date on which the Net Investment has been reduced to
    zero, all accrued Discount and Servicing Fees have been paid in
    full and all other Aggregate Unpaids have been paid in full,
    (i) the Collection Agent shall recompute the Percentage
    Factor, (ii) the Agent, on behalf of the Investors, shall
    be considered to have reconveyed to the Transferor all of the
    right, title and interest in and to the Affected Assets
    (including the Transferred Interest) without recourse,
    representation or warranty of any type or kind, (iii) the
    Collection Agent shall pay to the Transferor any remaining
    Collections set aside and held by the Collection Agent for the
    Investors pursuant to this Section 2.6 and (iv) the
    Agent, on behalf of the Investors, shall execute and deliver to
    the Transferor, at the Transferor’s expense, such documents
    or instruments as are necessary to terminate the Agent’s
    interests in the Affected Assets. Any such documents shall be
    prepared by or on behalf of the Transferor.



 



    Section 2.7. Fees.
    Notwithstanding any limitation on recourse contained in this
    Agreement, on the last day of each month the Transferor shall
    pay the following non-refundable fees: (i) to each Conduit
    Investor, solely for its own account, the Program Fee with
    respect to such Conduit Investor, (ii) to each Conduit
    Investor, the Facility Fee with respect to the applicable
    Related Group (for distribution to the Bank Investors in such
    Related Group) and (iii) to the Agent the Administration
    Fee.



 



    SECTION 2.8. Protection of Ownership Interest of
    the Investors; Special Accounts, Intermediate Concentration
    Account and Concentration Account. (a) The Transferor
    agrees that it will, and will cause the Seller to, from time to
    time, at its expense, promptly execute and deliver all
    instruments and documents and take all actions as may be
    necessary or as the Agent or any Administrative Agent may
    reasonably request in order to perfect or protect the
    Transferred Interest or to enable the Agent, the Administrative
    Agents or the Investors to exercise or enforce any of their
    respective rights hereunder. Without limiting the foregoing, the
    Transferor will, and will cause the Seller to, upon the request
    of the Agent, any Administrative Agent or any of the Investors,
    in order to accurately reflect this purchase and sale
    transaction, execute and file such financing or continuation
    statements or amendments thereto or assignments thereof as
    permitted pursuant to Section 9.7 hereof as may be
    requested by the Agent, any Administrative Agent or any of the
    Investors and (y) mark its respective master data
    processing records and other documents with a legend describing
    the conveyance to the Transferor of the Receivables (in the case
    of the Seller) and to the Agent, for the benefit of the
    Investors, of the Transferred Interest. The Transferor shall,
    and will cause the




    

    24








 






    Seller to, upon request of the Agent, any Administrative Agent
    or any of the Investors obtain such additional search reports as
    the Agent, any Administrative Agent or any of the Investors
    shall request. To the fullest extent permitted by applicable
    law, the Agent shall be authorized to sign and file financing
    statements , continuation statements and amendments thereto
    relating to the Receivables, Related Security and Collections
    and assignments thereof to the Agent or any successor or
    permitted assign of the Agent without the Transferor’s or
    the Seller’s signature. Carbon, photographic or other
    reproduction of this Agreement or any financing statement shall
    be sufficient as a financing statement. The Transferor shall
    not, and shall not permit the Seller or any Transferring
    Affiliate to, change its respective name, identity or corporate
    structure nor relocate its respective chief executive office or
    jurisdiction of organization or any office where Records are
    kept unless it shall have: (i) given the Agent and each
    Administrative Agent at least thirty (30) days prior notice
    thereof and (ii) prepared at Transferor’s expense and
    delivered to the Agent all financing statements, instruments and
    other documents necessary to preserve and protect the
    Transferred Interest or requested by the Agent or any
    Administrative Agent in connection with such change or
    relocation; provided that the jurisdiction of
    organization for the Transferor, the Seller and each
    Transferring Affiliate shall at all times be a State within the
    United States. Any filings under the UCC or otherwise that are
    occasioned by such change in name or location shall be made at
    the expense of Transferor.



 



    (b) The Agent is hereby authorized at any time to date, and
    to deliver (i) to the Concentration Account Bank, the
    Concentration Account Notice and (ii) to each Intermediate
    Concentration Account Bank an Intermediate Concentration Account
    Notice. The Transferor hereby, when the Agent shall deliver the
    Concentration Account Notice to the Concentration Account Bank
    or an Intermediate Concentration Account Notice to any
    Intermediate Concentration Account Bank, transfers to the Agent
    the exclusive ownership and control of the Concentration Account
    or the applicable Intermediate Concentration Account, as the
    case may be, and shall take any further action that the Agent
    may reasonably request to effect such transfer. In case any
    authorized signatory of the Transferor whose signature shall
    appear on the Concentration Account Agreement or any
    Intermediate Concentration Account Agreement shall cease to have
    such authority before the delivery of the Concentration Account
    Notice or Intermediate Concentration Account Notice, as the case
    may be, such signature shall nevertheless be valid and
    sufficient for all purposes as if such authority had remained in
    force at the time of such delivery. The Agent shall, at the time
    it delivers the Concentration Account Notice to the
    Concentration Account Bank or an Intermediate Concentration
    Account Notice to any Intermediate Concentration Account Bank,
    provide a copy thereof to the Transferor; provided that
    the failure on the part of the Agent to provide such notice to
    the Transferor shall not affect the validity or effectiveness of
    the Concentration Account Notice or Intermediate Concentration
    Account Notice, as applicable, or impair any rights of the
    Agent, any Administrative Agent or any of the Investors
    hereunder.



 



    (c) In addition and without limiting the authority of the
    Agent set forth in subsection (b) above, but subject to
    subsection (d) below, the Transferor shall (i) cause
    each Originating Entity to instruct any or all of the Special
    Account Banks (which instructions shall be maintained in full
    force and effect at all times) to transfer directly to the
    Concentration Account or to an Intermediate Concentration
    Account all Collections from time to time on deposit in the
    applicable Special Accounts on a daily basis in accordance with
    the terms set forth in the applicable Special Account Letter and
    (ii) instruct each Intermediate Concentration Account Bank
    (which instructions shall be maintained in full force and effect
    at all times) to transfer directly to the Concentration Account
    all Collections from time to time on deposit in the applicable
    Intermediate Concentration Accounts on a daily basis in
    accordance with the terms set forth in the applicable
    Intermediate Concentration Account Agreement. In the event the
    Transferor shall at any time determine, for any of the reasons
    described in subsection (d) below, that the Transferor or
    any Originating Entity shall be unable to comply fully with the
    requirements of this subsection (c), the Transferor shall
    promptly so advise the Agent and each Administrative Agent, and
    the Transferor, the Agent and each Administrative Agent shall
    commence discussions with a view toward implementing an
    alternative arrangement therefor satisfactory to the Agent and
    each Administrative Agent.



 



    (d) Anything to the contrary herein notwithstanding, all
    Medicare or Medicaid payments which are made by an Obligor with
    respect to any Receivables shall be collected from such Obligor
    only by (i) the applicable Originating Entity or
    (ii) an agent of such Originating Entity, except to
    the extent that an Obligor may be required to submit any such
    payments directly to a Person other than such Originating Entity
    pursuant to a court-ordered assignment which is valid, binding
    and enforceable under applicable federal and state Medicare
    Regulations and Medicaid Regulations; and neither this Agreement
    nor any other Transaction Document shall be construed to permit
    any other Person, in violation of applicable Medicare
    Regulations or Medicaid Regulations to collect or receive, or to
    be entitled to collect or receive, any such payments prior to
    such Originating Entity’s or such agent’s receipt
    thereof.



 



    Section 2.9. Deemed
    Collections; Application of Payments. (a) If on any day
    the Outstanding Balance of a Receivable is either
    (x) reduced as a result of any defective, rejected or
    returned merchandise or services, any discount, credit,
    Contractual Adjustment, rebate, dispute, warranty claim,
    repossessed or returned goods,




    

    25








 






    chargeback, allowance, any billing adjustment or other
    adjustment, or (y) reduced or canceled as a result of a
    setoff or offset in respect of any claim by any Person (whether
    such claim arises out of the same or a related transaction or an
    unrelated transaction), the Transferor shall be deemed to have
    received on such day a Collection of such Receivable in the
    amount of such reduction or cancellation and the Transferor
    shall pay to the Collection Agent an amount equal to such
    reduction or cancellation and such amount shall be applied by
    the Collection Agent as a Collection in accordance with
    Section 2.5 or 2.6 hereof, as applicable. The Net
    Investment shall be reduced by the amount of such payment
    applied to the reduction of the Net Investment and actually
    received by the applicable Administrative Agent.



 



    (b) If on any day it is determined that (i) any of the
    representations or warranties in Article III was untrue
    with respect to a Receivable as of the date such representation
    or warranty was made or (ii) any of the representations or
    warranties set forth in Section 3.1(d) or
    Section 3.1(j) becomes untrue with respect to a Receivable
    (whether on or after the date of any transfer of an interest
    therein to the Agent or any of the Investors as contemplated
    hereunder) or (iii) a Receivable that was formerly treated
    as or represented to be an Eligible Receivable does not satisfy
    the requirements in paragraph (xi) of the definition of
    Eligible Receivable, the Transferor shall be deemed to have
    received on such day a Collection on such Receivable in full and
    the Transferor shall on such day pay to the Collection Agent an
    amount equal to the Outstanding Balance of such Receivable and
    such amount shall be allocated and applied by the Collection
    Agent as a Collection allocable to the Transferred Interest in
    accordance with Section 2.5 or 2.6 hereof, as applicable.
    The Net Investment shall be reduced by the amount of such
    payment applied to the reduction of the Net Investment and
    actually received by the applicable Administrative Agent.



 



    (c) Any payment by an Obligor in respect of any
    indebtedness owed by it to the Transferor or the Seller shall,
    except as otherwise specified by such Obligor or otherwise
    required by contract or law and unless otherwise instructed by
    each Administrative Agent, be applied as a Collection of any
    Receivable of such Obligor included in the Transferred Interest
    (starting with the oldest such Receivable) or the extent of any
    amounts then due and payable thereunder before being applied to
    any other receivable or other indebtedness of such Obligor.



 



    Section 2.10. Payments
    and Computations, Etc. All amounts to be paid or deposited
    by the Transferor or the Collection Agent hereunder shall be
    paid or deposited in accordance with the terms hereof no later
    than 12 p.m. (New York City time) on the day when due in
    immediately available funds; if such amounts are payable to the
    Agent or any Administrative Agent (whether on behalf of any of
    the Investors or otherwise) they shall be paid or deposited in
    the applicable account indicated in Section 10.3 hereof,
    until otherwise notified by the Agent or such Administrative
    Agent, as the case may be. The Transferor shall, to the extent
    permitted by law, pay to each Administrative Agent, for the
    benefit of itself and the Investors in its Related Group, upon
    demand, interest on all amounts owing to such Administrative
    Agent or such Investors not paid or deposited when due hereunder
    at a rate equal to 2% per annum plus the Base Rate. All
    computations of Discount, interest and all per annum fees
    hereunder shall be made on the basis of a year of 360 days
    for the actual number of days (including the first but excluding
    the last day) elapsed. Any computations by an Administrative
    Agent of amounts payable by the Transferor hereunder to such
    Administrative Agent or any Investor in its Related Group shall
    be binding upon all parties hereto absent manifest error.



 



    Section 2.11. Reports.
    On or prior to the last Business Day of each month, the
    Collection Agent shall prepare and forward to the Agent and each
    Administrative Agent (i) an Investor Report as of the end
    of the last day of the immediately preceding month, (ii) a
    listing by Primary Payor of all Receivables together with an
    analysis as to the aging of such Receivables as of such last
    day, but only to the extent the Receivable Systems of the
    Collection Agent are able to generate such information,
    (iii) written confirmation that all payments in cash, by
    way of credits to intercompany accounts (in the case of
    purchases made by the Seller from any Transferring Affiliate) or
    by way of application of proceeds of advances made under the
    Subordinated Note (in the case of purchases made by the
    Transferor from the Seller) have been made by the Transferor
    under the Receivables Purchase Agreement or by the Seller under
    the Transferring Affiliate Letter or the BMA Transfer Agreement,
    as applicable, in accordance with the respective terms of such
    agreement, and (iv) such other information as the Agent or
    any Administrative Agent may reasonably request.



 



    Section 2.12. Collection
    Account. The Collection Agent has established and shall
    maintain with the Agent a segregated account (the
    “Collection Account”), bearing a designation
    clearly indicating that the funds deposited therein are held for
    the benefit of the Agent, on behalf of the Investors. During the
    continuance of a Collection Agent Default or a Termination Event
    or a Potential Termination Event, the Collection Agent shall
    remit daily within forty-eight hours of receipt to the
    Collection Account all Collections received with respect to any
    Receivables. Funds on deposit in the Collection Account (other
    than investment earnings) shall be invested by the Agent in
    Eligible Investments that will mature so that such funds will be
    available prior to the last day of each successive
    Tranche Period following such investment. On the last day
    of each Tranche Period, such funds on deposit, together




    

    26








 






    with all interest and earnings (net of losses and investment
    expenses) thereon, in the Collection Account shall be made
    available for application in accordance with the terms of
    Section 2.6 or otherwise for application toward payments
    required to be made hereunder (including Discount) by the
    Transferor. On the date on which the Net Investment is zero, all
    accrued Discount and Servicing Fees have been paid in full and
    all other Aggregate Unpaids have been paid in full, any funds
    remaining on deposit in the Collection Account shall be paid to
    the Transferor.



 



    Section 2.13. Sharing
    of Payments, Etc. If any Investor (for purposes of this
    Section only, being a “NPRBI”) shall obtain any
    payment (whether voluntary, involuntary, through the exercise of
    any right of setoff, or otherwise) on account of Transferred
    Interest owned by it (other than pursuant to Section 2.7,
    or Article VIII and other than as a result of the
    differences in the timing of the applications of Collections
    pursuant to Section 2.5 or 2.6) in excess of its ratable
    share of payments on account of Transferred Interest obtained by
    the Investors entitled thereto, such NPRBI shall forthwith
    purchase from the other Investors entitled to a share of such
    amount participations in the Transferred Interests owned by such
    other Investors the excess payment ratably with each such other
    Investor entitled thereto; provided, however, that
    if all or any portion of such excess payment is thereafter
    recovered from such NPRBI, such purchase from each such other
    Investor shall be rescinded and each such other Investor shall
    repay to the NPRBI the purchase price paid by such NPRBI for
    such participation to the extent of such recovery, together with
    an amount equal to such other Investor’s ratable share
    (according to the proportion of (a) the amount of such
    other Investor’s required payment to (b) the total
    amount so recovered from the NPRBI) of any interest or other
    amount paid or payable by the NPRBI in respect of the total
    amount so recovered.



 



    Section 2.14. Right
    of Setoff. Without in any way limiting the provisions of
    Section 2.13, each Investor is hereby authorized (in
    addition to any other rights it may have) at any time after the
    occurrence of the Termination Date or during the continuance of
    a Potential Termination Event to setoff, appropriate and apply
    (without presentment, demand, protest or other notice which are
    hereby expressly waived) any deposits (other than any deposits
    then being held in any Special Account maintained by an Investor
    as to which deposits the Investors waive their rights of set-off
    in respect of the Aggregate Unpaid) and any other indebtedness
    held or owing by any Investor to, or for the account of, the
    Transferor against the amount of the Aggregate Unpaids owing by
    the Transferor to such Investor or to the Agent or any
    Administrative Agent on behalf of such Investor (even if
    contingent or unmatured).



 



    Section 2.15. Additional
    Transferring Affiliates. (a) If (i) one or more
    direct or indirect wholly-owned subsidiaries of FMCH (other than
    the Transferring Affiliates) now owned or hereafter acquired, is
    primarily engaged in the same business as is conducted on the
    date hereof by the Originating Entities or (ii) FMCH
    reorganizes its corporate structure such that facilities
    generating Receivables on the date hereof (or acquired as
    contemplated by clause (i)) are owned by one or more additional
    wholly-owned subsidiaries of FMCH, any or all of the
    wholly-owned subsidiaries referred to in clauses (i) and
    (ii) may, with the prior written consent of each
    Administrative Agent (which consent shall not be unreasonably
    withheld or delayed), become Transferring Affiliates under this
    Agreement upon delivery to each Administrative Agent of
    (x) counterparts of the Transferring Affiliate Letter duly
    executed by such subsidiary or subsidiaries and (y) the
    documents relating to such subsidiary or subsidiaries of the
    kind delivered by or on behalf of the Transferring Affiliates
    (other than BMA) pursuant to Section 4.1, together with
    such other instruments, documents and agreements as any
    Administrative Agent may reasonably request in connection
    therewith.



 



    (b) Upon the addition of any wholly-owned subsidiary of
    FMCH as a Transferring Affiliate pursuant to subsection (a)
    above, the provisions of this Agreement, including
    Exhibit Q, shall, without further act or documentation, be
    deemed amended to apply to such subsidiary to the same extent as
    the same apply to the Transferring Affiliates as of the date
    hereof and the term “Transferring Affiliate” in this
    Agreement shall mean and refer to such subsidiary as well as
    each then existing Transferring Affiliate.



 



    (c) The Transferor may terminate RenaLab, Inc. as a
    Transferring Affiliate at any time prior to March 31, 2007
    so long as (i) at the time of such termination, the
    aggregate Outstanding Balance of the Receivables originated by
    RenaLab, Inc. does not exceed $15,000,000 and (ii) all of
    the equity interests in RenaLab, Inc. have been (or will be, at
    the time of termination) sold to a third party that is not an
    Affiliate of the Transferor. Any such termination shall be made
    upon written notice to the Administrative Agents from the
    Collection Agent and the Transferor (i) stating that
    Renalab, Inc. has been terminated as a Transferring Affiliate
    and (ii) indicating the effective date of such termination.
    On the effective date of such termination Exhibit Q, shall,
    without further act or documentation, be deemed amended to
    remove Renalab, Inc. from the list of Transferring Affiliates
    set forth therein; provided that Renalab, Inc. shall
    continue to be a “Transferring Affiliate” with respect
    to any Receivables that arose prior to such effective date.



 



    Section 2.16. Optional
    Repurchase of Transferred Interest. The Transferor may at
    any time at its option elect to repurchase the Transferred
    Interest on not less than sixty (60) days’ prior
    written notice to each Administrative




    

    27








 






    Agent (a “Repurchase Notice”) specifying the
    date on which such repurchase shall occur (the
    “Repurchase Date”) and that such Repurchase
    Date shall be the Termination Date hereunder. By no later than
    11:00 a.m. (New York time) on the Repurchase Date, the
    Transferor shall pay to each Administrative Agent, for the
    account of the members of its Related Group, an amount (the
    “Repurchase Price”) equal to the sum of
    (i) the portion of the Net Investment funded by the
    Investors in such Related Group, (ii) all Discount accrued
    and to accrue thereon through the last day of the applicable
    Tranche Period(s) to which such Net Investment has been
    allocated and (iii) all other Aggregate Unpaids owing to
    the members of such Related Group or any related Indemnified
    Party under the Transaction Documents accrued through the date
    of such payment. The Repurchase Price payable with respect to
    any Related Group shall be calculated by the related
    Administrative Agent and notified to the Transferor, which
    calculation shall be conclusive and binding absent manifest
    error. By delivering a Repurchase Notice the Transferor shall be
    deemed to have designated the Repurchase Date as the
    “Termination Date” as contemplated by clause (i)
    of the definition of such term.



 




    ARTICLE III

    



 




    REPRESENTATIONS
    AND WARRANTIES
    



 



    Section 3.1. Representations
    and Warranties of the Transferor. The Transferor
    represents and warrants to the Agent, each Administrative Agent
    and each Investor that:



 



    (a) Corporate Existence and Power. The Transferor is
    a corporation duly organized, validly existing and in good
    standing under the laws of its jurisdiction of incorporation and
    has all corporate power and all material governmental licenses,
    authorizations, consents and approvals required to carry on its
    business in each jurisdiction in which its business is now
    conducted. The Transferor is duly qualified to do business in,
    and is in good standing in, every other jurisdiction in which
    the nature of its business requires it to be so qualified,
    except where the failure to be so qualified or in good standing
    would not have a Material Adverse Effect.



 



    (b) Corporate and Governmental Authorization;
    Contravention. The execution, delivery and performance by
    the Transferor of this Agreement, the Receivables Purchase
    Agreement, the Fee Letters, the Certificates, the Transfer
    Certificates and the other Transaction Documents to which the
    Transferor is a party are within the Transferor’s corporate
    powers, have been duly authorized by all necessary corporate
    action, require no action by or in respect of, or filing with,
    any Official Body or official thereof (except as contemplated by
    Section 2.8 hereof), and do not contravene, or constitute a
    default under, any provision of applicable law, rule or
    regulation (including, without limitation, any CHAMPUS/VA
    Regulation, any Medicaid Regulation or any Medicare Regulation)
    or of the Certificate of Incorporation or Bylaws of the
    Transferor or of any agreement, judgment, injunction, order,
    writ, decree or other instrument binding upon the Transferor or
    result in the creation or imposition of any Adverse Claim on the
    assets of the Transferor or any of its Subsidiaries (except as
    contemplated by Section 2.8 hereof).



 



    (c) Binding Effect. Each of this Agreement, the
    Receivables Purchase Agreement, the Fee Letters, the
    Certificates and the other Transaction Documents to which the
    Transferor is a party constitutes and the Transfer Certificate
    upon payment of the Transfer Price set forth therein will
    constitute the legal, valid and binding obligation of the
    Transferor, enforceable against it in accordance with its terms,
    subject to applicable bankruptcy, insolvency, moratorium or
    other similar laws affecting the rights of creditors generally.



 



    (d) Perfection. Immediately preceding each Transfer
    hereunder, the Transferor shall be the owner of all of the
    Receivables, free and clear of all Adverse Claims. On or prior
    to each Transfer and each recomputation of the Transferred
    Interest, all financing statements and other documents required
    to be recorded or filed, or notices to Obligors to be given, in
    order to perfect and protect the Agent’s Transferred
    Interest against all creditors of and purchasers from the
    Transferor and the Seller will have been duly filed in each
    filing office necessary for such purpose and all filing fees and
    taxes, if any, payable in connection with such filings shall
    have been paid in full.



 



    (e) Accuracy of Information. All information
    heretofore furnished by the Transferor (including without
    limitation, the Investor Reports, any reports delivered pursuant
    to Section 2.11 hereof and the Transferor’s financial
    statements) to any Investor, the Agent or any Administrative
    Agent for purposes of or in connection with this Agreement or
    any transaction contemplated hereby is, and all such information
    hereafter furnished by the Transferor to the any Investor, the
    Agent or any Administrative Agent will be, true and accurate in
    every material respect, on the date such information is stated
    or certified.



 



    (f) Tax Status. The Transferor has filed all tax
    returns (federal, state and local) required to be filed and has
    paid or made adequate provision for the payment of all taxes,
    assessments and other governmental charges.




    

    28








 






    (g) Action, Suits. Except as set forth in
    Exhibit H hereof, there are no actions, suits or
    proceedings pending, or to the knowledge of the Transferor
    threatened, in or before any court, arbitrator or other body,
    against or affecting (i) the Transferor or any of its
    properties or (ii) any Affiliate of the Transferor or its
    respective properties, which may, in the case of proceedings
    against or affecting any such Affiliate, individually or in the
    aggregate, have a Material Adverse Effect.



 



    (h) Use of Proceeds. No proceeds of any Transfer
    will be used by the Transferor to acquire any security in any
    transaction which is subject to Section 13 or 14 of the
    Securities Exchange Act of 1934, as amended.



 



    (i) Place of Business. The principal place of
    business and chief executive office of the Transferor are
    located at the address of the Transferor indicated in
    Section 10.3 hereof and the offices where the Transferor
    keeps substantially all its Records, are located at the
    address(es) described on Exhibit I or such other locations
    notified to each Administrative Agent in accordance with
    Section 2.8 hereof in jurisdictions where all action
    required by Section 2.8 hereof has been taken and
    completed. The principal place of business and chief executive
    office of each Originating Entity is located at the address of
    such Originating Entity indicated in Exhibit I hereof and
    the offices where the each Originating Entity keeps
    substantially all its Records are located at the address(es)
    specified on Exhibit I with respect to such Originating
    Entity or such other locations notified to each Administrative
    Agent in accordance with Section 2.8 hereof in
    jurisdictions where all action required by Section 2.8
    hereof has been taken and completed. The jurisdiction of
    organization of each of the Seller and the Transferor is the
    State of Delaware. The jurisdiction of organization for each
    Transferring Affiliate is the state specified opposite such
    Transferring Affiliate’s name on Exhibit Q.



 



    (j) Good Title. Upon each Transfer and each
    recomputation of the Transferred Interest, the Agent shall
    acquire a valid and perfected first priority undivided
    percentage ownership interest to the extent of the Transferred
    Interest or a first priority perfected security interest in each
    Receivable that exists on the date of such Transfer and
    recomputation and in the Related Security and Collections with
    respect thereto free and clear of any Adverse Claim.



 



    (k) Tradenames, Etc. As of the date hereof:
    (i) the Transferor’s chief executive office is located
    at the address for notices set forth in Section 10.3
    hereof; (ii) the Transferor has no subsidiaries or
    divisions; (iii) the Transferor has, within the last five
    (5) years, not operated under any tradename, and, within
    the last five (5) years, has not changed its name, merged
    with or into or consolidated with any other corporation or been
    the subject of any proceeding under Title 11, United States
    Code (Bankruptcy); and (iv) none of the Originating
    Entities has, within the last five (5) years, operated
    under any tradename other than Fresenius Medical Care North
    America or Spectra Renal Management or, within the last five
    (5) years, changed its name, merged with or into or
    consolidated with any other Person or been the subject of any
    proceeding under Title 11, United States Code
    (Bankruptcy), except in each case as described on Exhibit H.



 



    (l) Nature of Receivables. Each Receivable
    (x) represented by the Transferor or the Collection Agent
    to be an Eligible Receivable (including in any Investor Report
    or other report delivered pursuant to Section 2.11 hereof)
    or (y) included in the calculation of the Net Receivables
    Balance is an “eligible asset” as defined in
    Rule 3a-7
    under the Investment Company Act, of 1940, as amended and, in
    the case of clause (y) above, is not a Receivable of the
    type described in clauses (i) through (iii) of the
    definition of “Net Receivables Balance.”



 



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



 



    (n) Credit and Collection Policy. Since
    September 1, 2008, there have been no material changes in
    the Credit and Collection Policy other than as permitted
    hereunder. Since such date, no material adverse change has
    occurred in the overall rate of collection of the Receivables.



 



    (o) Collections and Servicing. Since
    September 1, 2008, there has been no material adverse
    change in the ability of the Collection Agent (to the extent it
    is the Seller, the Transferor or any Subsidiary or Affiliate of
    any of the foregoing) to service and collect the Receivables.



 



    (p) No Termination Event. No event has occurred and
    is continuing and no condition exists which constitutes a
    Termination Event or a Potential Termination Event.



 



    (q) Not an Investment Company. The Transferor is
    not, and is not controlled by, an “investment company”
    within the meaning of the Investment Company Act of 1940, as
    amended, or is exempt from all provisions of such Act.



 



    (r) ERISA. Each of the Transferor and its ERISA
    Affiliates is in compliance in all material respects with ERISA
    and no lien exists in favor of the Pension Benefit Guaranty
    Corporation on any of the Receivables.




    

    29








 






    (s) Special Account Banks, Intermediate Concentration
    Account Banks and Concentration Bank. The names and
    addresses of all the Special Account Banks (and, if applicable,
    the Designated Account Agent in respect thereof), the
    Intermediate Concentration Account Banks and the Concentration
    Account Bank, together with the account numbers of the Special
    Accounts at such Special Account Banks, the account numbers of
    the Intermediate Concentration Accounts at such Intermediate
    Concentration Account Banks and the account number of the
    Concentration Account of the Transferor at the Concentration
    Account Bank, are specified in Exhibit C hereto (or at such
    other Special Account Banks, Intermediate Concentration Account
    Banks or Concentration Account Bank, with such other Special
    Accounts, Intermediate Concentration Accounts or Concentration
    Account or with such other Designated Account Agents as have
    been notified to each Administrative Agent in accordance with
    Section 5.2(e)). This Agreement, together with the
    Concentration Account Agreement and the Intermediate
    Concentration Account Agreements, is effective to, and does,
    transfer to the Agent, for the benefit of the Investors, all
    right, title and interest of the Transferor in and to the
    Concentration Account and each Intermediate Concentration
    Account. The Transferor has not granted to any Person (other
    than the Agent under the Concentration Account Agreement and the
    Intermediate Concentration Account Agreements) dominion and
    control over the Concentration Account or any Intermediate
    Concentration Account, or the right to take dominion and control
    over the Concentration Account or any Intermediate Concentration
    Account at a future time or upon the occurrence of a future
    event; neither the Transferor nor any other Parent Group Member
    has granted to any Person dominion and control over any Special
    Account, or the right to take dominion or control over any
    Special Account at a future time or upon the occurrence of a
    future event; and the Concentration Account, each Intermediate
    Concentration Account and each Special Account is otherwise free
    and clear of any Adverse Clam.



 



    (t) Bulk Sales. No transaction contemplated hereby
    or by the Receivables Purchase Agreement requires compliance
    with any bulk sales act or similar law.



 



    (u) Transfers Under Receivables Purchase Agreement.
    With respect to each Receivable, and Related Security, if any,
    with respect thereto, originally owed to the Seller or acquired
    by the Seller from any Transferring Affiliate, the Transferor
    purchased such Receivable and Related Security from the Seller
    under the Receivables Purchase Agreement, such purchase was
    deemed to have been made on the date such Receivable was
    credited or acquired by the Seller and such purchase was made
    strictly in accordance with the terms of the Receivables
    Purchase Agreement.



 



    (v) Preference; Voidability (Receivables Purchase
    Agreement). The Transferor has given reasonably equivalent
    value to the Seller in consideration for each transfer to the
    Transferor of Receivables and Related Security from the Seller,
    and no such transfer has been made for or on account of an
    antecedent debt owed by the Seller to the Transferor and no such
    transfer is or may be voidable under any Section of the
    Bankruptcy Code.



 



    (w) Transfers by Transferring Affiliates. With
    respect to each Receivable, and Related Security, if any, with
    respect thereto, originally owed to any Transferring Affiliate,
    the Seller (i) purchased such Receivable and Related
    Security from such Transferring Affiliate under the Transferring
    Affiliate Letter or from BMA under the BMA Transfer Agreement,
    such purchase being deemed to have been made on the date such
    Receivable was created (or, in the case of a Receivable
    outstanding on the Original Closing Date, on the Original
    Closing Date), (ii) by the last Business Day of the month
    following the month in which such purchase was so made, paid to
    the applicable Transferring Affiliate in cash or by way of a
    credit to such Transferring Affiliate in the appropriate
    intercompany account, an amount equal to the face amount of such
    Receivable and (iii) settled from time to time each such
    credit, by way of payments in cash, or by way of credits in
    amounts equal to cash expended, obligations incurred or the
    value of services or property provided by or on behalf of the
    Seller, in each case for the benefit of such Transferring
    Affiliate, to the account of such Transferring Affiliate in
    accordance with the Seller’s and such Transferring
    Affiliate’s cash management and accounting policies.



 



    (x) Preference; Voidability (Transferring
    Affiliates). The Seller has given reasonably equivalent
    value to each Transferring Affiliate in consideration for each
    transfer to the Seller of Receivables and Related Security from
    such Transferring Affiliate, and no such transfer has been made
    for or on account of an antecedent debt owed by such
    Transferring Affiliate to the Seller and no such transfer is or
    may be voidable under any Section of the Bankruptcy Code.



 



    (y) Ownership. FME KGaA owns, directly or indirectly
    through a wholly-owned Subsidiary, all of the issued and
    outstanding common stock of (and such stock comprises more than
    80% of the Voting Stock of) FMCH, free and clear of any Adverse
    Claim except to the extent such stock is pledged in connection
    with the FME KGaA Credit Facility or is subject to put/call
    agreements, forward agreements or other similar arrangements
    among FME KGaA and its subsidiaries. All of the issued and
    outstanding stock of each




    

    30








 






    Originating Entity is owned directly or indirectly by FMCH, free
    and clear of any Adverse Claim except to the extent such stock
    is pledged in connection with the FME KGaA Credit Facility or is
    subject to put/call agreements, forward agreements or other
    similar arrangements among FME KGaA and its subsidiaries;
    provided, however, that FME KGaA may own directly or indirectly
    stock that is not Voting Stock in subsidiaries of FMCH. All of
    the issued and outstanding stock of the Transferor is owned by
    NMC, free and clear of any Adverse Claim.



 



    (z) Representations and Warranties of the Seller.
    Each of the representations and warranties of the Seller set
    forth in Section 3.1 of the Receivables Purchase Agreement
    are true and correct in all material respects and the Transferor
    hereby remakes all such representations and warranties for the
    benefit of the Agent, each of the Investors and each
    Administrative Agent.



 



    Any document, instrument, certificate or notice delivered by the
    Transferor to any Conduit Investor, Administrative Agent or the
    Agent hereunder shall be deemed a representation and warranty by
    the Transferor.



 



    Section 3.2. Reaffirmation
    of Representations and Warranties by the Transferor. On
    each day that a Transfer is made hereunder, the Transferor, by
    accepting the proceeds of such Transfer, whether delivered to
    the Transferor pursuant to Section 2.2(a) or
    Section 2.5 hereof, shall be deemed to have certified that
    all representations and warranties described in Section 3.1
    hereof are correct on and as of such day as though made on and
    as of such day. Each Incremental Transfer shall be subject to
    the further conditions precedent that:



 



    (a) prior to the date of such Incremental Transfer, the
    Collection Agent shall have delivered to the Agent and each
    Administrative Agent, in form and substance satisfactory to the
    Agent and each Administrative Agent, a completed Investor Report
    dated within ten (10) days prior to the date of such
    Incremental Transfer, together with a listing by Primary Payor
    of all Receivables, and such additional information as may be
    reasonably requested by any Administrative Agent or the Agent;



 



    (b) on date of such Incremental Transfer, either
    (i) FMCH’s long-term public senior debt securities are
    rated as least B- by Standard & Poor’s and B3 by
    Moody’s, or if neither Standard & Poor’s nor
    Moody’s shall rate such securities, FMCH’s long-term
    senior debt shall have a deemed rating of at least B as
    determined by each Administrative Agent using its standard bond
    rating methodology, or (ii) FME KGaA’s long-term
    public senior debt securities are rated as least B- by
    Standard & Poor’s and B3 by Moody’s, or if
    neither Standard & Poor’s nor Moody’s shall
    rate such securities, FME KGaA’s long-term senior debt
    shall have deemed rating of at least B as determined by each
    Administrative Agent using its standard bond rating methodology,



 



    and the Transferor shall be deemed to have represented and
    warranted that such conditions precedent have been satisfied.



 



    Section 3.3. Representations
    and Warranties of the Collection Agent. The Collection
    Agent represents and warrants to the Agent, each Administrative
    Agent and each of the Investors that:



 



    (a) Corporate Existence and Power. The Collection
    Agent is a corporation duly organized, validly existing and in
    good standing under the laws of its jurisdiction of
    incorporation and has all corporate power and all material
    governmental licenses, authorizations, consents and approvals
    required to carry on its business in each jurisdiction in which
    its business is now conducted. The Collection Agent is duly
    qualified to do business in, and is in good standing in, every
    other jurisdiction in which the nature of its business requires
    it to be so qualified, except where the failure to be so
    qualified or in good standing would not have a Material Adverse
    Effect.



 



    (b) Corporate and Governmental Authorization;
    Contravention. The execution, delivery and performance by
    the Collection Agent of this Agreement are within the Collection
    Agent’s corporate powers, have been duly authorized by all
    necessary corporate action, require no action by or in respect
    of, or filing with, any Official Body or official thereof, and
    do not contravene, or constitute a default under, any provision
    of applicable law, rule or regulation (including, without
    limitation, any CHAMPUS/VA Regulation, any Medicaid Regulation
    or any Medicare Regulation) or of the Certificate of
    Incorporation or Bylaws of the Collection Agent or of any
    agreement, judgment, injunction, order, writ, decree or other
    instrument binding upon the Collection Agent or result in the
    creation or imposition of any Adverse Claim on the assets of the
    Collection Agent or any of its Subsidiaries.



 



    (c) Binding Effect. This Agreement constitutes the
    legal, valid and binding obligation of the Collection Agent,
    enforceable in accordance with its terms, subject to applicable
    bankruptcy, insolvency, moratorium or similar laws affecting the
    rights of creditors.




    

    31








 






    (d) Accuracy of Information. All information
    heretofore furnished by the Collection Agent to the Agent, any
    Investor or any Administrative Agent for the purposes of or in
    connection with this Agreement or any transaction contemplated
    hereby is, and all such information hereafter furnished by the
    Collection Agent to the Agent, any Investor or any
    Administrative Agent will be, true and accurate in every
    material respect, on the date such information is stated or
    certified.



 



    (e) Action, Suits. Except as set forth in
    Exhibit H, there are no actions, suits or proceedings
    pending, or to the knowledge of the Collection Agent threatened,
    against or affecting the Collection Agent or any Affiliate of
    the Collection Agent or their respect properties, in or before
    any court, arbitrator or other body, which may, individually or
    in the aggregate, have a Material Adverse Effect.



 



    (f) Nature of Receivables. Each Receivable included
    in the calculation of the Net Receivables Balance is not a
    Receivable of the type described in clauses (i) through
    (iii) of the definition of “Net Receivables
    Balance”.



 



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



 



    (h) Credit and Collection Policy. Since
    September 1, 2008, there have been no material changes in
    the Credit and Collection Policy other than as permitted
    hereunder. Since such date, no material adverse change has
    occurred in the overall rate of collection of the Receivables.



 



    (i) Collections and Servicing. Since
    September 1, 2008, there has been no material adverse
    change in the ability of the Collection Agent to service and
    collect the Receivables.



 



    (j) Not an Investment Company. The Collection Agent
    is not, and is not controlled by, an “investment
    company” within the meaning of the Investment Company Act
    of 1940, as amended, or is exempt from all provisions of such
    Act.



 



    (k) Special Accounts, Intermediate Concentration
    Accounts and Concentration Account. The names and addresses
    of all the Special Account Banks (and, if applicable, the
    Designated Account Agent in respect thereof), the Intermediate
    Concentration Account Banks and the Concentration Account Bank,
    together with the account numbers of the Special Accounts at
    such Special Account Banks, the Intermediate Concentration
    Accounts at such Intermediate Concentration Account Banks and
    the account number of the Concentration Account of the
    Transferor at the Concentration Account Bank, are specified in
    Exhibit C hereto (or at such other Special Account Banks,
    Intermediate Concentration Account Banks or Concentration
    Account Bank, with such other Special Accounts, Intermediate
    Concentration Accounts or Concentration Account or with such
    other Designated Account Agents as have been notified to the
    Agent in accordance with Section 5.2(e)).



 




    ARTICLE IV

    



 




    CONDITIONS
    PRECEDENT
    



 



    Section 4.1. Conditions
    to Closing. The effectiveness of this Agreement shall
    be subject to the conditions precedent that (i) all fees
    required to be paid on or prior to the date hereof pursuant to
    the Fee Letters or the separate renewal or up-front fee letters
    entered into between the Transferor and the respective
    Administrative Agents shall have been paid in full,
    (ii) ABN AMRO Bank N.V. shall have received payment in full
    of the Payout Amount under (and as defined in) the Amendment
    Agreement and (iii) each Administrative Agent (or, in the
    case of clause (n) below, the Administrative Agent(s) for
    the relevant Conduit Investor(s)) shall have received the
    following documents, instruments and agreements all of which
    shall be in a form and substance acceptable to each
    Administrative Agent:



 



    (a) A copy of the resolutions of the Board of Directors of
    the Transferor certified by its Secretary approving the
    execution, delivery and performance by the Transferor of this
    Agreement, the Receivables Purchase Agreement and the other
    Transaction Documents to be delivered by the Transferor
    hereunder or thereunder.



 



    (b) A copy of the resolutions of the Board of Directors of
    the Collection Agent certified by its Secretary approving the
    execution, delivery and performance by the Collection Agent of
    this Agreement and the other Transaction Documents to be
    delivered by the Collection Agent hereunder or thereunder.



 



    (c) The Certificates of Incorporation of the Transferor
    certified by the Secretary of the Transferor dated a date
    reasonably prior to the Closing Date.



 



    (d) The Certificate of Incorporation of the Collection
    Agent certified by the Secretary of the Collection Agent dated a
    date reasonably prior to the Closing Date.




    

    32








 






    (e) A Good Standing Certificate for the Transferor issued
    by the Secretary of State or a similar official of the
    Transferor’s jurisdiction of incorporation and certificates
    of qualification as a foreign corporation issued by the
    Secretaries of State or other similar officials of each
    jurisdiction where such qualification is material to the
    transactions contemplated by this Agreement and the other
    Transaction Documents, in each case, dated a date reasonably
    prior to the Closing Date.



 



    (f) A Good Standing Certificate for the Collection Agent
    issued by the Secretary of State or a similar official of the
    Collection Agent’s jurisdiction of incorporation and
    certificates of qualification as a foreign corporation issued by
    the Secretaries of State or other similar officials of each
    jurisdiction when such qualification is material to the
    transactions contemplated by this Agreement and the Receivables
    Purchase Agreement and the other Transaction Documents, in each
    case, dated a date reasonably prior to the Closing Date.



 



    (g) A Certificate of the Secretary of the Transferor
    substantially in the form of Exhibit L attached hereto.



 



    (h) A Certificate of the Secretary of the Collection Agent
    substantially in the form of Exhibit L attached hereto.



 



    (i) If requested by the Agent, copies of proper financing
    statements
    (Form UCC-1),
    dated a date reasonably near to the Closing Date naming the
    Transferor as the debtor in favor of the Agent, for the benefit
    of the Investors, as the secured party or other similar
    instruments or documents as may be necessary or in the
    reasonable opinion of the Agent desirable under the UCC of all
    appropriate jurisdictions or any comparable law to perfect the
    Agent’s undivided percentage interest in all Receivables
    and the Related Security and Collections relating thereto.



 



    (j) An opinion of Douglas G. Kott, Vice President/Deputy
    General Counsel for FMCH, NMC and each Transferring Affiliate,
    acting as counsel to FMCH, the Transferor, the Collection Agent
    and the Originating Entities, in the respective form attached in
    Exhibit K hereto.



 



    (k) An opinion of Arent Fox LLP special counsel to FME
    KGaA, FMCH, the Transferor and the Seller, covering certain
    bankruptcy and general corporate matters in the respective forms
    attached in Exhibit K hereto.



 



    (l) An executed copy of this Agreement and each of the
    other Transaction Documents to be executed by the Transferor,
    any Originating Entity or the Collection Agent.



 



    (m) Amendments to the Parent Agreement, the Receivables
    Purchase Agreement, the Transferring Affiliate Letter and the
    Concentration Account Agreement, in the respective forms
    attached hereto as Exhibit P, duly executed by each of the
    parties thereto.



 



    (n) To the extent requested by any Conduit Investor,
    confirmation from each Rating Agency rating the Commercial Paper
    of such Conduit Investor that the execution and delivery of this
    Agreement and the transactions contemplated hereby will not
    result in the reduction or withdrawal of the then current rating
    of the Commercial Paper issued by such Conduit Investor.



 



    (o) Drafts of (i) the agreed upon procedures report
    from KPMG in substantially the form attached as Exhibit T
    and (ii) the “not material weakness” report from
    KPMG in substantially the form attached as Exhibit U, in
    each case satisfactory to the Administrative Agents.



 



    (p) Such other documents, instruments, certificates and
    opinions as the Agent or any Administrative Agent shall
    reasonably request including each of the documents, instruments,
    certificates and opinion identified on the List of Closing
    Documents attached hereto as Exhibit S.




    

    33








 







    ARTICLE V

    



 




    COVENANTS
    



 



    Section 5.1. Affirmative
    Covenants of Transferor. At all times from the date
    hereof to the later to occur of (i) the Termination Date or
    (ii) the date on which the Net Investment has been reduced
    to zero, all accrued Discount and Servicing Fees shall have been
    paid in full and all other Aggregate Unpaids shall have been
    paid in full, in cash, unless each Administrative Agent shall
    otherwise consent in writing:



 



    (a) Financial Reporting. The Transferor will, and
    will cause the Seller and each of the Transferring Affiliates
    to, maintain, for itself and each of its respective
    Subsidiaries, a system of accounting established and
    administered in accordance with GAAP, and furnish to each
    Administrative Agent:



 



    (i) Annual Reporting. As soon as available, but in
    any event within ninety-five (95) days after the end of
    each fiscal year of the Transferor, financial statements for the
    Transferor, including a balance sheet as of the end of such
    period, the related statement of income, retained earnings,
    shareholders’ equity and cash flows for such year prepared
    by the Transferor in accordance with GAAP, all certified by one
    of its officers.



 



    (ii) Quarterly Reporting. As soon as available, but
    in any event within fifty (50) days after the end of each
    of the first three quarterly periods of the Transferor’s
    fiscal years, financial statements for the Transferor, including
    a balance sheet as at the close of each such period and a
    related statement of income and retained earnings for the period
    from the beginning of such fiscal year to the end of such
    quarter, all certified by one of its officers.



 



    In the case of each of the financial statements required to be
    delivered under clause (i) or (ii) above, such
    financial statement shall set forth in comparative form the
    figures for the corresponding period or periods of the preceding
    fiscal year or the portion of the fiscal year ending with such
    period, as applicable (but not for any period prior to
    September 27, 1996), in each case subject to normal
    recurring year-end audit adjustments. Each such financial
    statement shall be prepared in accordance with GAAP consistently
    applied.



 



    (iii) Compliance Certificate. Together with the
    financial statements required hereunder, a compliance
    certificate signed by the Transferor’s chief executive
    officer or its senior financial officer stating that
    (x) the attached financial statements have been prepared in
    accordance with GAAP and accurately reflect the financial
    condition of the Transferor and (y) to the best of such
    Person’s knowledge, no Termination Event or Potential
    Termination Event exists, or if any Termination Event or
    Potential Termination Event exists, stating the nature and
    status thereof and (z) such Person has reviewed each
    Investor Report prepared by the Collection Agent since the end
    of the last day of the immediately preceding monthly period of
    the Transferor’s fiscal year and the information upon which
    each such Investor Report was based and, based on such review,
    such Person has concluded that (1) the calculation of the
    Net Receivables Balance (including, without limitation, the
    calculation of each of the items described in clauses (i)
    through (iv) of the definition of “Net Receivables
    Balance”) by the Collection Agent in each such Investor
    Report is accurate and complete in all material respects and
    (2) each such Investor Report is otherwise accurate and
    complete in all material respects.



 



    (iv) Notice of Termination Events or Potential
    Termination Events. As soon as possible and in any event
    within two (2) days (or the next Business Day thereafter if
    such day is not a Business Day) after the occurrence of each
    Termination Event or each Potential Termination Event, a
    statement of the chief executive officer or the senior financial
    officer of the Transferor setting forth details of such
    Termination Event or Potential Termination Event and the action
    which the Transferor proposes to take with respect thereto.



 



    (v) Change in Credit and Collection Policy and Debt
    Ratings. Within ten (10) days after the date any
    material change in or amendment to the Credit and Collection
    Policy is made, a copy of the Credit and Collection Policy then
    in effect indicating such change or amendment.



 



    (vi) Credit and Collection Policy. Within ninety
    (90) days after the close of each of the Seller’s and
    the Transferor’s fiscal years, a complete copy of the
    Credit and Collection Policy then in effect.



 



    (vii) ERISA. Promptly after the filing or receiving
    thereof, copies of all reports and notices with respect to any
    Reportable Event (as defined in Article IV of ERISA) which
    the Transferor, the Seller or any ERISA Affiliate of the
    Transferor or the Seller files under ERISA with the Internal
    Revenue Service, the Pension Benefit Guaranty Corporation or the
    U.S. Department of Labor or which the Transferor, the




    

    34








 






    Seller or any ERISA Affiliates of the Transferor or the Seller
    receives from the Internal Revenue Service, the Pension Benefit
    Guaranty Corporation or the U.S. Department of Labor.



 



    (viii) Notices under Transaction Documents.
    Forthwith upon its receipt thereof, a copy of each notice,
    report, financial statement, certification, request for
    amendment, directive, consent, waiver or other modification or
    any other writing issued under or in connection with any other
    Transaction Document by any party thereto (including, without
    limitation, by the Transferor).



 



    (ix) Investigations and Proceedings. Unless
    prohibited by either (i) the terms of the subpoena, request
    for information or other document referred to below,
    (ii) law (including, without limitation, rules and
    regulations) or (iii) restrictions imposed by the
    U.S. federal or state government or any agency or
    instrumentality thereof and subject to the execution by the
    applicable Administrative Agent of a confidentiality agreement
    in form and substance satisfactory to both the Transferor and
    such Administrative Agent, as soon as possible and in any event
    (A) within three Business Days after the Transferor (or
    within five Business Days after any Originating Entity) receives
    any subpoena, request for information, or any other document
    relating to any possible violation by the Transferor or any
    Originating Entity of, or failure by the Transferor or any
    Originating Entity to comply with, any rule, regulation or
    statute from HHS or any other governmental agency or
    instrumentality, notice of such receipt and, if requested by the
    Agent, the information contained in, or copies of, such
    subpoena, request or other document, and (B) periodic
    updates and other management reports relating to the subpoenas,
    requests for information and other documents referred to in
    clause (A) above as may be reasonably requested by any
    Administrative Agent unless such updates or requests could
    reasonably be deemed a contravention or waiver of any available
    claim of legal privilege, or would otherwise materially impair
    available defenses, of the Transferor or any Originating Entity.



 



    (x) Other Information. Such other information
    (including non-financial information) as the Agent or any
    Administrative Agent may from time to time reasonably request
    with respect to the Seller, the Transferor, any party to the
    Parent Agreement, any Transferring Affiliate or any Subsidiary
    of any of the foregoing.



 



    (b) Conduct of Business. The Transferor
    (i) will carry on and conduct its business in substantially
    the same manner and in substantially the same fields of
    enterprise as it is presently conducted and do all things
    necessary to remain duly incorporated, validly existing and in
    good standing as a domestic corporation in its jurisdiction of
    incorporation and maintain all requisite authority to conduct
    its business in each jurisdiction in which its business is
    conducted and (ii) will cause each Originating Entity to do
    each of the foregoing in respect of such Originating Entity.



 



    (c) Compliance with Laws. The Transferor will, and
    will cause each Originating Entity to, comply with all laws,
    rules and regulations (including, without limitation, all
    CHAMPUS/VA Regulations, Medicaid Regulations and Medicare
    Regulations), and all orders, writs, judgments, injunctions,
    decrees or awards to which it or its respective properties may
    be subject.



 



    (d) Furnishing of Information and Inspection of
    Records. The Transferor will, and will cause each
    Originating Entity to, furnish to each Administrative Agent from
    time to time such information with respect to the Receivables as
    such Administrative Agent may reasonably request, including,
    without limitation, listings identifying the Obligor and the
    Outstanding Balance for each Receivable. The Transferor will,
    and will cause each Originating Entity to, at any time and from
    time to time during regular business hours permit any
    Administrative Agent, or its agents or representatives,
    (i) to examine and make copies of and take abstracts from
    Records and (ii) to visit the offices and properties of the
    Transferor or such Originating Entity, as applicable, for the
    purpose of examining such Records, and to discuss matters
    relating to Receivables or the Transferor’s or such
    Originating Entity’s performance hereunder and under the
    other Transaction Documents to which such Person is a party with
    any of the officers, directors, employees or independent public
    accountants of the Transferor or such Originating Entity, as
    applicable, having knowledge of such matters.



 



    (e) Keeping of Records and Books of Account. The
    Transferor will, and will cause each Originating Entity to,
    maintain and implement administrative and operating procedures
    (including, without limitation, an ability to recreate records
    evidencing Receivables in the event of the destruction of the
    originals thereof), and keep and maintain, all documents, books,
    records and other information reasonably necessary or advisable
    for the collection of all Receivables (including, without
    limitation, records adequate to permit the daily identification
    of each new Receivable and all Collections of and adjustments to
    each existing Receivable). The Transferor will, and will cause
    each Originating Entity to, give each Administrative Agent
    notice of any




    

    35








 






    material change in the administrative and operating procedures
    of the Transferor or such Originating Entity, as applicable,
    referred to in the previous sentence.



 



    (f) Performance and Compliance with Receivables and
    Contracts. The Transferor, at its expense, will, and will
    cause each Originating Entity to, timely and fully perform and
    comply with all material provisions, covenant and other promises
    required to be observed by the Transferor or such Originating
    Entity under the Contracts related to the Receivables.



 



    (g) Credit and Collection Policies. The Transferor
    will, and will cause each Originating Entity to, comply in all
    material respects with the Credit and Collection Policy in
    regard to each Receivable and the related Contract.



 



    (h) Special Accounts; Intermediate Concentration
    Accounts; Concentration Account. The Transferor shall
    (i) cause each Originating Entity to establish and maintain
    Special Accounts with Special Account Banks, or to engage a
    Designated Account Agent to maintain a Special Account with a
    Special Account Bank on its behalf, (ii) instruct, and
    cause each Originating Entity to instruct, all Obligors to cause
    all collections to be deposited directly into a Special Account,
    (iii) report, and cause each Originating Entity to report,
    on each banking day to the Concentration Account Bank, the
    amount of all Collections on deposit on such banking day in the
    Special Accounts at each Special Account Bank or, if an
    Intermediate Concentration Account has been established at such
    Special Account Bank, the amount of all Collections on deposit
    on such banking day in such Intermediate Concentration Account,
    (iv) establish and maintain a Concentration Account with
    the Concentration Account Bank, (v) instruct, and cause
    each Originating Entity to instruct (or to cause the applicable
    Designated Account Agent to instruct), each Special Account Bank
    to transfer to the Concentration Account or an Intermediate
    Concentration Account prior to the close of business on such
    banking day all Collections on deposit during such banking day
    in the Special Accounts at such Special Account Bank,
    (vi) instruct each Intermediate Concentration Account Bank
    to transfer to the Concentration Account prior to the close of
    business on such banking day all Collections on deposit during
    such banking day in the Intermediate Concentration Accounts at
    such Intermediate Concentration Account Banks and
    (vii) instruct the Concentration Account Bank to give to
    each Special Account Bank on each banking day notice to transfer
    to the Concentration Account all Collections on deposit during
    such banking day in the Special Accounts at such Special Account
    Bank (or, if an Intermediate Concentration Account has been
    established at such Special Account Bank, in the Intermediate
    Concentration Account at such Special Account Bank);
    provided, however, that if the Collections on
    deposit in any Special Account during such banking day shall be
    less than $20,000.00 (the “Minimum Amount”),
    the Special Account Bank shall transfer such Collections to the
    Concentration Account or the applicable Intermediate
    Concentration Account on the next succeeding banking day on
    which Collections in such Special Account first exceed the
    Minimum Amount. With respect to any Special Account that is
    located at or maintained by a Bank Investor hereunder, the
    Transferor shall, by not later than the date that occurs six
    months after the Original Closing Date, cause the applicable
    Originating Entity to close such Special Account and shall
    instruct, and shall cause each applicable Originating Entity to
    instruct, all Obligors theretofore remitting payments to such
    Special Account to remit all future payments on Receivables and
    Related Security to a Special Account located at and maintained
    by a financial institution that is not a Bank Investor.



 



    “(i) Collections Received. The Transferor shall, and
    shall cause each Originating Entity to, segregate and hold in
    trust, and deposit, immediately, but in any event not later than
    the day that occurs forty-eight (48) hours thereafter (or,
    if such day is not a Business Day, the next Business Day) after
    its receipt thereof, to either the Intermediate Concentration
    Account or the Concentration Account all Collections received
    from time to time by the Transferor or such Originating Entity,
    as the case may be.”



 



    (j) Sale Treatment. The Transferor will not, and
    will not permit any Originating Entity to, account for
    (including for accounting and tax purposes), or otherwise treat,
    the transactions contemplated by the Receivables Purchase
    Agreement, the Transferring Affiliate Letter or the BMA Transfer
    Agreement in any manner other than as a sale of Receivables by
    the applicable Originating Entity to the Seller or Transferor,
    as applicable. In addition, the Transferor shall, and shall
    cause each Originating Entity to, disclose (in a footnote or
    otherwise) in all of its respective financial statements
    (including any such financial statements consolidated with any
    other Persons’ financial statements) the existence and
    nature of the transaction contemplated hereby, by the
    Receivables Purchase Agreement, by the Transferring Affiliate
    Letter and by the BMA Transfer Agreement, and the interest of
    the Transferor (in the case of the Seller’s financial
    statements), and the Agent, on behalf of the Investors, in the
    Affected Assets.



 



    (k) Separate Business. The Transferor shall at all
    times (a) to the extent the Transferor’s office is
    located in the offices of any Parent Group Member, pay fair
    market rent for its executive office space located in the




    

    36








 






    offices of such Parent Group Member, (b) have at all times
    at least one member of its board of directors which is not and
    has never been an employee, officer or director of any Parent
    Group Member or of any major creditor of any Parent Group Member
    and is a person who is and has experience with asset
    securitization, (c) maintain the Transferor’s books,
    financial statements, accounting records and other corporate
    documents and records separate from those of any Parent Group
    Member or any other entity, (d) not commingle the
    Transferor’s assets with those of any Parent Group Member
    or any other entity, (e) act solely in its corporate name
    and through its own authorized officers and agents,
    (f) make investments directly or by brokers engaged and
    paid by the Transferor its agents (provided that if any such
    agent is an Affiliate of the Transferor it shall be compensated
    at a fair market rate for its services), (g) separately
    manage the Transferor’s liabilities from those of the
    Parent Group and pay its own liabilities, including all
    administrative expenses, from its own separate assets, except
    that the Seller may pay the organizational expenses of the
    Transferor, and (h) pay from the Transferor’s assets
    all obligations and indebtedness of any kind incurred by the
    Transferor. The Transferor shall abide by all corporate
    formalities, including the maintenance of current minute books,
    and the Transferor shall cause its financial statements to be
    prepared in accordance with GAAP in a manner that indicates the
    separate existence of the Transferor and its assets and
    liabilities. The Transferor shall (i) pay all its
    liabilities, (ii) not assume the liabilities of any Parent
    Group Member, (iii) not lend funds or extend credit to any
    Parent Group Member except pursuant to the Receivables Purchase
    Agreement in connection with the purchase of Receivables
    thereunder and (iv) not guarantee the liabilities of any
    Parent Group Member. The officers and directors of the
    Transferor (as appropriate) shall make decisions with respect to
    the business and daily operations of the Transferor independent
    of and not indicated by any controlling entity. The Transferor
    shall not engage in any business not permitted by its
    Certificate of Incorporation as in effect on the Closing Date.
    The Transferor shall, in addition to the foregoing, take such
    other actions as are necessary on its part to ensure that the
    facts and assumptions set forth in the opinions issued by Arent
    Fox LLP, as counsel for the Transferor, in connection with the
    closing or initial Transfer under this Agreement and relating to
    “non-consolidation” issues and “true sale”
    issues, and in the certificates accompanying such opinions,
    remain true and correct in all material respects at all times.



 



    (l) Corporate Documents. The Transferor shall only
    amend, alter, change or repeal any provision of the Third,
    Fifth, Seventh, Tenth, Eleventh or Twelfth Article of its
    Certificate of Incorporation with the prior written consent of
    each Administrative Agent.



 



    (m) Payment to the Originating Entities. With
    respect to any Receivable purchased by the Transferor from the
    Seller, such sale shall be effected under, and in strict
    compliance with the terms of, the Receivables Purchase
    Agreement, including, without limitation, the terms relating to
    the amount and timing of payments to be made to the Seller by
    the Transferor in respect of the purchase price for such
    Receivable. With respect to any Receivable purchased by the
    Seller from any Transferring Affiliate, the Transferor shall
    cause such sale to be effected under, and in strict compliance
    with the terms of, the Transferring Affiliate Letter and the BMA
    Transfer Agreement, as applicable, including, without
    limitation, the terms relating to the amount and timing of
    payments to be made to each Transferring Affiliate in respect of
    the purchase price for such Receivable.



 



    (n) Performance and Enforcement of the Receivables
    Purchase Agreement, etc. The Transferor shall timely perform
    the obligations required to be performed by the Transferor, and
    shall vigorously enforce the rights and remedies accorded to the
    Transferor, under the Receivables Purchase Agreement. The
    Transferor shall cause the Seller to timely perform the
    obligations required to be performed by the Seller, and shall
    cause the Seller to vigorously enforce the rights and remedies
    accorded to the Seller, under each of the Transferring Affiliate
    Letter and the BMA Transfer Agreement. The Transferor shall take
    all actions to perfect and enforce its rights and interests (and
    the rights and interests of the Agent, each Administrative Agent
    and each of the Investors, as assignees of the Transferor) under
    the Receivables Purchase Agreement as any Administrative Agent
    may from time to time reasonably request, including, without
    limitation, making claims to which it may be entitled under any
    indemnity, reimbursement or similar provision contained in the
    Receivables Purchase Agreement. The Transferor shall cause the
    Seller to take all actions to perfect and enforce the
    Seller’s rights and interests (and the rights and interests
    of the Transferor, the Agent, the Administrative Agent and each
    of the Investors, as assignees of the Seller) under the
    Transferring Affiliate Letter or the BMA Transfer Agreement as
    any Administrative Agent may from time to time reasonably
    request, including, without limitation, making claims to which
    it may be entitled under any indemnity, reimbursement or similar
    provision contained in the Transferring Affiliate Letter or the
    BMA Transfer Agreement.



 



    Section 5.2. Negative
    Covenants of the Transferor. At all times from the date
    hereof to the later to occur of (i) the Termination Date or
    (ii) the date on which the Net Investment has been reduced
    to zero, all accrued Discount




    

    37








 






    and Servicing Fees shall have been paid in full and all other
    Aggregate Unpaids shall have been paid in full, in cash, unless
    each Administrative Agent shall otherwise consent in writing:



 



    (a) No Sales, Liens, Etc. Except as otherwise
    provided herein and in the Receivables Purchase Agreement, the
    Transferor will not, and will not permit any Originating Entity
    to, sell, assign (by operation of law or otherwise) or otherwise
    dispose of, or create or suffer to exist any Adverse Claim upon
    (or the filing of any financing statement) or with respect to
    (x) any of the Affected Assets, (y) any inventory or
    goods, the sale of which may give rise to a Receivable or any
    Receivable or related Contract, or (z) any Special Account,
    any Intermediate Concentration Account or the Concentration
    Account or any other account to which any Collections of any
    Receivable are sent, or assign any right to receive income in
    respect thereof.



 



    (b) No Extension or Amendment of Receivables. Except
    as otherwise permitted in Section 6.2 hereof, the
    Transferor will not, and will not permit any Originating Entity
    to, extend, amend or otherwise modify the terms of any
    Receivable, or amend, modify or waive any term or condition of
    any Contract related thereto.



 



    (c) No Change in Business or Credit and Collection
    Policy. The Transferor will not, and will not permit any
    Originating Entity to, make any change in the character of its
    business or in the Credit and Collection Policy, which change
    would, in either case, impair the collectibility of any
    Receivable or otherwise have a Material Adverse Effect.



 



    (d) No Mergers, Etc. The Transferor will not, and
    will not permit any Originating Entity to, merge with or into or
    consolidate with or into, or convey, transfer, lease or
    otherwise dispose of (whether in one transaction or in a series
    of transactions), all or substantially all of its assets
    (whether now owned or hereafter acquired and except as
    contemplated in the Transaction Documents) to any Person, except
    that (i) any Transferring Affiliate may merge or
    consolidate with any other Transferring Affiliate and
    (ii) the Seller may merge or consolidate with any other
    Person if, but only if, (x) immediately after giving effect
    to such merger or consolidation, no Termination Event or
    Potential Termination Event would exist and (y) if the
    Seller is not the surviving corporation, each Administrative
    Agent shall have received a written agreement, in form and
    substance satisfactory to such Administrative Agent, executed by
    the Person resulting from such merger or consolidation, under
    which agreement such Person shall become the Seller and
    Collection Agent, and shall assume the duties, obligations and
    liabilities of the Seller, under the Receivables Purchase
    Agreement, this Agreement (in its capacity as Collection Agent
    hereunder), the Special Account Letters and each other
    Transaction Document to which the Seller is party (whether in
    its individual capacity or as Collection Agent), together with
    the documents relating to the Seller of the kind delivered by or
    on behalf of the Seller pursuant to Section 3.1.



 



    (e) Change in Payment Instructions to Obligors, Special
    Account Banks, Designated Account Agents and Concentration
    Account. The Transferor will not, and will not permit any
    Originating Entity to:



 



    (i) add or terminate any bank as a Special Account Bank
    from those listed in Exhibit C hereto, or make any change
    in its instructions to Obligors regarding payments to be made to
    any Special Account Bank; provided that the Transferor
    may permit the (A) addition of any bank as a Special
    Account Bank for purposes of this Agreement at any time
    following delivery to each Administrative Agent of written
    notice of such addition and a Special Account Letter duly
    executed by such bank, and (B) termination of any Special
    Account Bank at any time following delivery to each
    Administrative Agent of written notice of such termination and
    evidence satisfactory to each Administrative Agent that the
    affected Obligors shall have been instructed to remit all
    subsequent Collections to another Special Account; or



 



    (ii) add, terminate or change the Concentration Account, or
    any bank as the Concentration Account Bank, from that listed in
    Exhibit C hereto, or make any change in the instructions
    contained in any Special Account Letter or any change in the
    instructions to the Concentration Account Bank; provided,
    however, that the Transferor may terminate the then
    existing Concentration Account Bank and appoint a new
    Concentration Account Bank if, prior to such termination and
    appointment, each Administrative Agent shall receive
    (i) ten Business Days’ prior notice of such
    termination and appointment and (ii) prior to the effective
    date of such termination and appointment, (x) for each
    Special Account where the Special Account Bank was previously
    remitting Collections directly to the Concentration Account, an
    executed copy of a Special Account Letter (executed by the
    applicable Originating Entity and the applicable Special Account
    Bank) instructing such Special Account Bank to transfer to the
    new Concentration Account or an Intermediate Concentration
    Account prior to the close of business on each banking day all
    Collections on deposit during such banking day in such Special
    Account; (y) for each Intermediate Concentration Account,
    an executed amendment to the applicable Intermediate
    Concentration Account Agreement (executed by the Transferor and
    the applicable Intermediate Concentration Account Bank)
    instructing such Intermediate Concentration Account Bank to
    transfer to the new Concentration Account




    

    38








 






    prior to the close of business on each banking day all
    Collections on deposit during such banking day in such
    Intermediate Concentration Account, and (z) a copy of a
    Concentration Account Agreement executed by the new
    Concentration Account Bank and the Transferor; or



 



    (iii) add or terminate any Person as a Designated Account
    Agent from those listed in Exhibit C hereto, or make any
    change in its instructions to such Designated Account Agent
    regarding the handling of the Collections in the applicable
    Special Account; provided that the Transferor may permit
    the (A) addition of any Person that satisfies the
    requirements set forth herein of a “Designated Account
    Agent” as a Designated Account Agent for purposes of this
    Agreement at any time following delivery to each Administrative
    Agent of written notice of such addition and an Account Agent
    Agreement duly executed by such Person, and (B) termination
    of any Designated Account Agent at any time following delivery
    to each Administrative Agent of written notice of such
    termination and evidence satisfactory to each Administrative
    Agent that either an Originating Entity or a new Designated
    Account Agent shall have been added in accordance with the terms
    of this Agreement to succeed such terminated Designated Account
    Agent in respect of the applicable Special Account or the
    affected Obligors shall have been instructed to remit all
    subsequent Collections to another Special Account; or



 



    (iv) add, terminate or change any Intermediate
    Concentration Account, or any bank as an Intermediate
    Concentration Account Bank, or make any change in the
    instructions to any Intermediate Concentration Account Bank;
    provided, however, that the Transferor may
    terminate any then existing Intermediate Concentration Account
    Bank or appoint a new Intermediate Concentration Account Bank
    if, prior to such termination or appointment, each
    Administrative Agent shall receive (i) ten Business
    Days’ prior notice of such termination or appointment and
    (ii) prior to the effective date of such termination or
    appointment, (x) executed copies of Special Account Letters
    (in each case, executed by the applicable Originating Entity and
    the applicable Special Account Bank with which the Intermediate
    Concentration Account that is being terminated or added was or
    is to be maintained) instructing the Special Account Bank to
    transfer to the new Intermediate Concentration Account at such
    Special Account Bank or directly to the Concentration Account,
    in either case prior to the close of business on each banking
    day, all Collections on deposit during such banking day in the
    Special Accounts at such Special Account Bank, and (y) in
    the case of the addition of a new Intermediate Concentration
    Account, a copy of an Intermediate Concentration Account
    Agreement executed by the new Intermediate Concentration Account
    Bank and the Transferor; and provided, further,
    that the Transferor may change its instructions to any
    Intermediate Concentration Account Bank as and to the extent
    required pursuant to clause (ii) above in connection with
    the establishment of any new Concentration Account.



 



    (f) Deposits to Special Accounts and the Concentration
    Account. The Transferor will not, and will not permit any of
    the Originating Entities or Designated Account Agents to,
    deposit or otherwise credit, or cause or permit to be so
    deposited or credited, to any Special Account, any Intermediate
    Concentration Account or the Concentration Account cash or cash
    proceeds other than Collections of Receivables.



 



    (g) Change of Name, Etc. The Transferor will not,
    and will not permit any Originating Entity to, change its name,
    identity or structure or the location of its chief executive
    office or jurisdiction of organization, unless at least
    10 days prior to the effective date of any such change the
    Transferor delivers to each Administrative Agent (i) such
    documents, instruments or agreements, executed by the Transferor
    and/or the
    affected Originating Entities, as are necessary to reflect such
    change and to continue the perfection of the Agent’s
    ownership interests or security interest in the Affected Assets
    and (ii) new or revised Special Account Letters executed by
    the Special Account Banks which reflect such change and enable
    the Agent to continue to exercise its rights contained in
    Section 2.8 hereof. The Transferor will not, and will not
    permit any Originating Entity to, change its jurisdiction of
    organization to a jurisdiction other than a State within the
    United States.



 



    (h) Amendment to Receivables Purchase Agreement,
    Etc.. The Transferor will not, and will not permit any
    Originating Entity to, (i) amend, modify, or supplement the
    Receivables Purchase Agreement, the Transferring Affiliate
    Letter, the BMA Transfer Agreement or any instrument, document
    or agreement executed in connection therewith (collectively the
    “Initial Transfer Documents”), (ii) terminate or
    cancel any Initial Transfer Document, (iii) issue any
    consent or directive under any Initial Transfer Document,
    (iv) undertake any enforcement proceeding in respect of any
    of the Initial Transfer Documents, or (v) waive, extend the
    time for performance or grant any indulgence in respect of any
    provision of any Initial Transfer Document, in each case except
    with the prior written consent of the Agent and each
    Administrative Agent; nor shall the Transferor take, or permit
    any Originating Entity to take, any other action under any of
    the Initial Transfer Documents that shall have a material
    adverse affect on the Agent, any Administrative Agent or any
    Investor or which is inconsistent with the terms of this
    Agreement.




    

    39








 






    (i) Other Debt. Except as provided for herein, the
    Transferor will not create, incur, assume or suffer to exist any
    indebtedness whether current or funded, or any other liability
    other than (i) indebtedness of the Transferor representing
    fees, expenses and indemnities arising hereunder or under the
    Receivables Purchase Agreement for the purchase price of the
    Receivables under the Receivables Purchase Agreement, and
    (ii) other indebtedness incurred in the ordinary course of
    its business in an amount not to exceed $50,000 at any time
    outstanding.



 



    (j) ERISA Matters. The Transferor will not, and will
    not permit any Originating Entity to, (i) engage or permit
    any of its respective ERISA Affiliates to engage in any
    prohibited transaction (as defined in Section 4975 of the
    Code and Section 406 of ERISA) for which an exemption is
    not available or has not previously been obtained from the
    U.S. Department of Labor; (ii) permit to exist any
    accumulated funding deficiency (as defined in
    Section 302(a) of ERISA and Section 412(a) of the
    Code) or funding deficiency with respect to any Benefit Plan
    other than a Multiemployer Plan; (iii) fail to make any
    payments to any Multiemployer Plan that the Transferor, such
    Originating Entity or any ERISA Affiliate thereof is required to
    make under the agreement relating to such Multiemployer Plan or
    any law pertaining thereto; (iv) terminate any Benefit Plan
    so as to result in any liability; or (v) permit to exist
    any occurrence of any reportable event described in
    Title IV of ERISA which represents a material risk of a
    liability to the Transferor, such Originating Entity or any
    ERISA Affiliate thereof under ERISA or the Code, if such
    prohibited transactions, accumulated funding deficiencies,
    payments, terminations and reportable events occurring within
    any fiscal year of the Transferor, in the aggregate, involve a
    payment of money or an incurrence of liability by the
    Transferor, any Originating Entity or any ERISA Affiliate
    thereof, in an amount in excess of $500,000.



 



    Section 5.3. Affirmative
    Covenants of the Collection Agent. At all times from
    the date hereof to the later to occur of (i) the
    Termination Date or (ii) the date on which the Net
    Investment has been reduced to zero, all accrued Discount and
    Servicing Fees shall have been paid in full and all other
    Aggregate Unpaids shall have been paid in full, in cash, unless
    each Administrative Agent shall otherwise consent in writing.



 



    (a) Conduct of Business. The Collection Agent will
    carry on and conduct its business in substantially the same
    manner and in substantially the same fields of enterprise as it
    is presently conducted and do all things necessary to remain
    duly incorporated, validly existing and in good standing as a
    domestic corporation in its jurisdiction of incorporation and
    maintain all requisite authority to conduct its business in each
    jurisdiction in which its business is conducted.



 



    (b) Compliance with Laws. The Collection Agent will
    comply with all laws, rules and regulations (including, without
    limitation, all CHAMPUS/VA Regulations, Medicaid Regulations and
    Medicare Regulations), and all orders, writs, judgments,
    injunctions, decrees or awards to which it or its respective
    properties may be subject.



 



    (c) Furnishing of Information and Inspection of
    Records. The Collection Agent will furnish to each
    Administrative Agent from time to time such information with
    respect to the Receivables as such Administrative Agent may
    reasonably request, including, without limitation, listings
    identifying the Obligor and the Outstanding Balance for each
    Receivable. The Collection Agent will, at any time and from time
    to time during regular business hours permit any Administrative
    Agent, or its agents or representatives, (i) to examine and
    make copies of and take abstracts from all Records and
    (ii) to visit the offices and properties of the Collection
    Agent for the purpose of examining such records, and to discuss
    matters relating to Receivables or the Transferor’s, the
    Originating Entities’ or the Collection Agent’s
    performance hereunder and under the other Transaction Documents
    to which such Person is a party with any of the officers,
    directors, employees or independent public accountants of the
    Collection Agent having knowledge of such matters.



 



    (d) Keeping of Records and Books of Account. The
    Collection Agent will maintain and implement administrative and
    operating procedures (including, without limitation, an ability
    to recreate records evidencing Receivables in the event of the
    destruction of the originals thereof), and keep and maintain,
    all documents, books, records and other information reasonably
    necessary or advisable for the collection of all Receivables
    (including, without limitation, records adequate to permit the
    daily identification of each new Receivable and all Collections
    of and adjustments to each existing Receivable). The Collection
    Agent will give each Administrative Agent notice of any material
    change in the administrative and operating procedures of the
    Collection Agent referred to in the previous sentence.



 



    (e) Notice of Agent’s Interest. The Collection
    Agent shall cause its master data processing records, computer
    tapes, files and other documents or instruments provided to,
    developed by or otherwise maintained by the Collection Agent in
    connection with any Transfer or otherwise for purposes of the
    transactions




    

    40








 






    contemplated in this Agreement to disclose conspicuously the
    Transferor’s ownership of the Receivables and the
    Agent’s interest therein.



 



    (f) Credit and Collection Policies. The Collection
    Agent will comply in all material respects with the Credit and
    Collection Policy in regard to each Receivable and the related
    Contract.



 



    (g) Collections. The Collection Agent shall instruct
    all Obligors to cause all Collections to be deposited directly
    to a Special Account and shall take, or omit to take, all
    actions in respect of Obligors, the Special Account Banks,
    Intermediate Concentration Account Banks and the Concentration
    Account Bank solely in a manner that is consistent with the
    terms of this Agreement, including, without limitation,
    Sections 2.8, 5.1(h), 5.2(e) and 5.2(f) hereof.



 



    (h) Collections Received. The Collection Agent shall
    segregate and hold in trust, and deposit, immediately, but in
    any event not later than the day that occurs forty-eight
    (48) hours thereafter (or, if such day is not a Business
    Day, the next Business Day) after its receipt thereof, either to
    the Intermediate Concentration Account or to the Concentration
    Account all Collections received from time to time by the
    Collection Agent.



 



    Section 5.4. Negative
    Covenants of the Collection Agent. At all times from
    the date hereof to the later to occur of (i) the
    Termination Date or (ii) the date on which the Net
    Investment has been reduced to zero, all accrued Discount and
    Servicing Fees shall have been paid in full and all other
    Aggregate Unpaids shall have been paid in full, in cash, unless
    each Administrative Agent shall otherwise consent in writing:



 



    (a) No Extension or Amendment of Receivables. Except
    as otherwise permitted in Section 6.2 hereof, the
    Collection Agent will not extend, amend or otherwise modify the
    terms of any Receivable, or amend, modify or waive any term or
    condition of any Contract related thereto.



 



    (b) No Change in Business or Credit and Collection
    Policy. The Collection Agent will not make any change in the
    character of its business or in the Credit and Collection
    Policy, which change would, in either case, impair the
    collectibility of any Receivable or otherwise have a Material
    Adverse Effect.



 



    (c) No Mergers, Etc. Except as otherwise permitted
    under Section 5.2(d), the Collection Agent will not
    (i) consolidate or merge with or into any other Person, or
    (ii) sell, lease or transfer all or substantially all of
    its assets to any other Person.



 



    (d) Deposits to Accounts. The Collection Agent will
    not deposit or otherwise credit, or cause or permit to be so
    deposited or credited, to any Special Account or Concentration
    Account cash or cash proceeds other than Collections of
    Receivables.



 




    ARTICLE VI

    



 




    ADMINISTRATION
    AND COLLECTION
    



 



    Section 6.1. Appointment
    of Collection Agent. The servicing, administering and
    collection of the Receivables shall be conducted by such Person
    (the “Collection Agent”) so designated from
    time to time in accordance with this Section 6.1. Until the
    Agent gives notice to the Transferor of the designation of a new
    Collection Agent, NMC is hereby designated as, and hereby agrees
    to perform the duties and obligations of, the Collection Agent
    pursuant to the terms hereof. The Collection Agent may not
    delegate any of its rights, duties or obligations hereunder, or
    designate a substitute Collection Agent, without the prior
    written consent of each Administrative Agent; provided
    that the Collection Agent may from time to time delegate to any
    Originating Entity such of its rights, duties and obligations
    hereunder as relate to the servicing, administering and
    collection of the Receivables originated by such Originating
    Entity; provided further that (i) any such
    delegation shall be terminated upon the replacement of the
    Collection Agent hereunder and (ii) the Collection Agent
    shall continue to remain solely liable for the performance of
    the duties as Collection Agent hereunder notwithstanding any
    such delegation hereunder. The Agent may, and upon the direction
    of the Majority Investors the Agent shall, after the occurrence
    of a Collection Agent Default or any other Termination Event
    designate as Collection Agent any Person (including itself) to
    succeed NMC or any successor Collection Agent, on the conditions
    in each case that any such Person so designated shall agree to
    perform the duties and obligations of the Collection Agent
    pursuant to the terms hereof and such designation of such Person
    is permitted by applicable law (including, without limitation,
    applicable CHAMPUS/VA Regulations, Medicaid Regulations and
    Medicare Regulations) or any order of a court of competent
    jurisdiction. The Agent may notify any Obligor as to the
    ownership interest therein that shall have been transferred to
    the Transferor and, except as otherwise provided hereunder, as
    to the Transferred Interest hereunder.




    

    41








 






    Section 6.2. Duties
    of Collection Agent.



 



    (a) The Collection Agent shall take or cause to be taken
    all such action as may be necessary or advisable to collect each
    Receivable from time to time, all in accordance with applicable
    laws, rules and regulations (including, without limitation, all
    CHAMPUS/VA Regulations, Medicaid Regulations and Medicare
    Regulations), with reasonable care and diligence, and in
    accordance with the Credit and Collection Policy. Each of the
    Transferor, the Agent, the Administrative Agents and the
    Investors hereby appoints as its agent the Collection Agent,
    from time to time designated pursuant to Section 6.1
    hereof, to enforce its respective rights and interests in and
    under the Affected Assets. To the extent permitted by applicable
    law, the Transferor hereby grants to any Collection Agent
    appointed hereunder an irrevocable power of attorney to take any
    and all steps in the Transferor’s
    and/or any
    Originating Entity’s name and on behalf of the Transferor
    necessary or desirable, in the reasonable determination of the
    Collection Agent, to collect all amounts due under any and all
    Receivables, including, without limitation, endorsing the
    Transferor’s
    and/or any
    Originating Entity’s name on checks and other instruments
    representing Collections and enforcing such Receivables and the
    related Contracts. The Transferor represents and warrants that
    the foregoing power of attorney, in the case of any Originating
    Entity, has been duly granted to the Transferor under the
    Receivables Purchase Agreement and the Transferor is authorized
    under the Receivables Purchase Agreement, to the extent
    permitted by applicable law, to authorize the Collection Agent
    hereunder to exercise such power. The Collection Agent shall set
    aside for the account of the Transferor and the Agent (for the
    benefit of the Investors) their respective allocable shares of
    the Collections of Receivables in accordance with
    Sections 2.5 and 2.6 hereof. The Collection Agent shall
    segregate and deposit to each Administrative Agent’s
    account such Administrative Agent’s allocable share of
    Collections of Receivables when required pursuant to
    Article II hereof. So long as no Termination Event shall
    have occurred and be continuing, the Collection Agent may, in
    accordance with the Credit and Collection Policy, extend the
    maturity or adjust the Outstanding Balance of any Defaulted
    Receivable as the Collection Agent may determine to be
    appropriate to maximize Collections thereof; provided,
    however, that such extension or adjustment shall not
    alter the status of such Receivable as a Defaulted Receivable.
    The Transferor shall deliver to the Collection Agent and the
    Collection Agent shall hold in trust for the Transferor, and the
    Agent, on behalf of the Investors, in accordance with their
    respective interests, all Records which evidence or relate to
    Receivables or Related Security. Notwithstanding anything to the
    contrary contained herein, the Agent shall have the absolute and
    unlimited right to direct the Collection Agent (whether the
    Collection Agent is NMC or any other Person) to commence or
    settle any legal action to enforce collection of any Receivable
    or to foreclose upon or repossess any Related Security. The
    Collection Agent shall not make the Agent, any Administrative
    Agent or any of the Investors a party to any litigation without
    the prior written consent of such Person.



 



    (b) The Collection Agent shall, as soon as practicable
    following receipt thereof, turn over to the Transferor any
    collections of any indebtedness of any Person which is not on
    account of a Receivable. If the Collection Agent is not NMC or
    an Affiliate thereof, the Collection Agent, by giving three
    Business Days’ prior written notice to the Agent, may
    revise the percentage used to calculate the Servicing Fee so
    long as the revised percentage will not result in a Servicing
    Fee that exceeds 110% of the reasonable and appropriate out-of
    pocket costs and expenses of such Collection Agent incurred in
    connection with the performance of its obligations hereunder as
    documented to the reasonable satisfaction of each Administrative
    Agent, provided, however, that at any time after
    the Percentage Factor equals or exceeds 98%, any compensation to
    the Collection Agent in excess of the Servicing Fee initially
    provided for herein shall be an obligation of the Transferor and
    shall not be payable, in whole or in part, from the Collections
    allocated to or for the benefit of any of the Investors
    hereunder. The Collection Agent, if other than NMC, shall as
    soon as practicable upon demand, deliver to the Transferor all
    Records in its possession which evidence or relate to
    indebtedness of an Obligor which is not a Receivable.



 



    (c) On or before September 30 of each calendar year, the
    Collection Agent shall cause a firm of independent public
    accountants (who may also render other services to the
    Collection Agent, the Transferor, the Seller or any Affiliates
    of any of the foregoing), or such other Person as may be
    approved by each Administrative Agent (any of the foregoing
    being an “Auditor”), to furnish a report to each
    Administrative Agent in accordance with the procedures set forth
    on Exhibit T.



 



    (d) Notwithstanding anything to the contrary contained in
    this Article VI, the Collection Agent, if not the
    Transferor or NMC, shall have no obligation to collect, enforce
    or take any other action described in this Article VI with
    respect to any indebtedness that is not included in the
    Transferred Interest other than to deliver to the Transferor the
    collections and documents with respect to any such indebtedness
    as described in Section 6.2 (b) hereof.




    

    42








 






    Section 6.3. Right
    After Designation of New Collection Agent. At any time
    following the designation of a Collection Agent (other than the
    Transferor, the Seller or any Affiliate of the Transferor or the
    Seller) pursuant to Section 6.1 hereof:



 



    (i) The Agent may direct that payment of all amounts
    payable under any Receivable be made directly to the Agent or
    its designee.



 



    (ii) The Transferor shall, at the Agent’s request and
    at the Transferor’s expense, give notice of the
    Agent’s, the Transferor’s
    and/or the
    Bank Investors’ ownership of Receivables to each Obligor
    and direct that payments be made directly to the Agent or its
    designee.



 



    (iii) The Transferor shall, at the Agent’s request,
    (A) assemble all of the Records, and shall make the same
    available to the Agent or its designee at a place selected by
    the Agent or its designee, and (B) segregate all cash,
    checks and other instruments received by it from time to time
    constituting Collections of Receivables in a manner acceptable
    to the Agent and shall, promptly upon receipt, remit all such
    cash, checks and instruments, duly endorsed or with duly
    executed instruments of transfer, to the Agent or its designee.



 



    (iv) The Transferor hereby authorizes the Agent to take, to
    the extent permitted by applicable law, any and all steps in the
    Transferor’s or any Originating Entity’s name (which
    power, in the case of each Originating Entity, the Transferor is
    authorized to grant pursuant to authority granted to the
    Transferor under the Receivables Purchase Agreement) and on
    behalf of the Transferor and such Originating Entity necessary
    or desirable, in the determination of the Agent, to collect all
    amounts due under any and all Receivables, including, without
    limitation, endorsing the Transferor’s or such Originating
    Entity’s name on checks and other instruments representing
    Collections and enforcing such Receivables and the related
    Contracts.



 



    Notwithstanding the foregoing clauses (i), (ii), (iii) and
    (iv), the Agent shall not at any time direct, or cause the
    Transferor or any Originating Entity to direct, Obligors of
    Receivables or Related Security payable under the Medicare or
    Medicaid program to make payment of amounts due or to become due
    to the Transferor or any Originating Entity in respect of such
    Receivables or Related Security directly to either the
    Intermediate Concentration Account or the Concentration Account
    or to the Agent or its designee, except for any such
    payment in respect of such Receivables or Related Security or
    any assignment thereof that is established by, or made pursuant
    to, the order of a court of competent jurisdiction.



 



    Section 6.4. Collection
    Agent Default. The occurrence of any one or more of the
    following events shall constitute a Collection Agent Default:



 



    (a) (i) the Collection Agent or, to the extent that
    the Transferor, the Seller or any Affiliate of the Transferor or
    the Seller is then acting as Collection Agent, the Transferor,
    the Seller or such Affiliate, as applicable, shall fail to
    observe or perform any term, covenant or agreement to be
    observed or performed (A) under Section 5.3(d), 5.3(g)
    or 5.3(h) or Section 5.4, or (B) under
    Section 5.3 (other than subsection (d), (g) or
    (h) thereof) and such failure shall continue for five
    (5) days, or (ii) the Collection Agent or, to the
    extent that the Transferor, the Seller or any Affiliate of the
    Transferor, or the Seller is then acting as Collection Agent,
    the Transferor, the Seller or such Affiliate, as applicable,
    shall fail to observe or perform any term, covenant or agreement
    hereunder (other than as referred to in clause (i) or
    (iii) of this Section 6.4(a)) or under any of the
    other Transaction Documents to which such Person is a party or
    by which such Person is bound, and such failure shall remain
    unremedied for ten (10) days, or (iii) the Collection
    Agent or, the extent that the Transferor, the Seller or any
    Affiliate of the Transferor, or the Seller is then acting as
    Collection Agent, the Transferor, the Seller or such Affiliate,
    as applicable, shall fail to make any payment or deposit
    required to be made by it hereunder when due or the Collection
    Agent shall fail to observe or perform any term, covenant or
    agreement on the Collection Agent’s part to be performed
    under Section 2.8(b) hereof; or



 



    (b) any representation, warranty, certification or
    statement made by the Collection Agent or the Transferor, the
    Seller or any Affiliate of the Transferor or the Seller (in the
    event that the Transferor, the Seller or such Affiliate is then
    acting as the Collection Agent) in this Agreement, the
    Receivables Purchase Agreement, the Transferring Affiliate
    Letter, the BMA Transfer Agreement or in any of the other
    Transaction Documents or in any certificate or report delivered
    by it pursuant to any of the foregoing shall prove to have been
    incorrect in any material respect when made or deemed
    made; or



 



    (c) failure of the Collection Agent or any of its
    Subsidiaries, FME KGaA, or FMCH to pay when due any amounts due
    under any agreement under which any Indebtedness greater that
    $50,000,000 is governed; or the default by the Collection Agent
    or any of its Subsidiaries, FME KGaA or FMCH in the performance
    of any term, provision of condition contained in any agreement
    under which any Indebtedness greater than $50,000,000 was
    created or is governed, regardless of whether such event is an
    “event of default” or “default”




    

    43








 






    under any such agreement; or any Indebtedness of the Collection
    Agent or any of its Subsidiaries, FME KGaA or FMCH greater than
    $50,000,000 shall be declared to be due and payable or required
    to be prepaid (other than by a regularly scheduled payment and
    other than in the case of an instrument stated to be payable on
    demand) prior to the scheduled date of maturity thereof; or



 



    (d) any Event of Bankruptcy shall occur with respect to the
    Collection Agent or any of its Subsidiaries; provided
    that in the case of any immaterial Subsidiary of the Collection
    Agent, if an Event of Bankruptcy shall have occurred by reason
    of any institution of an involuntary proceeding against such
    Subsidiary, such Event of Bankruptcy shall not constitute a
    Collection Agent Default unless such proceeding shall have
    remained undismissed or unstayed for a period of
    60 days; or



 



    (e) there shall have occurred any material adverse change
    in the operations of the Collection Agent since the end of the
    last fiscal year ending prior to the date of its appointment as
    Collection Agent hereunder or any other event shall have
    occurred which, in the commercially reasonably judgment of the
    Agent, materially and adversely affects the Collection
    Agent’s ability to either collect the Receivables or to
    perform under this Agreement.



 



    Section 6.5. Responsibilities
    of the Transferor. Anything herein to the contrary
    notwithstanding, the Transferor shall,
    and/or shall
    cause each Originating Entity to, (i) perform all of each
    Originating Entity’s obligations under the Contracts
    related to the Receivables to the same extent as if interests in
    such Receivables had not been sold hereunder and under the
    Transferring Affiliate Letter, the BMA Transfer Agreement
    and/or the
    Receivables Purchase Agreement, as applicable, and the exercise
    by the Agent, any Administrative Agent and the Investors of
    their rights hereunder and under the Transferring Affiliate
    Letter, the BMA Transfer Agreement and the Receivables Purchase
    Agreement shall not relieve the Transferor or the Seller from
    such obligations and (ii) pay when due any taxes, including
    without limitation, any sales taxes payable in connection with
    the Receivables and their creation and satisfaction. Neither the
    Agent nor any of the Investors or the Administrative Agents
    shall have any obligation or liability with respect to any
    Receivable or related Contracts, nor shall it be obligated to
    perform any of the obligations of the Seller thereunder.



 




    ARTICLE VII

    



 




    TERMINATION
    EVENTS
    



 



    Section 7.1. Termination
    Events. The occurrence of any one or more of the
    following events shall constitute a Termination Event:



 



    (a) the Transferor or the Collection Agent shall fail to
    make any payment or deposit to be made by it hereunder or under
    the Receivables Purchase Agreement when due hereunder or
    thereunder; or



 



    (b) any representation, warranty, certification or
    statement made or deemed made by the Transferor in this
    Agreement, by FME KGaA or FMCH under the Parent Agreement, or by
    the Transferor, FME KGaA, FMCH or any other Parent Group Member
    in any other Transaction Document to which it is a party or in
    any other document certificate or other writing delivered
    pursuant hereto or thereto, shall prove to have been incorrect
    in any material respect when made or deemed made; or



 



    (c) the Transferor or the Collection Agent shall default in
    the performance of any payment or undertaking (other than those
    covered by clause (a) above) to be performed or observed
    under:



 



    (i) Section 5.1(a)(iv); provided that, in the
    case of any failure to provide any such notice relating to a
    Potential Termination Event that shall have ceased to exist
    prior to the date such notice was required to have been given
    under Section 5.1(a)(iv), the failure to give such notice shall
    not constitute a Termination Event unless a senior officer of
    the Seller or the Transferor (including, in each case, the
    Treasurer, any Assistant Treasurer, General Counsel or any
    assistant or associate general counsel of such Person) shall
    have known of the occurrence of such Potential Termination Event
    during such period; or



 



    (ii) any of Sections 5.1(a)(v), 5.1 (a)(x), 5.1
    (a)(ix), 5.1(b)(i), 5.1(f), 5.1(g), 5.1(h), 5.1(i), 5.1(k),
    5.1(l), 5.2(a), 5.2(c), 5.2(d), 5.2(e), 5.2(f), 5.2(g), 5.2(h),
    5.2(i) or 6.3; or



 



    (iii) Section 5.1(b)(ii), and such default shall
    continue for 2 Business Days; or



 



    (iv) any other provision hereof and such default in the
    case of this clause (iv) shall continue for ten
    (10) days;



 



    (d) (i) failure of the Transferor to pay when due any
    amounts due under any agreement relating to Indebtedness to
    which it is a party; or the default by the Transferor in the
    performance of any term, provision or




    

    44








 






    condition contained in any agreement relating to Indebtedness to
    which it is a party regardless of whether such event is an
    “event of default” or “default” under any
    such agreement; or any Indebtedness owing by the Transferor
    shall be declared to be due and payable or required to be
    prepaid (other than by a regularly scheduled payment) prior to
    the date of maturity thereof; or (ii) failure of the
    Seller, FMCH, FME KGaA or any Transferring Affiliate to pay when
    due any amounts due under any agreement to which any such Person
    is a party and under which any Indebtedness greater than
    $50,000,000 is governed; or the default by the Seller, FMCH, FME
    KGaA or any Transferring Affiliate in the performance of any
    term, provision or condition contained in any agreement to which
    any such Person is a party and under which any Indebtedness
    owing by the Seller, FMCH, FME KGaA or any Transferring
    Affiliate greater than $50,000,000 was created or is governed,
    regardless of whether such event is an “event of
    default” or “default” under any such agreement;
    or any Indebtedness owing by the Seller, FMCH, FME KGaA or any
    Transferring Affiliate greater than $50,000,000 shall be
    declared to be due and payable or required to be prepaid (other
    than by a regularly scheduled payment and other than in the case
    of an instrument stated to be payable on demand) prior to the
    date of maturity thereof; or



 



    (e) any Event of Bankruptcy shall occur with respect to the
    Transferor, any Originating Entity, FME KGaA, FMCH or NMC;
    provided that, in the case of any Event of Bankruptcy
    relating to any Transferring Affiliate, such Event of Bankruptcy
    shall not constitute a Termination Event hereunder if at such
    time the Percentage Factor does not exceed the Maximum
    Percentage Factor after reducing the Net Receivables Balance by
    an amount equal to the aggregate Outstanding Balance of all
    Receivables otherwise included in the calculation of Net
    Receivables Balance which either (i) have been originated
    by such Transferring Affiliate or (ii) are owing from any
    Obligor that shall have been directed to remit payments thereon
    to a Special Account that is a Special Account to which Obligors
    in respect of the Transferring Affiliate that is the subject of
    such Event of Bankruptcy shall have been directed to remit
    payments; or



 



    (f) the Agent, on behalf of the Investors, shall, for any
    reason, fail or cease to have a valid and perfected first
    priority ownership or security interest in the Affected Assets
    free and clear of any Adverse Claims; or the Transferor shall,
    for any reason, fail or cease to have all right, title and
    interest in and to all Receivables, Related Security and
    Collections, free and clear of any Adverse Claim, subject only
    to the interests therein of the Agent, on behalf of the
    Investors; or



 



    (g) a Collection Agent Default shall have occurred; or



 



    (h) the Transferring Affiliate Letter, the BMA Transfer
    Agreement, the Receivables Purchase Agreement or any other
    Transaction Document shall have terminated; or any material
    provision thereof shall cease for any reason to be valid and
    binding on any party thereto or any party shall so state in
    writing; or any party to any Transaction Document (other than
    the Agent, any Administrative Agent or any Investor) shall fail
    to perform any material term, provision or condition contained
    in any Transaction Document on its part to be performed or a
    default shall otherwise occur thereunder; or



 



    (i) any of FMCH, NMC, the Transferor or the Seller shall
    enter into any transaction or merger whereby it is not the
    surviving entity; or



 



    (j) there shall have occurred any material adverse change
    in the operations of any of FMCH, NMC, the Transferor or the
    Seller since December 31, 2002 or any other Material
    Adverse Effect shall have occurred; or



 



    (k) any Liquidity Provider or Credit Support Provider shall
    have given notice that an event of default has occurred and is
    continuing under any of its respective agreements with a Conduit
    Investor; or



 



    (l) the Commercial Paper issued by a Conduit Investor or
    its Related Issuer shall not be rated at least
    “A-2”
    by Standard & Poor’s and at least
    “P-2”
    by Moody’s, unless any rating of such Commercial Paper
    shall be lower than such level solely as a result of the
    correspondingly lower rating of the Credit Support Provider for
    such Conduit Investor; or



 



    (m) (i) the Percentage Factor exceeds the Maximum
    Percentage Factor unless the Transferor reduces the Net
    Investment or increases the balance of the Affected Assets on
    the next Business Day so as to reduce the Percentage Factor to
    less than or equal to the Maximum Percentage Factor;
    (ii) the Percentage Factor equals or exceeds 100.0% at any
    time unless the Transferor reduces the Net Investment or
    increases the balance of the Affected Assets on the next
    Business Day so as to reduce the Percentage Factor to less than
    or equal to 100%; or (iii) the portion of the Net
    Investment held by the Investors in any Related Group plus, in
    the case where any portion of such Net Investment is held by a
    Conduit Investor, the Interest Component of all outstanding
    Related Commercial Paper with respect to such Conduit Investor,
    shall exceed the applicable Related Group Limit at any
    time; or




    

    45








 






    (n) the Dilution Ratio for any month exceeds 10%; or



 



    (o) the Loss-to-Liquidation Ratio for any month exceeds
    8%; or



 



    (p) the Default Ratio for any month exceeds 9%; or



 



    (q) a default shall occur under the Parent Agreement; or
    the Parent Agreement shall for any reason terminate; or any
    material provision thereof shall cease to be valid and binding
    on any party thereto or any party thereto shall so state in
    writing; or



 



    (r) (i) the Seller shall cease to own, free and clear
    of any Adverse Claim all of the outstanding shares of capital
    stock of the Transferor on a fully diluted basis; or
    (ii) FMCH shall cease to own, directly or indirectly, free
    and clear of any Adverse Claim, (other than a pledge made
    pursuant to the FME KGaA Credit Facility and put/call
    agreements, forward agreements or other similar arrangements
    among FME KGaA and its subsidiaries), all of the outstanding
    shares of capital stock of any of the Originating Entities or
    the Collection Agent on a fully diluted basis; provided that FME
    KGaA may own directly or indirectly stock that is not Voting
    Stock in subsidiaries of FMCH; or (iii) FME KGaA shall
    cease to own, directly or indirectly, free and clear of any
    Adverse Claim (other than a pledge made pursuant to the FME KGaA
    Credit Facility and put/call agreements, forward agreements or
    other similar arrangements among FME KGaA and its subsidiaries),
    all of the Voting Stock of FMCH other than the preferred stock
    of FMCH outstanding as of the date hereof (which preferred stock
    outstanding as of the date hereof shall not represent more than
    20% of the total Voting Stock of FMCH); or (iv) a Change of
    Control shall occur; or



 



    (s) both (i) FMCH’s long-term public senior debt
    securities shall be rated lower than B+ by Standard &
    Poor’s or B1 by Moody’s, or if neither
    Standard & Poor’s nor Moody’s shall rate
    such securities, FMCH’s long-term senior debt shall have a
    deemed rating of lower than B+ as determined by the Agent using
    its standard bond rating methodology, and (ii) FME
    KGaA’s long-term public senior debt securities shall be
    rated lower than B+ by Standard & Poor’s or B1 by
    Moody’s, or if neither Standard & Poor’s nor
    Moody’s shall rate such securities, FME KGaA’s
    long-term senior debt shall have a deemed rating of lower than
    B+ as determined by the Agent using its standard bond rating
    methodology; or



 



    (t) the Administrative Agents shall not have received, by
    no later than November 21, 2003 (i) a final agreed
    upon procedures report from KPMG substantially in the form
    attached as Exhibit T with results satisfactory to each
    Administrative Agent and (ii) a final “no material
    weakness” report from KPMG substantially in the form
    attached as Exhibit U with results satisfactory to each
    Administrative Agent.



 



    Section 7.2. Termination. (a) Upon
    the occurrence of any Termination Event, the Agent may, and at
    the direction of any Administrative Agent or the Majority
    Investors shall, by notice to the Transferor and the Collection
    Agent declare the Termination Date to have occurred;
    provided, however, that in the case of any event
    described in Section 7.1(e), 7.1(f), 7.1(m)(ii),
    7.1(m)(iii) or 7.1(r) above, the Termination Date shall be
    deemed to have occurred automatically upon the occurrence of
    such event. Upon any such declaration or automatic occurrence,
    the Agent shall have, in addition to all other rights and
    remedies under this Agreement or otherwise, all other rights and
    remedies provided under the UCC of the applicable jurisdiction
    and other applicable laws, all of which rights shall be
    cumulative.



 



    (b) At all times after the declaration or automatic
    occurrence of the Termination Date pursuant to
    Section 7.2(a), the Base Rate plus 2.00% shall be the
    Tranche Rate applicable to the Net Investment for all
    existing and future Tranches.



 




    ARTICLE VIII

    



 




    INDEMNIFICATION;
    EXPENSES; RELATED MATTERS
    



 



    Section 8.1. Indemnities
    by the Transferor. Without limiting any other rights
    which the Agent, the Administrative Agents or the Investors may
    have hereunder or under applicable law, the Transferor hereby
    agrees to indemnify the Investors, the Agent, the Administrative
    Agents, the Collateral Agents, the Liquidity Providers and the
    Credit Support Providers and their respective successors and
    permitted assigns and their respective officers, directors and
    employees (collectively, “Indemnified Parties”)
    from and against any and all damages, losses, claims,
    liabilities, costs and expenses, including, without limitation,
    reasonable attorneys’ fees (which such attorneys may be
    employees of a Liquidity Provider, a Credit Support Provider,
    the Agent, an Administrative Agent or a Collateral Agent, as
    applicable) and disbursements (all of the foregoing being
    collectively referred to as “Indemnified
    Amounts”) awarded against or incurred by any of them in
    any action or proceeding between the Transferor or any Parent
    Group Member (including any Parent Group Member, in its capacity
    as the Collection Agent) and any of the Indemnified Parties or
    between any of the




    

    46








 






    Indemnified Parties and any third party or otherwise arising out
    of or as a result of this Agreement, the other Transaction
    Documents, the ownership or maintenance, either directly or
    indirectly, by the Agent or any Investor of the Transferred
    Interest or any of the other transactions contemplated hereby or
    thereby, excluding, however, (i) Indemnified Amounts to the
    extent resulting from gross negligence or willful misconduct on
    the part of an Indemnified Party or (ii) recourse (except
    as otherwise specifically provided in this Agreement) for
    uncollectible Receivables. Without limiting the generality of
    the foregoing, the Transferor shall indemnify each Indemnified
    Party for Indemnified Amounts relating to or resulting from:



 



    (i) any representation or warranty made by any Parent Group
    Member (including any Parent Group Member, in its capacity as
    the Collection Agent) or any officers of any Parent Group Member
    (including any Parent Group Member, in its capacity as the
    Collection Agent) under or in connection with this Agreement,
    the Receivable Purchase Agreement, the Parent Agreement, the
    Transferring Affiliate Letter, the BMA Transfer Agreement, any
    of the other Transaction Documents, any Investor Report or any
    other information or report delivered by any Parent Group Member
    pursuant to or in connection with any Transaction Document,
    which shall have been false or incorrect in any material respect
    when made or deemed made;



 



    (ii) the failure by any Parent Group Member (including any
    Parent Group Member, in its capacity as the Collection Agent) to
    comply with any applicable law, rule or regulation (including,
    without limitation, any CHAMPUS/VA Regulation, any Medicaid
    Regulation or any Medicare Regulation), including with respect
    to any Receivable or the related Contract, or the nonconformity
    of any Receivable or the related Contract with any such
    applicable law, rule or regulation;



 



    (iii) the failure (x) to vest and maintain vested in
    the Agent, on behalf of the Investors, an undivided first
    priority, perfected percentage ownership interest (to the extent
    of the Transferred Interest) in the Affected Assets free and
    clear of any Adverse Claim or (y) to create or maintain a
    valid and perfected first priority security interest in favor of
    the Agent, for the benefit of the Investors, in the Affected
    Assets as contemplated pursuant to Section 10.11, free and
    clear of any Adverse Claim;



 



    (iv) the failure to file, or any delay in filing, financing
    statements, continuation statements, or other similar
    instruments or documents under the UCC of any applicable
    jurisdiction or other applicable laws with respect to any of the
    Affected Assets;



 



    (v) any dispute, claim, offset or defense (other than
    discharge in bankruptcy) of the Obligor to the payment of any
    Receivable (including, without limitation, a defense based on
    such Receivable or the related Contract not being the legal,
    valid and binding obligation of such Obligor enforceable against
    it in accordance with its terms), or any other claim resulting
    from the sale of merchandise or services related to such
    Receivable or the furnishing or failure to furnish such
    merchandise or services;



 



    (vi) any failure of the Collection Agent to perform its
    duties or obligations in accordance with the provisions
    hereof; or



 



    (vii) any products liability claim or personal injury or
    property damage suit or other similar or related claim or action
    of whatever sort arising out of or in connection with
    merchandise or services which are the subject of any Receivable;



 



    (viii) the transfer of an ownership interest in any
    Receivable other than an Eligible Receivable;



 



    (ix) the failure by any Parent Group Member (individually
    or as Collection Agent) to comply with any term, provision or
    covenant contained in this Agreement or any of the other
    Transaction Documents to which it is a party or to perform any
    of its respective duties under the Contracts;



 



    (x) the Percentage Factor exceeding the Maximum Percentage
    Factor at any time;



 



    (xi) the failure of any Originating Entity to pay when due
    any taxes, including without limitation, sales, excise or
    personal property taxes payable in connection with any of the
    Receivables;



 



    (xii) any repayment by any Indemnified Party of any amount
    previously distributed in reduction on Net Investment which such
    Indemnified Party believes in good faith is required to be made;



 



    (xiii) the commingling by the Transferor, any Originating
    Entity or the Collection Agent of Collections of Receivables at
    any time with other funds;



 



    (xiv) any investigation, litigation or proceeding
    instituted by or against a Person other than such Indemnified
    Party related to this Agreement, any of the other Transaction
    Documents, the use of proceeds of Transfers by the Transferor or
    any Originating Entity, the ownership of Transferred Interests,
    or any Receivable, Related Security or Contract;




    

    47








 






    (xv) the failure of any Special Account Bank, Designated
    Account Agent, Intermediate Concentration Account Bank or the
    Concentration Account Bank to remit any amounts held by it
    pursuant to the instructions set forth in the applicable Special
    Account Letter, Intermediate Concentration Account Agreement or
    Concentration Account Agreement or any instruction of the
    Collection Agent, the Transferor, any Originating Entity or the
    Agent (to the extent such Person is entitled to give such
    instructions in accordance with the terms hereof and of any
    applicable Special Account Letter, Intermediate Concentration
    Account Agreement or Concentration Account Agreement) whether by
    reason of the exercise of set-off rights or otherwise;



 



    (xvi) any inability to obtain any judgment in or utilize
    the court or other adjudication system of, any state in which an
    Obligor may be located as a result of the failure of the
    Transferor or the Seller to qualify to do business or file any
    notice of business activity report or any similar report;



 



    (xvii) any failure of the Transferor to give reasonably
    equivalent value to the Seller in consideration of the purchase
    by the Transferor from the Seller of any Receivable, any failure
    of the Seller to give reasonably equivalent value to any
    Transferring Affiliate in consideration of the purchase by the
    Seller from such Transferring Affiliate of any Receivable, or
    any attempt by any Person to void, rescind or set-aside any such
    transfer under statutory provisions or common law or equitable
    action, including, without limitation, any provision of the
    Bankruptcy Code;



 



    (xviii) any action taken by the Transferor, any Originating
    Entity or the Collection Agent (if a Parent Group Member or
    designee thereof) in the enforcement or collection of any
    Receivable; provided, however, that if any Conduit
    Investor enters into agreements for the purchase of interests in
    receivables from one or more Other Transferors, such Conduit
    Investor shall allocate such Indemnified Amounts which are in
    connection with a Credit Support Agreement or the credit support
    furnished by the Credit Support Provider to the Transferor and
    each Other Transferor; and provided, further, that
    if such Indemnified Amounts are attributable to any Parent Group
    Member and not attributable to any Other Transferor, the
    Transferor shall be solely liable for such Indemnified Amounts
    or if such Indemnified Amounts are attributable to Other
    Transferors and not attributable to any Parent Group Member,
    such Other Transferors shall be solely liable for such
    Indemnified Amounts;



 



    (xix) any reduction or extinguishment of, or any failure by
    any Obligor to pay (in whole or in part), any Receivable or any
    Related Security with respect thereto as a result of or on
    account of any violation of or prohibition under any law, rule
    or regulation now or hereafter in effect from time to time,
    including without limitation and CHAMPUS/VA Regulation, any
    Medicaid Regulation or any Medicare Regulation, or as a result
    of or on account of the entering of any judicial or regulatory
    order or agreement adversely affecting the Transferor or any
    Parent Group Member; or



 



    (xx) any failure by the Transferor or any Parent Group
    Member to maintain all governmental and other authorization and
    approvals necessary to render the services, or sell the
    merchandise, resulting in Receivables.



 



    Section 8.2. Indemnity
    for Taxes, Reserves and Expenses. (a) If after the
    date hereof, the adoption of any Law or bank regulatory
    guideline or any amendment or change in the interpretation of
    any existing or future Law or bank regulatory guideline by any
    Official Body charged with the administration, interpretation or
    application thereof, or the compliance with any directive of any
    Official Body (in the case of any bank regulatory guideline,
    whether or not having the force of Law):



 



    (i) shall subject any Indemnified Party to any tax, duty or
    other charge (other than Excluded Taxes) with respect to this
    Agreement, the other Transaction Documents, the ownership,
    maintenance or financing of the Transferred Interest, the
    Receivables or payments of amounts due hereunder, or shall
    change the basis of taxation of payments to any Indemnified
    Party of amounts payable in respect of this Agreement, the other
    Transaction Documents, the ownership, maintenance or financing
    of the Transferred Interest, the Receivables or payments of
    amounts due hereunder or its obligation to advance funds
    hereunder, under a Liquidity Provider Agreement or the credit
    support furnished by a Credit Support Provider or otherwise in
    respect of this Agreement, the other Transaction Documents, the
    ownership, maintenance or financing of the Transferred Interest
    or the Receivables (except for changes in the rate of general
    corporate, franchise, net income or other income tax imposed on
    such Indemnified Party by the jurisdiction in which such
    Indemnified Party’s principal executive office is located);



 



    (ii) shall impose, modify or deem applicable any reserve,
    special deposit or similar requirement (including, without
    limitation, any such requirement imposed by the Board of
    Governors of the Federal Reserve System) against assets of,
    deposits with or for the account of, or credit extended by, any
    Indemnified Party or shall impose on any Indemnified Party or on
    the United States market for certificates of deposit or the
    London interbank market any other condition affecting this
    Agreement, the other Transaction Documents, the




    

    48








 






    ownership, maintenance or financing of the Transferred Interest,
    the Receivables or payments of amounts due hereunder or its
    obligation to advance funds hereunder under a Liquidity Provider
    Agreement or the credit support provided by a Credit Support
    Provider or otherwise in respect of this Agreement, the other
    Transaction Documents, the ownership, maintenance or financing
    of the Transferred Interest or the Receivables; or



 



    (iii) imposes upon any Indemnified Party any other expense
    (including, without limitation, reasonable attorneys’ fees
    and expenses, and expenses of litigation or preparation therefor
    in contesting any of the foregoing) with respect to this
    Agreement, the other Transaction Documents, the ownership,
    maintenance or financing of the Transferred Interest, the
    Receivables or payments of amounts due hereunder or its
    obligation to advance funds hereunder under a Liquidity Provider
    Agreement or the credit support furnished by a Credit Support
    Provider or otherwise in respect to this Agreement, the other
    Transaction Documents, the ownership, maintenance or financing
    of the Transferred Interests or the Receivables, and the result
    of any of the foregoing is to increase the cost to such
    Indemnified Party with respect to this Agreement, the other
    Transaction Documents, the ownership, maintenance or financing
    of the Transferred Interest, the Receivables, the obligations
    hereunder, the funding of any purchases hereunder, a Liquidity
    Provider Agreement or a Credit Support Agreement, by an amount
    deemed by such Indemnified Party to be material,



 



    then, within ten (10) days after demand by such Indemnified
    Party through any Administrative Agent, the Transferor shall pay
    to such Administrative Agent for the benefit of such Indemnified
    Party, such additional amount or amounts as will compensate such
    Indemnified Party for such tax, increased cost or reduction.



 



    (b) If any Indemnified Party shall have determined that
    after the date hereof, the adoption of any applicable Law or
    bank regulatory guideline regarding capital adequacy or
    accounting principles, or any change therein, or any change in
    the interpretation or administration thereof by any Official
    Body, or any request or directive regarding capital adequacy (in
    each case of any bank regulatory guideline or accounting
    principles, whether or not having the force of law) of any such
    Official Body, has or would have the effect of reducing the rate
    of return on capital of such Indemnified Party (or its parent)
    as a consequence of such Indemnified Party’s obligations
    hereunder or with respect hereto or otherwise as a consequence
    of the transactions contemplated hereby to a level below that
    which such Indemnified Party (or its parent) could have achieved
    but for such adoption, change, request or directive (taking into
    consideration its policies with respect to capital adequacy) by
    an amount deemed by such Indemnified Party to be material, then
    from time to time, within ten (10) days after demand by
    such Indemnified Party through any Administrative Agent, the
    Transferor shall pay to such Administrative Agent, for the
    benefit of such Indemnified Party, such additional amount or
    amounts as will compensate such Indemnified Party (or its
    parent) for such reduction. For avoidance of doubt, any
    interpretation of Accounting Research Bulletin No. 51
    by the Financial Accounting Standards Board shall constitute an
    adoption, change, request or directive subject to this
    Section 8.2(b).



 



    (c) Each Administrative Agent will promptly notify the
    Transferor of any event of which it has knowledge, occurring
    after the date hereof, which will entitle an Indemnified Party
    to compensation pursuant to this Section 8.2. A notice by
    an Administrative Agent or the applicable Indemnified Party
    claiming compensation under this Section and setting forth the
    additional amount or amounts to be paid to it hereunder shall be
    conclusive in the absence of manifest error. In determining such
    amount, such Administrative Agent or any applicable Indemnified
    Party may use any reasonable averaging and attributing methods.



 



    (d) Anything in this Section 8.2 to the contrary
    notwithstanding, if a Conduit Investor enters into agreements
    for the acquisition of interests in receivables from one or more
    Other Transferors, such Conduit Investor shall allocate the
    liability for any amounts under this Section 8.2 which are
    in connection with a Credit Support Agreement or the credit
    support provided by the Credit Support Provider
    (“Section 8.2 Costs”) to the Transferor
    and each Other Transferor; provided, however, that
    if such Section 8.2 Costs are attributable to any Parent
    Group Member and not attributable to any Other Transferor, the
    Transferor shall be solely liable for such Section 8.2
    Costs or if such Section 8.2 Costs are attributable to
    Other Transferors and not attributable to any Parent Group
    Member, such Other Transferors shall be solely liable for such
    Section 8.2 Costs.



 



    (e) If any Indemnified Party in a Related Group makes a
    claim for payment pursuant to this Section 8.2, then the
    Transferor may, at its option, remove such Related Group and
    terminate the Commitments of the Investors in such Related Group
    by paying to the Administrative Agent for such Related Group an
    amount (the “Payoff Amount”) equal to the sum of
    (i) the portion of the Net Investment funded by the
    Investors in such Related Group, (ii) all Discount accrued
    and to accrue thereon through the last day of the applicable
    Yield Period(s) to which such Net Investment has been allocated
    and (iii) all other Aggregate Unpaids owing to the members
    of such Related Group under the Transaction Documents accrued
    through the date of such payment (including, without limitation,
    amounts payable pursuant to this Section 8.2 accrued
    through the date of payment). Any such removal and termination
    shall be made upon not less than five (5) Business Days
    notice delivered by the Transferor to the applicable
    Administrative Agent. The Payoff Amount for any Related Group
    shall be calculated by the




    

    49








 






    Administrative Agent and notified to the Transferor, which
    calculation shall be conclusive and binding absent manifest
    error. Upon such removal and termination, (x) the members
    of such Related Group shall cease to be parties to this
    Agreement and the Commitments of all Bank Investors in such
    Related Group shall be reduced to zero, (y) the Facility
    Limit will be reduced by an amount equal to the Commitments
    (determined immediately prior to such termination) of the Bank
    Investors, in such Related Group and (z) the Maximum Net
    Investment shall be reduced to 98% of the Facility Limit
    (determined after giving effect to the reduction thereof as
    described above).



 



    Section 8.3. Taxes. (a) All
    payments made hereunder by the Transferor or the Collection
    Agent (each, a “Payor”) to any Investor, any
    Administrative Agent or the Agent (each, a
    “Recipient”) shall be made free and clear of and
    without deduction for any present or future income, excise,
    stamp or franchise taxes and any other taxes, fees, duties,
    withholdings or other charges of any nature whatsoever imposed
    by any taxing authority on any recipient (or any assignee of
    such parties) (such non-excluded items being called
    “Taxes”), but excluding franchise taxes and taxes
    imposed on or measured by the recipient’s net income or
    gross receipts (“Excluded Taxes”). In the event that
    any withholding or deduction from any payment made by the Payor
    hereunder is required in respect of any Taxes, then such Payor
    shall:



 



    (i) pay directly to the relevant authority the full amount
    required to be so withheld or deducted;



 



    (ii) promptly forward to each Administrative Agent an
    official receipt or other documentation satisfactory to the
    Administrative Agent evidencing such payment to such
    authority; and



 



    (iii) pay to the Recipient such additional amount or
    amounts as is necessary to ensure that the net amount actually
    received by the Recipient will equal the full amount such
    Recipient would have received had no such withholding or
    deduction been required.



 



    Moreover, if any Taxes are directly asserted against any
    Recipient with respect to any payment received by such Recipient
    hereunder, the Recipient may pay such Taxes and the Payor will
    promptly pay such additional amounts (including any penalties,
    interest or expenses) as shall be necessary in order that the
    net amount received by the Recipient after the payment of such
    Taxes (including any Taxes on such additional amount) shall
    equal the amount such Recipient would have received had such
    Taxes not been asserted. Notwithstanding the foregoing, the
    Payor shall not be obligated to pay any such additional amounts
    pursuant to clause (iii) above or pursuant to the
    immediately preceding sentence to a Bank Investor that is not
    organized under the laws of the United States of America or a
    state thereof if such Bank Investor shall have failed to comply
    with the requirements of paragraph (b) of this
    Section 8.3 as of the time such Taxes are due and payable.



 



    If the Payor fails to pay any Taxes when due to the appropriate
    taxing authority or fails to remit to the Recipient the required
    receipts or other required documentary evidence, the Payor shall
    indemnify the Recipient for any incremental Taxes, interest, or
    penalties that may become payable by any Recipient as a result
    of any such failure.



 



    (b) Each Investor that is not incorporated under the laws
    of the United States of America or a state thereof shall:



 



    (X) (i) on or before the date of any payment by a
    Payor to such Investor, deliver to such Payor, the Agent and the
    Administrative Agent for its Related Group (A) two
    (2) duly completed copies of United States Internal Revenue
    Service Form 1001 or 4224, or successor applicable form, as
    the case may be, certifying that it is entitled to receive
    payments hereunder without deduction or withholding of any
    United States federal income taxes and (B) an Internal
    Revenue Service
    Form W-8
    or W-9, or
    successor applicable form, as the case may be, certifying that
    it is entitled to an exemption from United States backup
    withholding tax;



 



    (ii) deliver to each Payor, the Agent and the
    Administrative Agent for its Related Group two (2) further
    copies of any such form or certification on or before the date
    that any such form or certification expires or becomes obsolete
    and after the occurrence of any event requiring a change in the
    most recent form previously delivered by it to such
    Payor; and



 



    (iii) obtain such extensions of time for filing and
    complete such forms or certifications as may reasonably be
    requested by either Payor, the Agent or the Administrative Agent
    for its Related Group; or



 



    (Y) Each Investor or transferee that is not a
    “bank” under Section 881(c)(3)(A) of the Internal
    Revenue Code thereof shall:



 



    (i) on or before the date it becomes a party hereto (or, in
    the case of a participant, on or before the date such
    participant becomes a participant hereunder), deliver to each
    Payor, the Agent and the Administrative Agent for its Related
    Group (i) a statement under penalties of perjury that such
    Investor or transferee (x) is not a “bank” under
    Section 881(c)(3)(A) of the Internal Revenue Code, is not
    subject to regulatory or other legal requirements as a bank in
    any jurisdiction, and has not been treated as a bank for




    

    50








 






    purposes of any tax, securities law or other filing or
    submission made to any governmental authority, any application
    made to a rating agency or qualification for any exemption from
    tax, securities law or other legal requirements, (y) is not
    a 10-percent shareholder within the meaning of
    Section 811(c)(3)(B) of the Internal Revenue Code and
    (z) is not a controlled foreign corporation receiving
    interest from a related person within the meaning of
    Section 881(c)(3)(C) of the Internal Revenue Code and
    (ii) a properly completed and duly executed Internal
    Revenue Service
    Form W-8
    or applicable successor form;



 



    (ii) deliver to each Payor, the Agent and its
    Administrative Agent two further properly completed and duly
    executed copies of such
    Form W-8
    expires or becomes obsolete or after the occurrence of any event
    requiring a change in the most recent form previously delivered
    by it to such Payor or upon the request of such Payor; and



 



    (iii) obtain such extensions of time for filing and
    completing such forms or certifications as may be reasonably
    requested by either Payor, the Agent or its Administrative Agent;



 



    unless in any such case any change in treaty, law or regulation
    has occurred after the date such Person becomes an Investor
    hereunder which renders all such forms inapplicable or which
    would prevent such Investor from duly completing and delivering
    any such form with respect to it and such Investor so advises
    each Payor, the Agent and its Administrative Agent. Each Person
    that shall become an Investor or a participant of an Investor
    pursuant to subsection 10.6 shall, upon the effectiveness of the
    related transfer, be required to provide all of the forms,
    certifications and statements required pursuant to this
    subsection, provided that in the case of a participant of
    an Investor the obligations of such participant of an Investor
    pursuant to this subsection (b) shall be determined as if
    the participant of an Investor were an Investor except that such
    participant of an Investor shall furnish all such required
    forms, certifications and statements to the Investor from which
    the related participation shall have been purchased.



 



    Section 8.4. Other
    Costs, Expenses and Related Matters. (a) The
    Transferor agrees, upon receipt of a written invoice, to pay or
    cause to be paid, and to save the Investors, the Administrative
    Agents and the Agent harmless against liability for the payment
    of, all reasonable out-of-pocket expenses (including, without
    limitation, attorneys’, accountants’ and other third
    parties’ fees and expenses, any filing fees and expenses
    incurred by officers or employees of any of the Investors, the
    Administrative Agents
    and/or the
    Agent) or intangible, documentary or recording taxes incurred by
    or on behalf of any Investor, any Administrative Agent or the
    Agent (i) in connection with the negotiation, execution,
    delivery and preparation of this Agreement, the other
    Transaction Documents and any documents or instruments delivered
    pursuant hereto and thereto and the transactions contemplated
    hereby or thereby (including, without limitation, the perfection
    or protection of the Transferred Interest) and (ii) from
    time to time (a) relating to any amendments, waivers or
    consents under this Agreement and the other Transaction
    Documents, (b) arising in connection with any
    Investor’s, any Administrative Agent’s, the
    Agent’s or any Collateral Agent’s enforcement or
    preservation of rights (including, without limitation, the
    perfection and protection of the Transferred Interest under this
    Agreement), or (c) arising in connection with any audit,
    dispute, disagreement, litigation or preparation for litigation
    involving this Agreement or any of the other Transaction
    Documents (all of such amounts, collectively,
    “Transaction Costs”).



 



    (b) With respect to any Tranche to which all or any portion
    of the Net Investment held by any of the Investors in a Related
    Group has been allocated, the Transferor shall pay to the
    Administrative Agent for such Related Group, for the account of
    each applicable Investor, on demand any Early Collection Fee due
    on account of the reduction of such Tranche on a day prior to
    the last day of its Tranche Period (or, in the case of a CP
    Tranche Period, on or prior to the maturity date for the
    Commercial Paper allocated to fund or maintain such Net
    Investment).



 



    Section 8.5. Reconveyance
    Under Certain Circumstances. The Transferor agrees to
    accept the reconveyance from the Agent, on behalf of the
    applicable Investors, of the Transferred Interest if the Agent
    or any Administrative Agent notifies Transferor of a material
    breach of any representation or warranty made or deemed made
    pursuant to Article III of this Agreement and Transferor
    shall fail to cure such breach within 15 days (or, in the
    case of the representations and warranties in
    Sections 3.1(d) and 3.1(j), 3 days) of such notice.
    The reconveyance price shall be paid by the Transferor to the
    Agent, for the account of the applicable Investors, as
    applicable, in immediately available funds on such 15th day
    (or 3rd day, if applicable) in an amount equal to the
    Aggregate Unpaids; provided that if such 15th day
    (or 3rd day) is not a Business Day, such reconveyance and
    the related payment shall be made on the next following Business
    Day.




    

    51








 







    ARTICLE IX

    



 




    THE AGENT;
    BANK COMMITMENT; THE ADMINISTRATIVE AGENTS
    



 



    Section 9.1. Authorization
    and Action. (a) Each Investor hereby appoints and
    authorizes the Agent to take such action as agent on its behalf
    and to exercise such powers under this Agreement and the other
    Transaction Documents as are delegated to the Agent by the terms
    hereof and thereof, together with such powers as are reasonably
    incidental thereto. In furtherance, and without limiting the
    generality, of the foregoing, each Investor hereby appoints the
    Agent as its agent to execute and deliver all further
    instruments and documents, and take all further action that the
    Agent may deem necessary or appropriate or that any Investor may
    reasonably request in order to perfect, protect or more fully
    evidence the interests transferred or to be transferred from
    time to time by the Transferor hereunder, or to enable any of
    them to exercise or enforce any of their respective rights
    hereunder, including, without limitation, the execution by the
    Agent as secured party/assignee of such financing or
    continuation statements, or amendments thereto or assignments
    thereof, relative to all or any of the Receivables now existing
    or hereafter arising, and such other instruments or notices, as
    may be necessary or appropriate for the purposes stated
    hereinabove. The Majority Investors may direct the Agent to take
    any such incidental action hereunder. With respect to other
    actions which are incidental to the actions specifically
    delegated to the Agent hereunder, the Agent shall not be
    required to take any such incidental action hereunder, but shall
    be required to act or to refrain from acting (and shall be fully
    protected in acting or refraining from acting) upon the
    direction of the Majority Investors; provided,
    however, the Agent shall not be required to take any
    action hereunder if the taking of such action, in the reasonable
    determination of the Agent, shall be in violation of any
    applicable law, rule or regulation or contrary to any provision
    of this Agreement or shall expose the Agent to liability
    hereunder or otherwise. Upon the occurrence and during the
    continuance of any Termination Event or Potential Termination
    Event, the Agent shall take no action hereunder (other than
    ministerial actions or such actions as are specifically provided
    for herein) without the prior consent of the Majority Investors
    (which consent shall not be unreasonably withheld or delayed).
    The Agent shall not, without the prior written consent of all
    Bank Investors, agree to (i) amend, modify or waive any
    provision of this Agreement in any way which would
    (A) reduce or impair Collections or the payment of Discount
    or fees payable hereunder to the Investors or delay the
    scheduled dates for payment of such amounts, (B) increase
    the Servicing Fee (other than as permitted pursuant to
    Section 6.2(b)), (C) modify any provisions of this
    Agreement or the Receivables Purchase Agreement or the Parent
    Agreement relating to the timing of payments required to be made
    by the Transferor, any Originating Entity, FME KGaA or FMCH or
    the application of the proceeds of such payments,
    (D) permit the appointment of any Person (other than the
    Agent) as successor Collection Agent, (E) release any
    property from the lien provided by this Agreement (other than as
    expressly contemplated herein) or (F) extend or permit the
    extension of the Commitment Termination Date without the consent
    of each Bank Investor. The Agent shall not, without the prior
    written consent of each Administrative Agent, agree to amend,
    modify or waive any provision of this Agreement, the
    Transferring Affiliate Letter, the BMA Transfer Agreement, the
    Receivables Purchase Agreement or the Parent Agreement. The
    Agent shall not agree to any amendment of this Agreement which
    increases the dollar amount of any Investor’s Commitment
    without the prior consent of such Investor. In addition, the
    Agent shall not agree to any amendment of this Agreement not
    specifically described in the two preceding sentences without
    the consent of the Majority Investors (which consent shall not
    be unreasonably withheld or delayed). In the event the Agent
    requests any Investor’s consent pursuant to the foregoing
    provisions and the Agent does not receive a consent (either
    positive or negative) from such Investor within 10 Business Days
    of such Investor’s receipt of such request, then such
    Investor (and its percentage interest hereunder) shall be
    disregarded in determining whether the Agent shall have obtained
    sufficient consent hereunder.



 



    (b) The Agent shall exercise such rights and powers vested
    in it by this Agreement and the other Transaction Documents, and
    use the same degree of care and skill in their exercise, as a
    prudent person would exercise or use under the circumstances in
    the conduct of such person’s own affairs.



 



    SECTION 9.2. Agent’s Reliance, Etc. Neither the
    Agent nor any of its directors, officers, agents or employees
    shall be liable for any action taken or omitted to be taken by
    it or them as Agent under or in connection with this Agreement
    or any of the other Transaction Documents, except for its or
    their own gross negligence or willful misconduct. Without
    limiting the foregoing, the Agent: (i) may consult with
    legal counsel (including counsel for any Parent Group Member),
    independent public accountants and other experts selected by it
    and shall not be liable for any action taken or omitted to be
    taken in good faith by it in accordance with the advice of such
    counsel, accountants or experts; (ii) makes no warranty or
    representation to any Investor and shall not be responsible to
    any Investor for any statements, warranties or representations
    made in or in connection with this Agreement; (iii) shall
    not have any duty to ascertain or to inquire as to the
    performance or observance of any of the terms, covenants or
    conditions of this Agreement or any of the other Transaction
    Documents on the part of any Parent Group Member or the
    Collection Agent or to inspect the property (including the books
    and records) of any Parent Group Member or




    

    52








 






    the Collection Agent; (iv) shall not be responsible to any
    Investor for the due execution, legality, validity,
    enforceability, genuineness, sufficiency or value of this
    Agreement, any of the other Transaction Documents or any other
    instrument or document furnished pursuant hereto or thereto; and
    (v) shall incur no liability under or in respect of this
    Agreement or any of the other Transaction Documents by acting
    upon any notice (including notice by telephone), consent,
    certificate or other instrument or writing (which may be by
    telex) believed by it to be genuine and signed or sent by the
    proper party or parties.



 



    Section 9.3. Credit
    Decision. Each Investor acknowledges that it has,
    independently and without reliance upon the Agent, any
    Administrative Agent, any Affiliate of an Administrative Agent
    or any other Investor and based upon such documents and
    information as it has deemed appropriate, made its own
    evaluation and decision to enter into this Agreement and the
    other Transaction Documents to which it is a party and, if it so
    determines, to accept the transfer to the Agent on its behalf of
    any undivided ownership interest in the Affected Assets
    hereunder. Each Investor also acknowledges that it will,
    independently and without reliance upon the Agent, any of the
    Agent’s Affiliates or any other Investor and based on such
    documents and information as it shall deem appropriate at the
    time, continue to make its own decisions in taking or not taking
    action under this Agreement and the other Transaction Documents
    to which it is a party.



 



    Section 9.4. Indemnification
    of the Agent. The Bank Investors agree to indemnify the
    Agent (to the extent not reimbursed by the Transferor), ratably
    in accordance with their respective Commitments, from and
    against any and all liabilities, obligations, losses, damages,
    penalties, actions, judgments, suits, costs, expenses or
    disbursements of any kind or nature whatsoever which may be
    imposed on, incurred by, or asserted against the Agent in any
    way relating to or arising out of this Agreement or any action
    taken or omitted by the Agent, any of the other Transaction
    Documents hereunder or thereunder, provided that the Bank
    Investors shall not be liable for any portion of such
    liabilities, obligations, losses, damages, penalties, actions,
    judgments, suits, costs, expenses or disbursements resulting
    from the Agent’s gross negligence or willful misconduct.
    Without limitation of the foregoing, the Bank Investors agree to
    reimburse the Agent, ratably in accordance with their respective
    Commitments, promptly upon demand for any out-of-pocket expenses
    (including counsel fees) incurred by the Agent in connection
    with the administration, modification, amendment or enforcement
    (whether through negotiations, legal proceedings or otherwise)
    of, or legal advice in respect of rights or responsibilities
    under, this Agreement and the other Transaction Documents, to
    the extent that such expenses are incurred in the interests of
    or otherwise in respect of the Bank Investors hereunder
    and/or
    thereunder and to the extent that the Agent is not reimbursed
    for such expenses by the Transferor.



 



    Section 9.5. Successor
    Agent. The Agent may resign at any time by giving
    written notice thereof to each Investor and the Transferor and
    may be removed at any time with cause by the Majority Investors.
    Upon any such resignation or removal, the Majority Investors
    shall appoint a successor Agent. Each Investor agrees that it
    shall not unreasonably withhold or delay its approval of the
    appointment of a successor Agent. If no such successor Agent
    shall have been so appointed, and shall have accepted such
    appointment, within 30 days after the retiring Agent’s
    giving of notice of resignation or the Majority Investors’
    removal of the retiring Agent, then the retiring Agent may, on
    behalf of the Investors, appoint a successor Agent which
    successor Agent shall be either (i) a commercial bank
    organized under the laws of the United States or of any state
    thereof and have a combined capital and surplus of at least
    $50,000,000 or (ii) an Affiliate of such a bank. Upon the
    acceptance of any appointment as Agent hereunder by a successor
    Agent, such successor Agent shall thereupon succeed to and
    become vested with all the rights, powers, privileges and duties
    of the retiring Agent, and the retiring Agent shall be
    discharged from its duties and obligations under this Agreement.
    After any retiring Agent’s resignation or removal hereunder
    as Agent, the provisions of this Article IX shall continue
    to inure to its benefit as to any actions taken or omitted to be
    taken by it while it was Agent under this Agreement.



 



    Section 9.6. Payments
    by the Agent. All amounts received by the Agent on
    behalf of the Investors shall be paid by the Agent to the
    Investors (at their respective accounts specified in their
    respective Assignment and Assumption Agreements) on the Business
    Day received by the Agent, unless such amounts are received
    after 12:00 noon on such Business Day, in which case the
    Agent shall use its reasonable efforts to pay such amounts to
    the Investors on such Business Day, but, in any event, shall pay
    such amounts to the Investors not later than the following
    Business Day. All amounts received by the Agent hereunder on
    behalf of the Investors shall be allocated among the Related
    Groups in accordance with Sections 2.5
    and/or 2.6,
    as applicable. For purposes of the foregoing, the Agent shall be
    deemed to be a member of the Related Group that includes
    Paradigm.



 



    Section 9.7. Bank
    Commitment; Assignment to Bank Investors.



 



    (a) Bank Commitment. At any time on or prior to the
    Commitment Termination Date, in the event that a Conduit
    Investor does not effect an Incremental Transfer as requested
    under Section 2.2(a), then at any time, the Transferor
    shall have the right to require such Conduit Investor to assign
    its interest in the Net Investment in whole




    

    53








 






    to the Bank Investors in its Related Group pursuant to this
    Section 9.7. In addition, at any time on or prior to the
    Commitment Termination Date, (i) upon the occurrence of a
    Termination Event that results in the Termination Date or
    (ii) if a Conduit Investor elects to give notice to the
    Transferor of a Reinvestment Termination Date, the Transferor
    hereby requests and directs that such Conduit Investor assign
    its interest in the Net Investment in whole to the Bank
    Investors in its Related Group pursuant to this Section 9.7
    and the Transferor hereby agrees to pay the amounts described in
    Section 9.7(d) below. Provided that the Net Asset Test is
    satisfied, upon any such election by a Conduit Investor or any
    such request by the Transferor to such Conduit Investor, such
    Conduit Investor shall make such assignment and the Bank
    Investors in its Related Group shall accept such assignment and
    shall assume all of such Conduit Investor’s obligations
    hereunder. In connection with any assignment from a Conduit
    Investor to the Bank Investors in its Related Group pursuant to
    this Section 9.7, each Bank Investor shall, on the date of
    such assignment, pay to such Conduit Investor an amount equal to
    its Assignment Amount. Upon any assignment by a Conduit Investor
    to the Bank Investors in its Related Group as contemplated
    hereunder, such Conduit Investor shall cease to make any
    additional Incremental Transfers hereunder.



 



    (b) Assignment. No Bank Investor may assign all or a
    portion of its interests in the Net Investment, the Receivables,
    and Collections, Related Security and Proceeds with respect
    thereto and its rights and obligations hereunder to any Person
    unless approved in writing by the Administrative Agent for its
    Related Group, on behalf of the related Conduit Investor.
    Without limiting the generality of the foregoing, it is
    understood for the avoidance of doubt that an Administrative
    Agent may condition any approval on its receipt of written
    confirmation from each applicable Rating Agency that such
    assignment will not result in the reduction or withdrawal of the
    then current rating of the Commercial Paper issued by the
    related Conduit Investor. In the case of an assignment by a
    Conduit Investor to the Bank Investors or by a Bank Investor to
    another Person, the assignor shall deliver to the assignee(s) an
    Assignment and Assumption Agreement in substantially the form of
    Exhibit G attached hereto, duly executed, assigning to the
    assignee a pro rata interest in the Net Investment, the
    Receivables, and Collections, Related Security and Proceeds with
    respect thereto and the assignor’s rights and obligations
    hereunder and the assignor shall promptly execute and deliver
    all further instruments and documents, and take all further
    action, that the assignee may reasonably request, in order to
    protect, or more fully evidence the assignee’s right, title
    and interest in and to such interest and to enable the Agent, on
    behalf of such assignee, to exercise or enforce any rights
    hereunder and under the other Transaction Documents to which
    such assignor is or, immediately prior to such assignment, was a
    party. Upon any such assignment, (i) the assignee shall
    have all of the rights and obligations of the assignor hereunder
    and under the other Transaction Documents to which such assignor
    is or, immediately prior to such assignment, was a party with
    respect to such interest for all purposes, it being understood
    that the Bank Investors, as assignees, shall (x) be
    obligated to fund Incremental Transfers under
    Section 2.2(a) in accordance with the terms thereof,
    notwithstanding that related Conduit Investor was not so
    obligated and (y) not have the right to elect the
    commencement of the amortization of the Net Investment pursuant
    to the definition of “Reinvestment Termination Date”,
    notwithstanding that the related Conduit Investor had such
    right) and (ii) the assignor shall relinquish its rights
    with respect to such interest for all purposes of this Agreement
    and under the other Transaction Documents to which such assignor
    is or, immediately prior to such assignment, was a party. No
    such assignment shall be effective unless a fully executed copy
    of the related Assignment and Assumption Agreement shall be
    delivered to the Agent, the Administrative Agent for the
    applicable Related Group and the Transferor. All costs and
    expenses of the Agent, the applicable Administrative Agent and
    the assignor and assignee incurred in connection with any
    assignment hereunder shall be borne by the Transferor and not by
    the assignor or any such assignee. No Bank Investor shall assign
    any portion of its Commitment hereunder without also
    simultaneously assigning an equal portion of its interest in the
    applicable Liquidity Provider Agreement.



 



    (c) Effects of Assignment. By executing and
    delivering an Assignment and Assumption Agreement, the assignor
    and assignee thereunder confirm to and agree with each other and
    the other parties hereto as follows: (i) other than as
    provided in such Assignment and Assumption Agreement, the
    assignor makes no representation or warranty and assumes no
    responsibility with respect to any statements, warranties or
    representations made in or in connection with this Agreement,
    the other Transaction Documents or any other instrument or
    document furnished pursuant hereto or thereto or the execution,
    legality, validity, enforceability, genuineness, sufficiency or
    value of this Agreement, the other Transaction Documents or any
    such other instrument or document; (ii) the assignor makes
    no representation or warranty and assumes no responsibility with
    respect to the financial condition of the Transferor, any Parent
    Group Member or the Collection Agent or the performance or
    observance by the Transferor, any Parent Group Member or the
    Collection Agent of any of their respective obligations under
    this Agreement, the Receivables Purchase Agreement, the
    Transferring Affiliate Letter, the BMA Transfer Agreement, the
    Parent Agreement, the other Transaction Documents or any other
    instrument or document furnished pursuant hereto;
    (iii) such assignee confirms that it has received a copy of
    this Agreement, the Receivables Purchase Agreement, the
    Transferring Affiliate Letter, the BMA Transfer Agreement, the
    Parent Agreement, and such other instruments, documents and
    information as it has deemed appropriate to make its own credit
    analysis and decision to enter into such Assignment




    

    54








 






    and Assumption Agreement and to purchase such interest;
    (iv) such assignee will, independently and without reliance
    upon the Agent, any Administrative Agent, or any of their
    respective Affiliates, or the assignor and based on such
    agreements, documents and information as it shall deem
    appropriate at the time, continue to make its own credit
    decisions in taking or not taking action under this Agreement
    and the other Transaction Documents; (v) such assignee
    appoints and authorizes the Agent to take such action as agent
    on its behalf and to exercise such powers under this Agreement,
    the other Transaction Documents and any other instrument or
    document furnished pursuant hereto or thereto as are delegated
    to the Agent by the terms hereof or thereof, together with such
    powers as are reasonably incidental thereto and to enforce its
    respective rights and interests in and under this Agreement, the
    other Transaction Documents, the Receivables, the Contracts and
    the Related Security; (vi) such assignee appoints and
    authorizes the applicable Administrative Agent to take such
    action as agent on its behalf and to exercise such powers under
    this Agreement, the other Transaction Documents and any other
    instrument or document furnished pursuant hereto or thereto as
    are delegated to the Administrative Agent by the terms hereof or
    thereof, together with such powers as are reasonably incidental
    thereto and to enforce its respective rights and interests in
    and under this Agreement, the other Transaction Documents, the
    Receivables, the Contracts and the Related Security,
    (vii) such assignee agrees that it will perform in
    accordance with their terms all of the obligations which by the
    terms of this Agreement and the other Transaction Documents are
    required to be performed by it as the assignee of the assignor;
    and (viii) such assignee agrees that it will not institute
    against any Conduit Investor any proceeding of the type referred
    to in Section 10.9 prior to the date which is one year and
    one day after the payment in full of all Commercial Paper issued
    by such Conduit Investor.



 



    (d) Transferor’s Obligation to Pay Certain Amounts;
    Additional Assignment Amount. The Transferor shall pay to
    the Administrative Agent for a Conduit Investor or, in the case
    of GBFC, to such Conduit Investor, for the account of such
    Conduit Investor, in connection with any assignment by such
    Conduit Investor to the Bank Investors in its Related Group
    pursuant to this Section 9.7, an aggregate amount equal to
    all Discount to accrue through the end of each outstanding
    Tranche Period plus all other Aggregate Unpaids (other than
    the Net Investment) owing to such Conduit Investor. To the
    extent that such Discount relates to interest or discount on
    Related Commercial Paper, if the Transferor fails to make
    payment of such amounts at or prior to the time of assignment by
    such Conduit Investor to the Bank Investors in its Related
    Group, such amount shall be paid by such Bank Investors (in
    accordance with their respective Pro Rata Shares) to such
    Conduit Investor as additional consideration for the interests
    assigned to such Bank Investors and the amount of the “Net
    Investment” hereunder held by such Bank Investors shall be
    increased by an amount equal to the additional amount so paid by
    such Bank Investors.



 



    (e) Administration of Agreement After Assignment.
    After any assignment by a Conduit Investor to the Bank Investors
    in its Related Group pursuant to this Section 9.7 (and the
    payment of all amounts owing to such Conduit Investor in
    connection therewith), all rights of the related Collateral
    Agent set forth herein shall be deemed to be afforded to the
    Administrative Agent for such Related Group on behalf of such
    Bank Investors instead of such Collateral Agent.



 



    (f) Payments. After any assignment by a Conduit
    Investor to the Bank Investors in its Related Group pursuant to
    this Section 9.7, all payments to be made hereunder by the
    Transferor or the Collection Agent to such Conduit Investor
    shall be made to the applicable Administrative Agent’s
    account as such account shall have been notified to the
    Transferor and the Collection Agent.



 



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




    

    55








 






    the outstanding Commercial Paper issued to fund the portion of
    the Net Investment being assigned to such Bank Investor, as
    reasonably determined by the applicable Administrative Agent.
    Notwithstanding anything contained herein to the contrary, upon
    any such assignment to a downgraded Bank Investor as
    contemplated pursuant to the immediately preceding sentence, the
    aggregate available amount of the applicable Related Group
    Limit, solely as it relates to new Incremental Transfers to such
    Conduit Investor, shall be reduced by the amount of unused
    Commitment of such downgraded Bank Investor; it being understood
    and agreed, that nothing in this sentence or the two preceding
    sentences shall affect or diminish in any way any such
    downgraded Bank Investor’s Commitment to the Transferor or
    such downgraded Bank Investor’s other obligations and
    liabilities hereunder and under the other Transaction Documents.



 



    Section 9.8. Appointment
    of Administrative Agents. (a) Each Investor in a
    Related Group hereby appoints and authorizes the Administrative
    Agent for its Related Group to take such action as agent on its
    behalf and to exercise such powers under this Agreement and the
    other Transaction Documents as are delegated to such
    Administrative Agent by the terms hereof and thereof, together
    with such powers as are reasonably incidental thereto. In
    furtherance, and without limiting the generality, of the
    foregoing, each Investor in a Related Group hereby appoints the
    Administrative Agent for its Related Group as its agent to
    execute and deliver all further instruments and documents, and
    take all further action that such Administrative Agent may deem
    necessary or appropriate or that any Investor may reasonably
    request to enable any of them to exercise or enforce any of
    their respective rights hereunder. Bank Investors representing
    at least 66 and 2/3% of the aggregate Commitments of all Bank
    Investors in a Related Group (the “Group Majority
    Investors” for such Related Group) may direct the
    Administrative Agent for such Related Group to take any such
    incidental action hereunder. With respect to other actions which
    are incidental to the actions specifically delegated to an
    Administrative Agent hereunder, such Administrative Agent shall
    not be required to take any such incidental action hereunder,
    but shall be required to act or to refrain from acting (and
    shall be fully protected in acting or refraining from acting)
    upon the direction of the Group Majority Investors;
    provided, however, no Administrative Agent shall
    be required to take any action hereunder if the taking of such
    action, in the reasonable determination of such Administrative
    Agent, shall be in violation of any applicable law, rule or
    regulation or contrary to any provision of this Agreement or
    shall expose such Administrative Agent to liability hereunder or
    otherwise. Upon the occurrence and during the continuance of any
    Termination Event or Potential Termination Event, the
    Administrative Agent for a Related Group shall take no action
    hereunder (other than ministerial actions or such actions as are
    specifically provided for herein) without the prior consent of
    the Group Majority Investors (which consent shall not be
    unreasonably withheld or delayed). The Administrative Agent for
    a Related Group shall not, without the prior written consent of
    all Bank Investor, in such Related Group, agree to
    (i) amend, modify or waive any provision of this Agreement
    in any way which would (A) reduce or impair Collections or
    the payment of Discount or fees payable hereunder to the Bank
    Investors, in such Related Group or delay the scheduled dates
    for payment of such amounts, (B) increase the Servicing Fee
    (other than as permitted pursuant to Section 6.2(b)),
    (C) modify any provisions of this Agreement or the
    Receivables Purchase Agreement or the Parent Agreement relating
    to the timing of payments required to be made by the Transferor,
    any Originating Entity, FME KGaA or FMCH or the application of
    the proceeds of such payments, (D) permit the appointment
    of any Person (other than the Agent) as successor Collection
    Agent, (E) release any property from the lien provided by
    this Agreement (other than as expressly contemplated herein) or
    (F) extend or permit the extension of the Commitment
    Termination Date without the consent of each Bank Investor, in
    such Related Group. The Administrative Agent for a Related Group
    shall not agree to any amendment of this Agreement which
    increases the dollar amount of the Commitment of a Bank Investor
    in such Related Group without the prior consent of such Bank
    Investor. In addition, no Administrative Agent shall agree to
    any amendment of this Agreement not specifically described in
    the two preceding sentences without the consent of the related
    Group Majority Investors (which consent shall not be
    unreasonably withheld or delayed). In the event an
    Administrative Agent requests any Investor’s consent
    pursuant to the foregoing provisions and such Administrative
    Agent does not receive a consent (either positive or negative)
    from such Investor within 10 Business Days of such
    Investor’s receipt of such request, then such Investor (and
    its percentage interest hereunder) shall be disregarded in
    determining whether such Administrative Agent shall have
    obtained sufficient consent hereunder.



 



    (b) Each Administrative Agent shall exercise such rights
    and powers vested in it by this Agreement and the other
    Transaction Documents, and use the same degree of care and skill
    in their exercise, as a prudent person would exercise or use
    under the circumstances in the conduct of such person’s own
    affairs.



 



    Section 9.9. Administrative
    Agent’s Reliance, Etc. Neither any Administrative
    Agent nor any directors, officers, agents or employees of an
    Administrative Agent shall be liable for any action taken or
    omitted to be taken by it or them as Administrative Agent under
    or in connection with this Agreement or any of the other
    Transaction Documents, except for its or their own gross
    negligence or willful misconduct. Without limiting the
    foregoing, each Administrative Agent: (i) may consult with
    legal counsel (including counsel for any Parent Group Member),




    

    56








 






    independent public accountants and other experts selected by it
    and shall not be liable for any action taken or omitted to be
    taken in good faith by it in accordance with the advice of such
    counsel, accountants or experts; (ii) makes no warranty or
    representation to any Investor and shall not be responsible to
    any Investor for any statements, warranties or representations
    made in or in connection with this Agreement; (iii) shall
    not have any duty to ascertain or to inquire as to the
    performance or observance of any of the terms, covenants or
    conditions of this Agreement or any of the other Transaction
    Documents on the part of any Parent Group Member or the
    Collection Agent or to inspect the property (including the books
    and records) of any Parent Group Member or the Collection Agent;
    (iv) shall not be responsible to any Investor for the due
    execution, legality, validity, enforceability, genuineness,
    sufficiency or value of this Agreement, any of the other
    Transaction Documents or any other instrument or document
    furnished pursuant hereto or thereto; and (v) shall incur
    no liability under or in respect of this Agreement or any of the
    other Transaction Documents by acting upon any notice (including
    notice by telephone), consent, certificate or other instrument
    or writing (which may be by telex) believed by it to be genuine
    and signed or sent by the proper party or parties.



 



    Section 9.10. Indemnification
    of the Administrative Agents. The Bank Investors, in
    each Related Group agree to indemnify the Administrative Agent
    for such Related Group (to the extent not reimbursed by the
    Transferor), ratably in accordance with their Pro Rata Shares,
    from and against any and all liabilities, obligations, losses,
    damages, penalties, actions, judgments, suits, costs, expenses
    or disbursements of any kind or nature whatsoever which may be
    imposed on, incurred by, or asserted against such Administrative
    Agent in any way relating to or arising out of this Agreement or
    any action taken or omitted by such Administrative Agent, any of
    the other Transaction Documents hereunder or thereunder,
    provided that the Bank Investors, in a Related Group shall not
    be liable for any portion of such liabilities, obligations,
    losses, damages, penalties, actions, judgments, suits, costs,
    expenses or disbursements resulting from the applicable
    Administrative Agent’s gross negligence or willful
    misconduct. Without limitation of the foregoing, the Bank
    Investors, in each Related Group agree to reimburse the
    Administrative Agent for such Related Group, ratably in
    accordance with their Pro Rata Shares, promptly upon demand for
    any out-of-pocket expenses (including counsel fees) incurred by
    such Administrative Agent in connection with the administration,
    modification, amendment or enforcement (whether through
    negotiations, legal proceedings or otherwise) of, or legal
    advice in respect of rights or responsibilities under, this
    Agreement and the other Transaction Documents, to the extent
    that such expenses are incurred in the interests of or otherwise
    in respect of such Bank Investors, hereunder
    and/or
    thereunder and to the extent that such Administrative Agent is
    not reimbursed for such expenses by the Transferor.



 



    Section 9.11. Successor
    Administrative Agents. Any Administrative Agent may
    resign at any time by giving written notice thereof to the
    Agent, each Investor in its Related Group and the Transferor and
    may be removed at any time with cause by the applicable Group
    Majority Investors. Upon any such resignation or removal, the
    Group Majority Investors for such Related Group shall appoint a
    successor Administrative Agent. Each Investor agrees that it
    shall not unreasonably withhold or delay its approval of the
    appointment of a successor Administrative Agent. If no such
    successor Administrative Agent shall have been so appointed for
    such Related Group, and shall have accepted such appointment,
    within 30 days after the retiring Administrative
    Agent’s giving of notice of resignation or the Group
    Majority Investors’ removal of the retiring Administrative
    Agent, then the retiring Administrative Agent may, on behalf of
    the Investors in such Related Group, appoint a successor
    Administrative Agent for such Related Group which successor
    Administrative Agent shall be either (i) a commercial bank
    having a combined capital and surplus of at least $50,000,000 or
    (ii) an Affiliate of such a bank. Upon the acceptance of
    any appointment as Administrative Agent hereunder by a successor
    Administrative Agent, such successor Administrative Agent shall
    thereupon succeed to and become vested with all the rights,
    powers, privileges and duties of the retiring Administrative
    Agent, and the retiring Administrative Agent shall be discharged
    from its duties and obligations under this Agreement. After any
    retiring Administrative Agent’s resignation or removal
    hereunder as Administrative Agent, the provisions of this
    Article IX shall continue to inure to its benefit as to any
    actions taken or omitted to be taken by it while it was
    Administrative Agent under this Agreement.



 



    Section 9.12. Payments
    by the Administrative Agents. Unless specifically
    allocated to an Investor pursuant to the terms of this
    Agreement, all amounts received by an Administrative Agent on
    behalf of the Investors in its Related Group shall be paid by
    such Administrative Agent to the Investors in its Related Group
    (at their respective accounts specified in their respective
    Assignment and Assumption Agreements) in accordance with their
    respective related pro rata interests in the Net Investment on
    the Business Day received by such Administrative Agent, unless
    such amounts are received after 12:00 noon on such Business Day,
    in which case such Administrative Agent shall use its reasonable
    efforts to pay such amounts to the Investors in its Related
    Group on such Business Day, but, in any event, shall pay such
    amounts to such Investors in accordance with their respective
    related pro rata interests in the Net Investment not later than
    the following Business Day.




    

    57








 







    ARTICLE X

    



 




    MISCELLANEOUS
    



 



    Section 10.1. Term
    of Agreement. This Agreement shall terminate on the
    date following the Termination Date upon which the Net
    Investment has been reduced to zero, all accrued Discount and
    Servicing Fees have been paid in full and all other Aggregate
    Unpaids have been paid in full, in each case, in cash;
    provided, however, that (i) the rights and
    remedies of the Agent, the Investors and the Administrative
    Agents with respect to any representation and warranty made or
    deemed to be made by the Transferor pursuant to this Agreement,
    (ii) the indemnification and payment provisions of
    Article VIII, and (iii) the agreement set forth in
    Section 10.9 hereof, shall be continuing and shall survive
    any termination of this Agreement.



 



    Section 10.2. Waivers;
    Amendments. No failure or delay on the part of the
    Agent, any Investor or any Administrative Agent in exercising
    any power, right or remedy under this Agreement shall operate as
    a waiver thereof, nor shall any single or partial exercise of
    any such power, right or remedy preclude any other further
    exercise thereof or the exercise of any other power, right or
    remedy. The rights and remedies herein provided shall be
    cumulative and nonexclusive of any rights or remedies provided
    by law. Any provision of this Agreement may be amended or waived
    if, but only if, in the case of any amendment, such amendment is
    in writing and is signed by the Transferor, the Agent, each
    Administrative Agent and the Majority Investors and in the case
    of any waiver, such waiver is granted in writing by each
    Administrative Agent. Without limiting the generality of the
    foregoing, it is understood for the avoidance of doubt that an
    Administrative Agent may condition its consent to any amendment
    or waiver on its receipt of written confirmation from S&P
    and Moody’s that such amendment or waiver will not result
    in the reduction or withdrawal of the then current rating of the
    Commercial Paper issued by its related Conduit Investor.



 



    Section 10.3. Notices. Except
    as provided below, all communications and notices provided for
    hereunder shall be in writing (including telecopy or electronic
    facsimile transmission or similar writing) and shall be given to
    the other party at its address or telecopy number set forth
    below or at such other address or telecopy number as such party
    may hereafter specify for the purposes of notice to such party.
    Each such notice or other communication shall be effective
    (i) if given by telecopy when such telecopy is transmitted
    to the telecopy number specified in this Section 10.3 and
    confirmation is received, (ii) if given by mail 3 Business
    Days following such posting, postage prepaid,
    U.S. certified or registered, (iii) if given by
    overnight courier, one (1) Business Day after deposit
    thereof with a national overnight courier service, or
    (iv) if given by any other means, when received at the
    address specified in this Section 10.3. However, anything
    in this Section to the contrary notwithstanding, the Transferor
    hereby authorizes each Investor, each Administrative Agent and
    the Agent to effect Transfers, Tranche Period and
    Tranche Rate selections based on telephonic notices made by
    any Person which such Investor, such Administrative Agent or the
    Agent, as applicable, in good faith believes to be acting on
    behalf of the Transferor. The Transferor agrees to deliver
    promptly to each such Investor or Administrative Agent or the
    Agent, as applicable, a written confirmation of each telephonic
    notice directed to such Person signed by an authorized officer
    of Transferor. However, the absence of such confirmation shall
    not affect the validity of such notice. If the written
    confirmation differs in any material respect from the action
    taken by the Agent or the applicable Investor or Administrative
    Agent, the records of such Investor or Administrative Agent or
    the Agent, as applicable shall govern absent manifest error.



 



    If to the Transferor:



 



    (NMC Funding Corporation)




    920 Winter Street




    Waltham, MA 02451




    Telephone:
    (781) 699-2668




    Telecopy:
    (781) 699-9756




    Attn: Mark Fawcett




    Payment Information:




    Chase Manhattan Bank, N.A.




    ABA
    021-000-021




    Account
    323-0-76823



 



    If to the Collection Agent:



 



    National Medical Care, Inc.




    920 Winter Street




    Waltham, MA 02451




    Telephone:
    (781) 699-2668




    Telecopy:
    (781) 699-9756




    Attn: Mark Fawcett




    

    58








 






    If to the Agent:



 



    WestLB AG, New York Branch




    1211 Avenue of the Americas




    New York, New York 10036




    Attention: Asset Securitization Group




    Telephone:
    (212) 852-6000




    Telecopy:
    (212) 597-1423



 



    If to Paradigm:



 




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




    6525 Morrison Boulevard Suite 318




    Charlotte, North Carolina 28211




    Attention: Douglas Johnson




    Telephone:
    704-365-0569




    Telecopy:
    704-365-1362



 



    If to the Administrative Agent for Paradigm:



 



    c/o WestLB
    AG, New York Branch




    1211 Avenue of the Americas




    New York, New York 10036




    Attention: Asset Securitization Group




    Telephone:
    (212) 852-6000




    Telecopy:
    (212) 597-1423



 



    If to GBFC:



 



    Giro Balanced-Funding Corporation




    c/o Global
    Securitization Services




    68 South Service Road, Suite 120




    Melville, NY 11747




    Attention: Damian Perez




    Tel: 631/587-4700




    Telecopy: 212/302-8767



 



    If to BayernLB:



 



    Bayerische Landesbank, New York Branch




    560 Lexington Avenue




    New York, New York 10022




    Attention: Customer Securitization




    Tel: 212/310-9878




    Telecopy: 212/230-9020



 



    If to Liberty Street:



 



    c/o Global
    Securitization Services, LLC




    68 South Service Road, Suite 120




    Melville, NY 11747




    Attention: Andrew Stidd




    Telephone:
    (631) 587-4700




    Telecopy:
    (212) 302-8767



 



    If to the Administrative Agent for Liberty Street:



 



    The Bank of Nova Scotia




    One Liberty Plaza




    New York, NY 10006




    Attention: Michael Eden




    Tel: 212/225-5237




    Fax: 212/225-5274




    

    59








 






    with a copy to:



 



    The Bank of Nova Scotia




    One Liberty Plaza




    New York, NY 10006




    Attention: Vilma Pindling




    Tel: 212/225-5410




    Fax: 212/225-6465



 



    If to the Bank Investors, at their respective addresses set
    forth on Schedule I or in the Assignment and Assumption
    Agreement pursuant to which it became a party hereto.



 



    Section 10.4. Governing
    Law; Submission to Jurisdiction; Integration.



 



    (a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
    ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE
    TRANSFEROR HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF
    THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
    NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN THE CITY OF
    NEW YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR
    RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
    HEREBY. Each of the Transferor and the Collection Agent hereby
    irrevocably waives, to the fullest extent it may effectively do
    so, any objection which it may now or hereafter have to the
    laying of the venue of any such proceeding brought in such a
    court and any claim that any such proceeding brought in such a
    court has been brought in an inconvenient forum. Nothing in this
    Section 10.4 shall affect the right of any Investor to
    bring any action or proceeding against the Transferor or the
    Collection Agent or any of their respective properties in the
    courts of other jurisdictions.



 



    (b) EACH OF THE PARTIES HERETO HEREBY WAIVES ANY RIGHT TO
    HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
    SOUNDING IN CONTRACT, TORT OR OTHERWISE AMONG ANY OF THEM
    ARISING OUT OF, CONNECTED WITH, RELATING TO OR INCIDENTAL TO THE
    RELATIONSHIP BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT OR
    THE OTHER TRANSACTION DOCUMENTS.



 



    (c) This Agreement contains the final and complete
    integration of all prior expressions by the parties hereto with
    respect to the subject matter hereof and shall constitute the
    entire Agreement among the parties hereto with respect to the
    subject matter hereof superseding all prior oral or written
    understandings.



 



    (d) The Transferor and NMC each hereby appoint Arent Fox
    LLP, located at 1675 Broadway, New York, New York 10019 as
    the authorized agent upon whom process may be served in any
    action arising out of or based upon this Agreement, the other
    Transaction Documents to which such Person is a party or the
    transactions contemplated hereby or thereby that may be
    instituted in the United States District Court for the Southern
    District of New York and of any New York State Court sitting in
    the City of New York by any Administrative Agent, the Agent, any
    Investor, any Collateral Agent or any assignee of any of them.



 



    Section 10.5. Severability;
    Counterparts. This Agreement may be executed in any
    number of counterparts and by different parties hereto in
    separate counterparts, each of which when so executed shall be
    deemed to be an original and all of which when taken together
    shall constitute one and the same Agreement. Any provisions of
    this Agreement which are prohibited or unenforceable in any
    jurisdiction shall, as to such jurisdiction, be ineffective to
    the extent of such prohibition or unenforceability without
    invalidating the remaining provisions hereof, and any such
    prohibition or unenforceability in any jurisdiction shall not
    invalidate or render unenforceable such provision in any other
    jurisdiction.



 



    Section 10.6. Successors
    and Assigns. (a) This Agreement shall be binding
    on the parties hereto and their respective successors and
    assigns; provided, however, that neither the
    Transferor nor the Collection Agent may assign any of its rights
    or delegate any of its duties hereunder or under any of the
    other Transaction Documents to which it is a party without the
    prior written consent of each Administrative Agent. No provision
    of this Agreement shall in any manner restrict the ability of
    any Conduit Investor, any Bank Investor to assign, participate,
    grant security interests in, or otherwise transfer any portion
    of the Transferred Interest.



 



    (b) Each of the Transferor and the Collection Agent hereby
    agrees and consents to the assignment by any Conduit Investor
    from time to time of all or any part of its rights under,
    interest in and title to this Agreement and the Transferred
    Interest to any Liquidity Provider for such Conduit Investor. In
    addition, each of the Transferor and the Collection Agent hereby
    consents to and acknowledges the assignment by any Conduit
    Investor of all of its rights under, interest in and title to
    this Agreement and the Transferred Interest to the related
    Collateral Agent.




    

    60








 






    Section 10.7. Waiver
    of Confidentiality. The Transferor hereby consents to
    the disclosure of any non-public information with respect to it
    received by any Conduit Investor, the Agent, any Bank Investor
    or any Administrative Agent to any of the Conduit Investors, the
    Agent, any nationally recognized rating agency rating the
    Commercial Paper of such Conduit Investor, any Administrative
    Agent, any Collateral Agent, any Bank Investor or potential Bank
    Investor, any Liquidity Provider or any Credit Support Provider
    in relation to this Agreement.



 



    Section 10.8. Confidentiality
    Agreement. (a) Each of the parties hereto hereby
    agrees that, from the commencement of discussions with respect
    to the transactions contemplated by the Transaction Documents
    (the “Transaction”), each of the parties hereto
    (and each of their respective, and their respective affiliates,
    employees, officers, directors, advisors, representatives and
    agents) are permitted to disclose to any and all Persons,
    without limitation of any kind, the structure and tax aspects
    (as such terms are used in Internal Revenue Code
    Sections 6011, 6111 and 6112 and the regulations
    promulgated thereunder) of the Transaction, and all materials of
    any kind (including opinions or other tax analyses) that are
    provided to any party related to such structure and tax aspects.
    In this regard, the parties hereto acknowledge and agree that
    the disclosure of the structure or tax aspects of the
    Transaction is not limited in any way by an express or implied
    understanding or agreement, oral or written (whether or not such
    understanding or agreement is legally binding). Furthermore,
    each of the parties hereto acknowledges and agrees that it does
    not know or have reason to know that its use or disclosure of
    information relating to the structure or tax aspects of the
    Transaction is limited in any other manner (such as where the
    Transaction is claimed to be proprietary or exclusive) for the
    benefit of any other Person.



 



    (b) Subject to Section 10.8(a), each of the Transferor
    and the Collection Agent hereby agrees that it will not
    disclose, and the Transferor will cause each Parent Group Member
    to refrain from disclosing, the contents of this Agreement or
    any other proprietary or confidential information of any Conduit
    Investor, the Agent, any Administrative Agent, any Collateral
    Agent, any Liquidity Provider or any Bank Investor to any other
    Person except (i) as required by federal or state
    securities laws, (ii) its auditors and attorneys, employees
    or financial advisors (other than any commercial bank) and any
    nationally recognized rating agency provided such
    auditors, attorneys, employees financial advisors or rating
    agencies are informed of the highly confidential nature of such
    information or (iii) following notice thereof to each
    Administrative Agent, as otherwise required by other applicable
    law or order of a court of competent jurisdiction.



 



    (c) Each Administrative Agent, each Investor and the Agent
    acknowledges that it or its agents or representatives may, from
    time to time, obtain knowledge of information, practices, books,
    correspondence and records (“Confidential
    Information”) identified to it in writing as being of a
    confidential nature or in which the Transferor or an Originating
    Entity has a proprietary interest. Subject to
    Section 10.8(a), each Administrative Agent, each Investor
    and the Agent agrees that all such Confidential Information so
    obtained by it is to be regarded as confidential information and
    that such Confidential Information may be subject to laws, rules
    and regulations regarding patient confidentiality, and agrees
    that (x) it shall retain in confidence, and shall ensure
    that its agents and representatives retain in confidence, and
    will not disclose, any of such Confidential Information without
    the prior written consent of the Transferor and (y) it will
    not, and will ensure that its agents and representatives will
    not, make any use whatsoever (other than for purposes of this
    Agreement) of any of such Confidential Information without the
    prior written consent of the Transferor; provided,
    however, that such Confidential Information may be
    disclosed to the extent that such Confidential Information
    (i) may be or becomes generally available to the public
    (other than as a breach of this Section 10.8(c),
    (ii) is required or appropriate in response to any summons
    or subpoena in connection with any litigation or (iii) is
    required by law to be disclosed; and provided,
    further, however, that such Confidential
    Information may be disclosed to (A) the Agent, any
    Administrative Agent, any Investor, any Credit Support Provider
    and any Liquidity Provider, subject to the terms of this
    Section 10.8(c), (B) any such Person’s legal
    counsel, auditors and other business advisors, (C) any such
    Person’s government regulators and (D) the rating
    agencies rating any Commercial Paper issued by a Conduit
    Investor, provided that the Person making such disclosure
    shall advise each recipient thereof referred to in clauses (A),
    (B), (C) and (D) above that such Confidential
    Information is to be regarded and maintained as confidential
    information and that each Administrative Agent has agreed to
    keep confidential such Confidential Information as provided in
    clauses (x) and (y) above. Notwithstanding anything
    herein to the contrary, the parties hereto agree that the
    Transferor and the Collection Agent shall not be required to
    furnish any patient specific medical information to the extent
    the disclosure of such information would violate applicable law,
    unless and until the recipient of such information executes and
    delivers a business associate agreement in substantially the
    form attached as Exhibit J.



 



    Section 10.9. No
    Bankruptcy Petition Against Conduit Investors. Each of
    the Transferor and the Collection Agent hereby covenants and
    agrees that, prior to the date which is one year and one day
    after the payment in full of all outstanding Commercial Paper or
    other indebtedness of any Conduit Investor, it will not, and the
    Transferor will cause each Parent Group Member to not, institute
    against, or encourage, assist or join any other Person in
    instituting against, such Conduit Investor any bankruptcy,
    reorganization, arrangement insolvency or liquidation
    proceedings




    

    61








 






    or other similar proceeding under the laws of the United States
    or any state of the United States or any other proceedings
    related to an Event of Bankruptcy. Notwithstanding any provision
    contained in this Agreement to the contrary, no Conduit Investor
    shall, nor shall any Conduit Investor be obligated to, pay any
    amount pursuant to this Agreement unless (i) the Conduit
    Investor has received funds which may be used to make such
    payment in accordance with such Conduit Investor’s
    commercial paper program documents, which funds are not required
    to repay its Commercial Paper when due; and (ii) after
    giving effect to such payment, either (x) there is
    sufficient liquidity available (determined in accordance with
    such program documents) to pay the Face Amount of all its
    Commercial Paper, (y) the Conduit Investor is not rendered
    insolvent or (z) its Commercial Paper has been repaid in
    full. Any amount which the Conduit Investor does not pay
    pursuant to the operation of the preceding sentence shall not
    constitute a claim (as defined in Section 101 of the United
    States Bankruptcy Code) against or a corporate obligation of the
    Conduit Investor for any insufficiency. The provisions of this
    Section shall survive the termination of this Agreement.



 



    Section 10.10. No
    Recourse Against Stockholders, Officers or
    Directors. No recourse under any obligation, covenant
    or agreement of any Conduit Investor contained in this Agreement
    shall be had against Global Securitization Services, LLC (nor
    any affiliate thereof), AMACAR Group L.L.C. (nor any affiliate
    thereof), or any stockholder, officer or director of such
    Conduit Investor, as such, by the enforcement of any assessment
    or by any legal or equitable proceeding, by virtue of any
    statute or otherwise; it being expressly agreed and understood
    that this Agreement is solely a corporate obligation of such
    Conduit Investor, and that no personal liability whatsoever
    shall attach to or be incurred by Global Securitization
    Services, LLC (or any affiliate thereof), AMACAR Group L.L.C.
    (or any affiliate thereof), or the stockholders, officers, or
    directors of such Conduit Investor, as such, or any of them,
    under or by reason of any of the obligations, covenants or
    agreements of such Conduit Investor contained in this Agreement,
    or implied therefrom, and that any and all personal liability
    for breaches by a Conduit Investor of any of such obligations,
    covenants or agreements, either at common law or at equity, or
    by statute or constitution, of Global Securitization Services ,
    LLC (or any affiliate thereof), AMACAR Group L.L.C. (or any
    affiliate thereof) and every such stockholder, officer or
    director of such Conduit Investor is hereby expressly waived as
    a condition of and consideration for the execution of this
    Agreement.



 



    Section 10.11. Characterization
    of the Transactions Contemplated by the Agreement. It
    is the intention of the parties that the transactions
    contemplated hereby constitute the sale of the Transferred
    Interest, conveying good title thereto free and clear of any
    Adverse Claims to the Agent, on behalf of the Investors, and
    that the Transferred Interest not be part of the
    Transferor’s estate in the event of an insolvency. If,
    notwithstanding the foregoing, the transactions contemplated
    hereby should be deemed a financing, the parties intend that the
    Transferor shall be deemed to have granted to the Agent, on
    behalf of the Investors, and the Transferor hereby grants to the
    Agent, on behalf of the Investors, a first priority perfected
    and continuing security interest in all of the Transferor’s
    right, title and interest in, to and under the Receivables,
    together with Related Security, Collections and Proceeds with
    respect thereto, and together with all of the Transferor’s
    rights under the Receivables Purchase Agreement, the
    Transferring Affiliate Letter, the BMA Transfer Agreement and
    all other Transaction Documents with respect to the Receivables
    and with respect to any obligations thereunder of any
    Originating Entity with respect to the Receivables, and that
    this Agreement shall constitute a security agreement under
    applicable law. The Transferor hereby assigns to the Agent, on
    behalf of the Investors, all of its rights and remedies under
    the Receivables Purchase Agreement, the Transferring Affiliate
    Letter and the BMA Transfer Agreement (and all instruments,
    documents and agreements executed in connection therewith) with
    respect to the Receivables and with respect to any obligations
    thereunder of any Originating Entity with respect to the
    Receivables.



 



    [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




    

    62








 






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



 



    PARADIGM FUNDING LLC,




    as a Conduit Investor



 



    By: /s/  Doris
    J. Hearn








    Name:     Doris J. Hearn




    Title: Vice President



 


 








    GIRO BALANCED FUNDING CORPORATION,




    as a Conduit Investor



 


 



    By: /s/  Damian
    A. Perez








    Name:     Damian A. Perez




    Title: Vice President



 


 








    LIBERTY STREET FUNDING LLC,




    as a Conduit Investor



 


 



    By: /s/  Jill
    A. Russo








    Name:     Jill A. Russo




    Title: Vice President



 



    NMC FUNDING CORPORATION,




    as Transferor



 


 



    By: /s/  Mark
    Fawcett








    Name:     Mark Fawcett




    Title: Vice President and Treasurer



 



    NATIONAL MEDICAL CARE, INC.,

    as Collection Agent



 


 



    By: /s/  Mark
    Fawcett








    Name:     Mark Fawcett




    Title: Vice President and Treasurer




    

    63








 






    WESTLB AG, NEW YORK BRANCH, as Agent, an Administrative
    Agent and as a Bank Investor



 


 



    By: /s/  Matthew
    Tallo








    Name:     Matthew Tallo




    Title: Executive Director



 



    By: /s/  Vesselina
    Koleva








    Name:     Vesselina Koleva




    Title: Director



 



    BAYERISCHE LANDESBANK, NEW YORK BRANCH, as an
    Administrative Agent



 


 



    By: /s/  Alexander
    Kohnert








    Name:     Alexander Kohnert




    Title: Senior Vice President



 



    By: /s/  Lori-Ann
    Wynter








    Name:     Lori-Ann Wynter




    Title: Vice President



 



    BAYERISCHE LANDESBANK, CAYMAN ISLANDS BRANCH, as a Bank
    Investor



 


 



    By: /s/  Lori-Ann
    Wynter








    Name:     Lori-Ann Wynter




    Title: Vice President



 



    By: /s/  Jana
    Schmiedel








    Name:     Jana Schmiedel




    Title: Second Vice President



 



    

    64








 






    THE BANK OF NOVA SCOTIA,

     as an Administrative Agent and as a Bank Investor



 



    By: /s/  Michael
    Eden








    Name:     Michael Eden




    Title: Director



 



    LANDESBANK HESSEN-THUERINGEN GIROZENTRALE, as a Bank
    Investor



 



    By: /s/  Martin
    Scheeze








    Name:     Martin Scheeze




    Title: Senior Vice President



 



    By: /s/  Stefan
    Brandauer








    Name:     Stefan Brandauer




    Title: Vice President




    

    65








 





 




    SCHEDULE I

    



 




    to

    



 




    FOURTH
    AMENDED AND RESTATED

    





    TRANSFER
    AND ADMINISTRATION AGREEMENT



 




    NOTICE
    ADDRESSES FOR BANK INVESTORS



 



    WESTLB AG, NEW YORK BRANCH




    1211 Avenue of the Americas




    New York, New York 10036




    Attention: Asset Securitization Group




    Telephone:
    (212) 852-6000




    Telecopy:
    (212) 597-1423



 



    BAYERISCHE LANDESBANK, CAYMAN ISLANDS BRANCH




    560 Lexington Avenue




    New York, New York 10022




    Attention: Alexander Kohnert




    Tel: 212/310-9878




    Telecopy: 212/230-9020



 



    LANDESBANK HESSEN — THUERINGEN GIROZENTRALE




    Neue Mainzer Strasse
    52-58




    D-60297 Frankfurt am Main




    Germany




    Attention: Martin Scheele




    Tel:
    01149-69-9132-3183




    Fax:
    01149-69-9132-4190



 



    THE BANK OF NOVA SCOTIA




    One Liberty Plaza




    New York, NY 10006




    Attention: Michael Eden




    Tel: 212/225-5237




    Fax: 212/225-5274



 



    with a copy to:



 



    The Bank of Nova Scotia




    One Liberty Plaza




    New York, NY 10006




    Attention: Vilma Pindling




    Tel: 212/225-5410




    Fax: 212/225-6465




    

    66








 







    SCHEDULE II

    



 




    to

    



 




    FOURTH
    AMENDED AND RESTATED

    





    TRANSFER
    AND ADMINISTRATION AGREEMENT



 




    COMMITMENTS
    OF BANK INVESTORS



 


	 	 	 	 	 
	

    Bank Investor


	
 
	
    Commitment
	
 

	 

	

    WestLB AG, New York Branch


	
 
	
    $
	
    185,000,000
	
 

	

    Bayerische Landesbank, Cayman Islands Branch


	
 
	
    $
	
    167,000,000
	
 

	

    The Bank of Nova Scotia


	
 
	
    $
	
    143,000,000
	
 

	

    Landesbank Hessen — Thueringen Girozentrale


	
 
	
    $
	
    55,000,000
	
 










    

    67








 





EXHIBIT A




to




FOURTH AMENDED AND RESTATED




TRANSFER AND ADMINISTRATION AGREEMENT




FORMS OF CONTRACTS




[* 25 pages]

 









 








EXHIBIT B




to




FOURTH AMENDED AND RESTATED




TRANSFER AND ADMINISTRATION AGREEMENT




CREDIT AND COLLECTION POLICIES AND PRACTICES




[* 97 pages]




 









 








EXHIBIT C

to

FOURTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT




List of Special Account Banks, Designated Account Agents and Concentration Bank




[* 14 pages]





 









 








EXHIBIT
D-1




to




FOURTH AMENDED AND RESTATED




TRANSFER AND ADMINISTRATION AGREEMENT




FORM OF SPECIAL ACCOUNT LETTER




 









 








EXHIBIT
D-1




FORM OF SPECIAL ACCOUNT BANK LETTER




[DATE]




[Name and Address of



Special Account Bank]




[Name of Originating Entity]




Ladies and Gentlemen:




          Reference is made to our depositary
account[s] number[s]                                         
maintained in the name of the undersigned (the “Originating Entity”) with
you (the “Account[s]”).




          Unless otherwise directed by the Originating Entity, you are hereby instructed to transfer
funds on deposit in the Account[s] solely to the following account by
[ACH transfer or, if so directed by the Originating Entity, by wire transfer] [intrabank
transfer]:




[Name, number and designation of (i) the Concentration Account and




Concentration Account Bank or (ii) the Intermediate Concentration Account, as applicable].



          Each such transfer shall be made at the end of each banking day on which the amount on deposit
in the Account[s] exceeds $20,000, with the amount of the transfer being equal to the total amount
of such funds in excess of $5,000; provided that that Originating Entity may, at its option,
deliver a standing instruction to you to effect such transfer at the end of each banking day
regardless of the amount on deposit in the Account[s], with the amount of the transfer being equal
to the total amount of funds in the
Account[s].




 









 








          Please agree to the terms of, and acknowledge receipt of, this letter by signing in the space
provided below on two copies hereof sent herewith and send the signed copies to NMC the Originating
Entity at its address at 920 Winter Street, Waltham, MA 02451, Attention: Mark Fawcett.




	 	 	 	 	 
	 	Very truly yours,





[NAME OF ORIGINATING
ENTITY]

 	 
	 	By:  	 	 
	 	 	Title 	 
	 	 	 	 
	 



	 	 	 	 	 
	Agreed and acknowledged:	 	 
	 
	 	 	 	 
	[NAME OF SPECIAL ACCOUNT BANK]	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	 

	 	Title:	 	 






2









 





EXHIBIT D-2




to




FOURTH AMENDED AND RESTATED




TRANSFER AND ADMINISTRATION AGREEMENT




FORM OF CONCENTRATION ACCOUNT AGREEMENT














 





EXHIBIT D-2




FORM OF CONCENTRATION ACCOUNT AGREEMENT

(the “Agreement”)




October 16, 2008




JPMorgan Chase Bank

270 Park Avenue

New York, NY 10017-2070




Re:       Account #323-0-76823




Ladies and Gentlemen:




          You are hereby notified, in connection with certain transactions involving its accounts
receivable, that NMC FUNDING CORPORATION (the “Transferor”) has transferred certain rights in
Account # 323-0-76823 (the “Account”), as more particularly described below, to WestLB AG, New
York Branch (“WestLB”), as Agent (the “Agent”) under the Fourth Amended and Restated Transfer and
Administration Agreement dated October 16, 2008 by and among the Transferor, as transferor,
National Medical Care, Inc., as Collection Agent, the entities from time to time parties thereto
as “Conduit Investors,” “Bank Investors,” “Administrative Agents” and WestLB as Agent, as the same
may be amended, restated, supplemented or otherwise modified from time to time. The Agreement
amends, restates and
supersedes the letter agreement dated October 23, 2003 among the Transferor, the Agent and
you.





	(a)	 	Transfer to the Agent. The Transferor has transferred exclusive ownership and
dominion over the Account, including with respect to all monies, checks, instruments,
collections, remittances and other payment items received in the Account (the “Payment
Items”), to the Agent and, effective as of the Effective Time (as defined below), will
transfer exclusive control of the Account to the Agent.
	 
	(b)	 	Prior to Notice of Effectiveness. You are hereby instructed: (i) until the Effective
Time to make such transfers from the Account at such times and in such manner as the
Transferor shall from time to time instruct to the extent such instructions are not
inconsistent with the instructions set forth herein, and (ii) to permit the Transferor and
the Agent to obtain upon request any information relating to the Account, including, without
limitation, any information regarding the balance or activity of the Account.
	 
	(c)	 	Following Notice of Effectiveness. The Transferor and the Agent hereby instruct you,
beginning on the opening of business on the business day next succeeding the business day on
which a notice purporting to be signed by the Agent in substantially the form attached hereto
as “Annex I” with a copy of this Agreement attached thereto (a “Notice of Effectiveness”) is
received by facsimile or otherwise by Frances A. Ruke or Jeanne A. Muino




 









 






	 	 	at the address or facsimile number set forth below (or at such other address or facsimile
number as you may from time to time notify the Agent and the Transferor in writing) (or if
such Notice of Effectiveness is so received after 12:00 noon, New York City time, on any such
business day, on the opening of business on the second business day next succeeding the
business day on which such receipt occurs) (either such time, the “Effective Time”), (i) to
transfer all funds deposited and collected in the Account pursuant to instructions given to you
by the Agent from time to time, (ii) that notwithstanding anything herein or elsewhere to the
contrary, the Agent, and not Transferor, shall be irrevocably entitled to exercise any and all
applicable rights in respect of or in connection with the Payment Items, including, without
limitation, the right to specify when payments in respect of the Payment Items are to be made
out of or in connection with the Account and (iii) you shall not take instruction from the
Transferor with respect to any amounts in the Account. You are hereby advised by the Agent and
the Transferor that the Transferor has under a separate agreement granted to the Agent certain
ownership and security interests in all Payment Items and their proceeds and all monies and
earning, if any, therefrom the Account, and by your signature below you acknowledge being so
advised. A “business day” is any day other than a Saturday, Sunday or other day on which you
are or are authorized or required by law to be closed. Anything to the contrary herein
notwithstanding, (i) all transactions relating to the Account or any Payment Items therein duly
commenced by you or your affiliates in accordance with customary procedures prior to the
Effective Time and so consummated or processed thereafter shall be deemed not to constitute a
violation of this Agreement,; and (ii) you, and/or any affiliate may (at your discretion and
without any obligation to do so) (x) cease honoring the Transferor’s instructions and/or
commence honoring solely the Agent’s instructions concerning the Account or the Payment Items
at any time or from time to time after you become aware that the Agent has sent a Notice of
Effectiveness to you but prior to the Effective Time therefor (including without limitation
halting, reversing or redirecting any transaction referred to in clause (i) above), or (y) deem
a Notice of Effectiveness to be received by you for purposes of the foregoing prior to the
specified individual’s actual receipt if otherwise actually received by you (or if such Notice
of Effectiveness contains minor mistakes or other irregularities but otherwise substantially
complies with the form attached hereto as “Annex I” or does not attach an appropriate copy of
this Agreement) with no liability whatsoever to the Transferor
or any other party for doing so and provided further that this Agreement evidences the
Agent’s control over the Account and notwithstanding anything to the contrary in any other
agreement governing the Account, on and after the Effective Time you shall comply with
instructions originated by the Agent that are permitted under the Account Documentation
directing the disposition of funds without further consent of the Transferor or any other
person.






	(d)	 	General Terms. The monies, checks, instruments and other items of payment mailed to,
and funds deposited to, the Account will not be subject to deduction, setoff, banker’s lien,
or any other right in favor of any person other than the Agent and the Transferor (except
that you may set off (i) all amounts due to you in respect of your customary fees and
expenses for the routine maintenance and operation of the Account, (ii) the face amount of
any Payment Items which have been credited to the Account but are subsequently returned
unpaid or charged back or, as to Payment Items consisting of payment orders or other
electronic funds transfers, reversed, cancelled or otherwise corrected or adjusted, and (iii)
to cover overdrafts in the Account).




2









 











     This Agreement supplements, rather than replaces, your deposit account agreement, terms and
conditions and other standard documentation in effect from time to time with respect to the Account
or services provided in connection with the Account (the “Account Documentation”), which Account
Documentation will continue to apply to the Account and such services, and the respective rights,
powers, duties, obligations, liabilities and responsibilities of the parties thereto and hereto, to
the extent not expressly conflicting with the provisions of this Agreement (however, in the event
of any such conflict, the provisions of this Agreement shall control). Without limiting the
generality of the foregoing, it is understood and agreed that the only instructions the Transferor
or the Agent are entitled to give with respect to the Account are those which are permitted under
the Account Documentation and the Agent may request you to
provide other services (such as automatic daily transfers) with respect to the Account on or
after the Effective Time; however, if such services are not authorized or otherwise covered under
the Account Documentation, your decision to provide any such services shall be made in your sole
discretion (including without limitation being subject to the Transferor and/or the Agent executing
such Account Documentation or other documentation as you may require in connection therewith).
Prior to issuing any instructions which it is entitled to issue under this Agreement (for the
avoidance of doubt, other than a Notice of Effectiveness), the Agent shall provide you with a
Certificate of Incumbency substantially in the form of Annex II hereto.



     Anything to the contrary in this Agreement notwithstanding, (i) you shall have only the
duties and responsibilities with respect to matters set forth herein as are expressly set forth in
writing herein and shall not be deemed to be a fiduciary for any party hereto, (ii) you shall be
fully protected in acting or refraining from acting in good faith on any written notice (including
a Notice of Effectiveness), instruction, or request purportedly furnished to you by the Agent in
accordance with the terms hereof, in which case the parties hereto agree that you have no duty to
make any further inquiry whatsoever (without limiting the generality of the foregoing, it is
hereby acknowledged and agreed that you have no knowledge of (and are not required to know) the
terms and provisions of the separate agreement referred to in clause (c) above or any other
related documentation to which you are not a party or whether any actions by the Agent (including
without limitation the sending of a Notice of Effectiveness), the Transferor or any other person
or entity are permitted or a breach thereunder or consistent or inconsistent therewith), (iii) you
shall not be liable to any party hereto or any other person for any action or failure to act under
or in connection with this Agreement except for your own willful misconduct or gross negligence
(and, to the maximum extent permitted by law, shall under no circumstances be liable for indirect,
special, punitive or consequential damages); further, you shall not be liable for losses or delays
caused by force majeure, interruption or malfunction of computer, transmission or communications
facilities, labor difficulties, court order or decree, the
commencement of bankruptcy or other similar proceedings or other matters beyond your
reasonable control; (iv) the Transferor hereby indemnifies you for, and holds you harmless
against, any loss, cost, liability or expense (including reasonable inside or outside counsel fees
and disbursements) incurred or suffered by you arising out of or in connection with this Agreement
or the Account, except as may result from your willful misconduct or gross negligence, or any
interpleader proceeding related thereto or incurred or suffered by you at the Transferor’s
direction or instruction; and (v) upon and after the Effective Time, the Agent agrees to reimburse
you for the item(s) referred to in clause (ii) of subparagraph (d) above (to the extent that the
Agent has already received the benefits of such item(s)), in the event that there are



3









 




insufficient funds in the Account therefor and you have not received reimbursement from the
Transferor within 10 days after your written request therefor.




          You may terminate this Agreement upon the sending of at least thirty (30) business days
advance written notice to the other parties hereto. The Agent may terminate this Agreement upon
the sending of at least five (5) business days advance written notice to the other parties hereto.
The Transferor may not terminate this Agreement except upon the sending of at least ten (10)
business days advance written notice to you accompanied by the Agent’s written consent to such
termination. Neither this Agreement nor any provision hereof may be changed, amended, modified or
waived orally but only by an instrument in writing signed by you, the Agent and the Transferor.




          You shall not assign or transfer your rights or obligations hereunder (other than to the
Agent) without the prior written consent of the Agent and the Transferor provided,
however that you may transfer any such rights or obligations to an affiliate upon 30 days
advance written notice to the Agent and the Transferor. Subject to the preceding sentence, this
Agreement shall be binding upon each of the parties hereto and their respective successors and
assigns, and shall
inure to the benefit of, and be enforceable by, the Agent, each of the parties hereto and
their respective successors and assigns.




          You hereby represent that the person signing this Agreement on your behalf is duly authorized
by you to sign.




          You agree to give the Agent, at its address specified below, copies of each periodic statement
relating to activity in the Account which you provide to the Transferor, together with such
additional information relating to the Account as the Agent may from time to time reasonably
request. You further agree to give the Agent and the Transferor prompt notice if the Account become
subject to any writ, garnishment, judgement, warrant or attachment, execution or similar process.




          Any notice, demand or other communication required or permitted to be given hereunder shall be
in writing and may be personally served or sent by facsimile or by courier service or by United
States mail and except as provided above with respect to a Notice of Effectiveness shall be deemed
to have been delivered when delivered in person or by courier service or by facsimile or three (3)
business days after deposit in the United States mail (registered or certified, with postage
prepaid and properly addressed). For the purposes hereof, (i) the addresses of the parties hereto
shall be as set forth below each party’s name below, or, as to each party, at such other address as
may be designated by such party in a written notice to the other party and the Agent and (ii) the
address of the Agent shall be WestLB AG, New York Branch, 1211 Avenue of the Americas, New York,
New York 10036, attention: Asset Securitization Group, fax: 212-597-1423 or at such other address
as may be designated by the Agent in a written notice to each of the parties hereto.




          This Agreement may be signed in any number or counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon
the same instrument, (ii) shall become effective when counterparts hereof have been signed by the
parties hereto and (iii) shall be governed by and construed in accordance with the laws of the




4









 







State of New York. All parties hereby waive all rights to a trial by jury in any action or
proceeding relating to the Account or this Agreement.




5









 








          Please agree to the terms of, and acknowledge receipt of this notice by signing in the space
provided below.




	 	 	 	 	 	 	 
	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	NMC FUNDING CORPORATION,	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	Title:
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	920 Winter Street	 	 
	Waltham, Massachusetts 02451	 	 
	Facsimile No: (781) 699-9756	 	 
	 
	 	 	 	 	 	 
	ACKNOWLEDGED AND AGREED:	 	 
	 
	 	 	 	 	 	 
	JPMORGAN CHASE BANK	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	Title:
	 	 	 	 	 	 
	 	 	 	 	 
	Date:
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	Attention: [                                          ]	 	 
	 

	 	 	 	JPMorgan Chase Bank	 	 
	 

	 	 	 	2 Chase Manhattan Plaza, 22nd Floor	 	 
	 

	 	 	 	New York, NY 10081	 	 
	 
	 	 	 	 	 	 
	Facsimile No: [                                          ]	 	 
	 
	 	 	 	 	 	 
	WESTLB AG, NEW YORK BRANCH, as Agent	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	Name:
	 	 	 	 	 	 
	 	 	 	 	 
	Title:
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	Name:
	 	 	 	 	 	 
	 	 	 	 	 
	Title:
	 	 	 	 	 	 
	 	 	 	 	 





6









 





ANNEX 1




TO CONCENTRATION ACCOUNT LETTER




(FORM OF NOTICE OF EFFECTIVENESS)




DATED:                                         , 200_





			
	TO:	 	JP Morgan Chase Bank 

2 Chase Manhattan Plaza, 22nd Floor 

New York, N.Y. 10081





ATTN: [                               ] or [                               ]




Re: Concentration Account Bank No. 323-0-76823




Ladies and Gentlemen:




          We hereby give you a “Notice of Effectiveness” with respect to the above referenced Account,
as and to the extent described in our letter agreement with you dated October 16, 2008, a copy of
which is attached hereto. You are hereby instructed to comply with the instructions of the
undersigned as set forth in that letter.




	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	WESTLB AG, NEW YORK BRANCH, as Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






7









 





ANNEX II




TO CONCENTRATION ACCOUNT LETTER




(FORM OF INCUMBENCY CERTIFICATE)




CERTIFICATE OF AN OFFICER OF




WESTLB AG, NEW YORK BRANCH, AS AGENT




          The undersigned [           ] being an [Assistant Secretary] [Vice
President] of WestLB AG, New York Branch (the “Company”) hereby executes and delivers this
certificate to JPMorgan Chase Bank (“JPMCB”) on behalf of the Company pursuant to the Concentration
Account Letter dated as of October 16, 2008 among the Company, NMC Funding Corporation, Bank of
America N.A., and JPMCB (as amended, restated, supplemented or otherwise modified from time to
time, the “Concentration Account Letter”). Capitalized terms used herein and not otherwise
defined herein shall have the respective meanings assigned thereto in the Concentration Account
Letter.




     The undersigned hereby certifies, as of the date hereof, that the following named persons are
duly appointed officers of the Company, holding the office or offices set forth opposite their
respective names, and each is authorized to execute and deliver, on behalf of the Company,
instructions pursuant to the terms of the Concentration Account Letter, and the signatures
appearing opposite the names of such individuals are authentic and genuine and are, in fact,
the signatures of such individuals:



8









 





	 	 	 	 	 	 	 
	Name	 	Title	 	Signature	 	 
	 


	[                    ]

	 	[                    ]
	 	 

	 	 
	 


	[                    ]

	 	[                    ]
	 	 

	 	 
	 	 
	[                    ]

	 	[                    ]
	 	 

	 	 






          IN
WITNESS WHEREOF, I have hereunto set my hand this ___ day of                     , 2008.




	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	[Name] 	 
	 	 	[Assistant Secretary] [Vice President] 	 
	 




9









 





EXHIBIT D-3




to




FOURTH AMENDED AND RESTATED




TRANSFER AND ADMINISTRATION AGREEMENT




FORM OF INTERMEDIATE CONCENTRATION ACCOUNT AGREEMENT




 









 





EXHIBIT D-3




FORM OF INTERMEDIATE CONCENTRATION ACCOUNT AGREEMENT

(the “Agreement”)




[DATE]




[Name and Address of Intermediate Concentration Account Bank]




Re:       Account # [                    ]




Ladies and Gentlemen:




               You are hereby notified, in connection with certain transactions involving its accounts
receivable, that NMC FUNDING CORPORATION (the “Transferor”) has transferred
certain rights in Account #[                     ] (the “Account”), as more particularly described below, to
WestLB AG, New York Branch (“WestLB”), as Agent (the “Agent”) under the Fourth Amended and
Restated Ttransfer and Administration Agreement dated October 16, 2008 by and among the
Transferor, as transferor, National Medical Care, Inc., as Collection Agent, the entities from
time to time parties thereto as “Conduit Investors,” “Bank Investors,” “Administrative Agents” and
WestLB as Agent (as the same has been or may hereafter be amended, restated, supplemented or
otherwise modified from time to time, the “TAA”).





	(a)	 	Transfer to the Agent. The Transferor has transferred exclusive ownership and
dominion over the Account, including with respect to all monies, checks, instruments,
collections, remittances and other payment items received in the Account (the “Payment
Items”), to the Agent and, effective as of the Effective Time (as defined below), will
transfer exclusive control of the Account to the Agent.
	 
	(b)	 	Prior to Notice of Effectiveness. You are hereby instructed until the Effective Time
to
transfer at the end of each banking day all funds on deposit in the Account to the account
listed in Annex I by ACH transfer or, if so directed by the Originating Entity, by wire
transfer.



You are hereby further instructed to permit the Transferor and the Agent to obtain upon request
any information relating to the Account, including, without limitation, any information
regarding the balance or activity of the Account.
	 
	(c)	 	Following Notice of Effectiveness. The Transferor and the Agent hereby instruct you,
beginning on the opening of business on the business day next succeeding the business day
on which a notice purporting to be signed by the Agent in substantially the form attached
hereto as “Annex II” with a copy of this Agreement attached thereto (a “Notice of
Effectiveness”) is received by facsimile or otherwise by you at the address or facsimile
number set forth below (or at such other address or facsimile number as you may from time
to time notify the Agent and the Transferor in writing) (or if such Notice of Effectiveness is





 









 









	 	 	so received after 12:00 noon, New York City time, on any such business day, on the opening of
business on the second business day next succeeding the business day on which such receipt
occurs) (either such time, the “Effective Time”), (i) to transfer all funds deposited and
collected in the Account pursuant to instructions given to you by the Agent from time to time,
(ii) that notwithstanding anything herein or elsewhere to the contrary, the Agent, and not
Transferor, shall be irrevocably entitled to exercise any and all applicable rights in respect
of or in connection with the Payment Items, including, without limitation, the right to specify
when payments in respect of the Payment Items are to be made out of or in connection with the
Account and (iii) you shall not take instruction from the Transferor with respect to any amounts
in the Account. You are hereby advised by the Agent and the Transferor that the Transferor has
under a separate agreement granted to the Agent certain ownership and security interests in all
Payment Items and their proceeds and all monies and earning, if any,
therefrom the Account, and by your signature below you acknowledge being so advised. A “business
day” is any day other than a Saturday, Sunday or other day on which you are or are authorized or
required by law to be closed. Anything to the contrary herein notwithstanding, (i) all
transactions relating to the Account or any Payment Items therein duly commenced by you or your
affiliates in accordance with customary procedures prior to the Effective Time and so
consummated or processed thereafter shall be deemed not to constitute a violation of this
Agreement,; and (ii) you, and/or any affiliate may (at your discretion and without any
obligation to do so) (x) cease honoring the Transferor’s instructions and/or commence honoring
solely the Agent’s instructions concerning the Account or the Payment Items at any time or from
time to time after you become aware that the Agent has sent a Notice of Effectiveness to you but
prior to the Effective Time therefor (including without limitation halting, reversing or
redirecting any transaction referred to in clause (i) above), or (y) deem a Notice of
Effectiveness to be received by you for purposes of the foregoing prior to the specified
individual’s actual receipt if otherwise actually received by you (or if such Notice of
Effectiveness contains minor mistakes or other irregularities but otherwise substantially
complies with the form attached hereto as “Annex II” or does not attach an appropriate copy of
this Agreement) with no liability whatsoever to the Transferor or any other party for doing so
and provided further that this Agreement evidences the Agent’s control over the Account
and notwithstanding anything to the contrary in any other agreement governing the Account, on
and after the Effective Time you shall comply with instructions originated by the Agent that are
permitted under the Account Documentation directing the disposition of funds without further
consent of the Transferor or any other person.






	(d)	 	General Terms. The monies, checks, instruments and other items of payment mailed to,
and funds deposited to, the Account will not be subject to deduction, setoff, banker’s lien,
or any other right in favor of any person other than the Agent and the Transferor (except
that you may set off (i) all amounts due to you in respect of your customary fees and
expenses for the routine maintenance and operation of the Account, (ii) the face amount of
any Payment Items
which have been credited to the Account but are subsequently returned unpaid or charged back
or, as to Payment Items consisting of payment orders or other electronic funds transfers,
reversed, cancelled or otherwise corrected or adjusted, and (iii) to cover overdrafts in the
Account). This Agreement supplements, rather than replaces, your deposit account agreement,
terms and conditions and other standard documentation in effect from time to time with respect
to the Account or services provided in connection with the Account (the




2









 












	 	 	“Account Documentation”), which Account Documentation will continue to apply to the Account and
such services, and the respective rights, powers, duties, obligations, liabilities and
responsibilities of the parties thereto and hereto, to the extent not expressly conflicting with
the provisions of this Agreement (however, in the event of any such conflict, the provisions of
this Agreement shall control). Without limiting the generality of the foregoing, it is understood
and agreed that the only instructions the Transferor or the Agent are entitled to give with
respect to the Account are those which are permitted under the Account Documentation and the Agent
may
request you to provide other services (such as automatic daily transfers) with respect to the
Account on or after the Effective Time; however, if such services are not authorized or otherwise
covered under the Account Documentation, your decision to provide any such services shall be made
in your sole discretion (including without limitation being subject to the Transferor and/or the
Agent executing such Account Documentation or other documentation as you may require in connection
therewith). Prior to issuing any instructions which it is entitled to issue under this Agreement
(for the avoidance of doubt, other than a Notice of Effectiveness), the Agent shall provide you
with a Certificate of Incumbency substantially in the form of Annex III hereto.
	 
	 	 	Anything to the contrary in this Agreement notwithstanding, (i) you shall have only the duties and
responsibilities with respect to matters set forth herein as are expressly set forth in writing
herein and shall not be deemed to be a fiduciary for any party hereto, (ii) you shall be fully
protected in acting or refraining from acting in good faith on any written notice (including a
Notice of Effectiveness), instruction, or request purportedly furnished to you by the Agent in
accordance with the terms hereof, in which case the parties hereto agree that you have no duty to
make any further inquiry whatsoever (without limiting the generality of the foregoing, it is hereby
acknowledged and agreed that you have no knowledge of (and are not required to know) the terms and
provisions of the TAA referred to above or any other related documentation to which you are not a
party or whether any actions by the Agent (including without limitation the sending of a Notice of
Effectiveness), the Transferor or any other person or entity are permitted or a breach thereunder
or consistent or inconsistent therewith), (iii) you shall not be liable to any party hereto or any
other person for any action or failure to act under or in connection with this Agreement except for
your own willful misconduct or gross negligence (and, to the maximum extent permitted by law, shall
under no circumstances be liable for indirect, special, punitive or consequential damages);
further, you shall not be liable for losses or delays caused by force majeure, interruption or
malfunction of computer, transmission or communications facilities, labor difficulties, court order
or decree, the commencement of bankruptcy or other similar proceedings or other matters beyond your
reasonable control; (iv) the Transferor hereby
indemnifies you for, and holds you harmless against, any loss, cost, liability or expense
(including reasonable inside or outside counsel fees and disbursements) incurred or suffered by you
arising out of or in connection with this Agreement or the Account, except as may result from your
willful misconduct or gross negligence, or any interpleader proceeding related thereto or incurred
or suffered by you at the Transferor’s direction or instruction; and (v) upon and after the
Effective Time, the Agent agrees to reimburse you for the item(s) referred to in clause (ii) of
subparagraph (d) above (to the extent that the Agent has already received the benefits of such
item(s)), in the event that there are insufficient funds in the Account therefor and you have not
received reimbursement from the Transferor within 10 days after your written request therefor.




3









 











          You may terminate this Agreement upon the sending of at least thirty (30) business days
advance written notice to the other parties hereto. The Agent may terminate this Agreement upon
the sending of at least five (5) business days advance written notice to the other parties hereto.
The Transferor may not terminate this Agreement except upon the sending of at
least ten (10) business days advance written notice to you accompanied by the Agent’s written
consent to such termination. Neither this Agreement nor any provision hereof may be changed,
amended, modified or waived orally but only by an instrument in writing signed by you, the Agent
and the Transferor.




          You shall not assign or transfer your rights or obligations hereunder (other than to the
Agent) without the prior written consent of the Agent and the Transferor provided,
however that you may transfer any such rights or obligations to an affiliate upon 30 days
advance written notice to the Agent and the Transferor. Subject to the preceding sentence, this
Agreement shall be binding upon each of the parties hereto and their respective successors and
assigns, and shall inure to the benefit of, and be enforceable by, the Agent, each of the parties
hereto and their respective successors and assigns.




          You hereby represent that the person signing this Agreement on your behalf is
duly authorized by you to sign.




          You agree to give the Agent, at its address specified below, copies of each periodic
statement relating to activity in the Account which you provide to the Transferor, together with
such additional information relating to the Account as the Agent may from time to time reasonably
request. You further agree to give the Agent and the Transferor prompt notice if the Account
become subject to any writ, garnishment, judgment, warrant or attachment, execution or similar
process.




          Any notice, demand or other communication required or permitted to be given hereunder shall be
in writing and may be personally served or sent by facsimile or by courier service or by United
States mail and except as provided above with respect to a Notice of Effectiveness shall be deemed
to have been delivered when delivered in person or by courier service or by facsimile or three (3)
business days after deposit in the United States mail
(registered or certified, with postage prepaid and properly addressed). For the purposes
hereof, (i) the addresses of the parties hereto shall be as set forth below each party’s name
below, or, as to each party, at such other address as may be designated by such party in a written
notice to the other party and the Agent and (ii) the address of the Agent shall be WestLB AG, New
York Branch, 1211 Avenue of the Americas, New York, New York 10036, attention: Matt Tallo or at
such other address as may be designated by the Agent in a written notice to each of the parties
hereto.




          This Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon the same
instrument, (ii) shall become effective when counterparts hereof have been signed by the parties
hereto and (iii) shall be governed by and construed in accordance with the laws of the State of
New York. All parties hereby waive all rights to a trial by jury in any action or proceeding
relating to the Account or this Agreement.




4









 





          Please agree to the terms of, and acknowledge receipt of this notice by signing in the space
provided below.




	 	 	 	 	 
	Very truly yours,	 	 
	 
	 	 	 	 
	NMC FUNDING CORPORATION,	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	Title:

	 	 

	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	920 Winter Street	 	 
	Waltham, MA 02451	 	 
	Facsimile No: (781) 699-9756	 	 
	 
	 	 	 	 
	ACKNOWLEDGED AND AGREED:	 	 
	 
	 	 	 	 
	[NAME OF BANK]	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	Title:

	 	 

	 	 
	Date:

	 	 

	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	[Name, Address and Facsimile No.]	 	 
	 
	 	 	 	 
	WESTLB AG, NEW YORK BRANCH, as Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:

	 	 

	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:

	 	 

	 	 
	 

	 	 

	 	 
















 





ANNEX I



TO INTERMEDIATE CONCENTRATION ACCOUNT AGREEMENT




[Insert wire instructions for Concentration Account]





6









 








ANNEX II




TO INTERMEDIATE CONCENTRATION ACCOUNT AGREEMENT




(FORM OF NOTICE OF EFFECTIVENESS)




DATED:                                         , 200_




TO:       [Name and Address of Bank




ATTN: [     ] or [            ]




Re: Account No. [                      ]




Ladies and Gentlemen:




          We hereby give you a “Notice of Effectiveness” with respect to the above referenced Account,
as and to the extent described in our letter agreement with you dated [DATE], a copy of which is
attached hereto. You are hereby instructed to comply with the instructions of the undersigned as
set forth in that letter.




	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 


	 	 	WESTLB AG, NEW YORK BRANCH, as Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






7









 






ANNEX III




TO CONCENTRATION ACCOUNT AGREEMENT




(FORM OF INCUMBENCY CERTIFICATE)




CERTIFICATE OF AN OFFICER OF




WESTLB
AG, NEW YORK BRANCH, AS AGENT




                    The undersigned [           ] being an [Assistant Secretary] [Vice
President] of WestLB AG, New York Branch (the “Company”) hereby executes and delivers this
certificate to [                     ] (the “Bank”) on behalf of the Company pursuant to the Intermediate
Concentration Account Letter dated as of [DATE] among the Company, NMC Funding Corporation and the
Bank (as amended, restated, supplemented or otherwise modified from time to time, the
“Concentration Account Letter”). Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings assigned thereto in the Concentration Account Letter.




          The undersigned hereby certifies, as of the date hereof, that the following named persons
are duly appointed officers of the Company, holding the office or offices set forth opposite
their respective names, and each is authorized to execute and deliver, on behalf of the Company,
instructions pursuant to the terms of the Concentration Account Letter, and the signatures
appearing opposite the names of such individuals are authentic and genuine and are, in fact, the
signatures of such individuals:




8









 








	 	 	 	 	 	 	 
	Name	 	Title	 	Signature	 	 
	 


	[                     ]

	 	[                    ]
	 	 

	 	 
	 


	[                     ]

	 	[                    ]
	 	 

	 	 
	 


	[                     ]

	 	[                    ]
	 	 

	 	 






     IN
WITNESS WHEREOF, I have hereunto set my hand this  ___
day of                     , 2003.



	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	[Name] 	 
	 	 	[Assistant Secretary] [Vice President] 	 



9









 





EXHIBIT E




to




FOURTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT




FORM OF INVESTOR REPORT




[* 15 pages]




 









 








EXHIBIT F




to




FOURTH AMENDED AND RESTATED




TRANSFER AND ADMINISTRATION AGREEMENT




FORM OF TRANSFER CERTIFICATE




 









 




EXECUTION COPY


SECOND AMENDED AND RESTATED TRANSFER CERTIFICATE


          Reference is made to the Fourth Amended and Restated Transfer and Administration Agreement
dated as of October 16, 2008, (such agreement as amended, modified or supplemented from time to
time, the “Agreement”) among NMC Funding Corporation, as transferor (in such capacity, the
“Transferor”), National Medical Care, Inc., as collection agent (in such capacity, the “Collection
Agent”), Paradigm Funding LLC, as a Conduit Investor, Giro Balanced Funding Corporation as a
Conduit Investor, Liberty Street Funding LLC as a Conduit Investor, the financial institutions
from time to time a party thereto as Bank Investors, Bayerische Landesbank, New York Branch, as an
Administrative Agent, The Bank of Nova Scotia as an Administrative Agent and WestLB, New York
Branch (“WestLB”) as an Administrative Agent and as Agent. Terms defined in the Agreement are used
herein as therein defined.


          The Transferor hereby conveys, transfers and assigns to the Agent, on behalf of the Conduit
Investors and the Bank Investors, as applicable, an undivided ownership interest in the Affected
Assets. Each Incremental Transfer by the Transferor to the Agent and each reduction or increase in
the Net Investment in respect of each Incremental Transfer evidenced hereby shall be indicated by
the Agent on the grid attached hereto which is part of this Transfer Certificate.


          This Transfer Certificate is made without recourse except as otherwise provided in the
Agreement.


          This Transfer Certificate shall be governed by, and construed in accordance with, the laws of
the State of New York.


          This Transfer Certificate amends and restates in its entirety that certain Transfer
Certificate dated as of October 23, 2003 issued to WestLB, New York Branch.


[The remainder of this page intentionally left blank]


 







 








          IN WITNESS WHEREOF, the undersigned has caused this Transfer Certificate to be duly executed and delivered by its duly
authorized officer as of the date first above written.




	 	 	 	 	 
	 	NMC FUNDING CORPORATION,

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated as of October 16, 2008





2









 





Transfer Certificate

(Grid)




	 	 	 	 	 	 	 
	 	 	 	 	Increase (or	 	 
	 	 	 	 	Decrease in Net	 	Notation
	Date	 	Event1	 	Investment	 	Made By
	 	 	 	 	 	 	 







 




			
	1	 	Specify whether Incremental Transfer or Reduction in Net Investment.




 









 








EXHIBIT G




to




FOURTH AMENDED AND RESTATED




TRANSFER AND ADMINISTRATION AGREEMENT




FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT




 









 




Exhibit G


to


Fourth Amended and Restated Transfer and Administration Agreement


FORM OF ASSIGNMENT AND ASSUMPTION


Dated                      , 20_


          Reference is made to the Fourth Amended and Restated Transfer and
Administration Agreement dated as of October 16, 2008 (as the same may be amended, restated,
supplemented, or otherwise modified from time to time, the “TAA”) by and among NMC Funding
Corporation, as transferor (the “Transferor”), National Medical Care, Inc., as the initial
collection agent (the “Collection Agent”), those entities from time to time parties thereto as
“Conduit Investors”, those financial institutions from time to time parties thereto as “Bank
Investors”, those entities from time to time parties thereto as “Administrative Agents”, and WestLB
AG, New York Branch, as “Agent”. Unless otherwise defined herein, capitalized terms used herein and
not otherwise defined herein shall have the respective meanings ascribed thereto in the TAA.


     
                          (the “Assignor”) and                      (the “Assignee”)
agree as follows:


           1. The Assignor hereby assigns to the Assignee, without recourse, a percentage of the
Transferred Interest (such percentage as set forth on Schedule I hereto, to be determined
based on the relation that the amount of the Sales Price (as hereinafter defined) allocated to Net
Investment bears to the aggregate Net Investment held by the Assignor immediately prior to the
assignment contemplated hereby) owned by the Assignor under the TAA as of the Assignment Date (as
hereinafter defined). In consideration thereof, the Assignee
has paid to the Assignor an amount (the “Sales Price”) equal to $                    1, receipt of which
payment is hereby acknowledged. In addition, in consideration of the payment of the Sales Price,
the Assignor hereby sells and assigns to the Assignee, without recourse and the Assignee hereby
accepts and assumes from the Assignor, [all] [such percentage] of the Assignor’s rights,
obligations and duties under the TAA as a Bank Investor [(it being understood that the Assignee
shall (a) be obligated to effect Incremental Transfers in accordance with the TAA, notwithstanding
that the Assignor was not so obligated and (b) not have the right to elect the commencement of the
amortization of the Net Investment pursuant to the definition of


 

			
	1	 	This amount shall be an amount determined, calculated, allocated and otherwise
mutually agreed to by the Assignor and Assignee in their sole discretion.



 







 







Reinvestment Termination Date, notwithstanding that the Assignor had such right) and]2
[all] [such percentage] of the Assignor’s related rights and obligations as the owner of such
Transferred Interest under the TAA and the other Transaction Documents [,in each case,]2
as of the Assignment Date.



          2. The Assignor (i) represents and warrants that it is the legal and beneficial
owner of the Transferred Interest being assigned by it hereunder and that such interest is
free and clear of any Adverse Claim created by the Assignor; (ii) makes no representation and warranty
and assumes no responsibility with respect to any statements, warranties, or representations
made in or in connection with the TAA, the other Transaction Documents or any other instrument or
document furnished pursuant thereto or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the TAA, the other Transaction Documents, or any other
instrument or document related to the foregoing; and (iii) makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the Transferor, any
of the Originating Entities, any other Parent Group Member or the Collection Agent, or the
performance or observance by the Transferor, any of the Originating Entities, any other Parent
Group Member or the Collection Agent of any of their respective obligations under the TAA, the
Receivables Purchase Agreement, the other Transaction Documents, or any other instrument or
document furnished pursuant thereto.



          3. The Assignee (i) confirms that it has received a copy of the TAA, the
Receivables Purchase Agreement and such other instruments, documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption Agreement and to purchase such interest; (ii) agrees that it will,
independently and without reliance upon the Agent, any Investor, any Administrative Agent or
any of the foregoing’s respective Affiliates, or the Assignor and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the TAA and the other Transaction Documents; (iii) appoints
and authorizes the Agent to take such action as agent on its behalf and to exercise such
powers under the TAA, the other Transaction Documents and any other instrument or document
furnished pursuant thereto as are delegated to the Agent by the terms thereof, together with
such powers as are reasonably incidental thereto and to enforce its respective rights and interests
under the TAA, the other Transaction Documents, the Receivables, the Contracts and the Related
Security; (iv) appoints and authorizes its Administrative Agent to take such action as agent
on its behalf and to exercise such powers under the TAA, the other Transaction Documents and any
other instrument or document furnished pursuant thereto as are delegated to such
Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto,
(v) agrees that it will perform in accordance with their terms all of the obligations which by the
terms of the TAA and the other Transaction Documents are required to be performed by it as the
Assignee of the Assignor; (vi) agrees that it will not institute against any Conduit Investor
any proceeding of the type referred to in Section 10.9 of the TAA at any time prior to the date
which is one year and one day after the payment in full of all Commercial Paper issued by such
Conduit





 



			
	2	 	To be included only where the Assignor is a Conduit Investor under the TAA and is assigning
all of its rights as such to its related Bank Investors in accordance with Section 9.7 of
the TAA.





2








 




Investor; and (vii) specifies as its address for notices the address set forth in Section
2 of Schedule 1 hereto.




          4. This Assignment and Acceptance shall be effective as of the date specified
in Section 2 of Schedule 1 hereto as of the “Assignment Date” but only after [the
Administrative Agent of the Assignor’s Related Group has given its written approval and]3 a fully
executed copy of this Assignment and Assumption has been delivered to such Administrative Agent and the
Agent.




          5. Upon delivery of this Assignment and Assumption to the Agent, as of the
Assignment Date, (i) the Assignee shall have all of the rights and obligations of the Assignor
under the TAA and under the other Transaction Documents to which such Assignor is or,
immediately prior to this Assignment and Assumption, was a party with respect to such assigned
interest for all purposes of the TAA and under the other Transaction Documents to which such
assignor is, or immediately prior to this Assignment and Assumption, was a party and (ii) the
Assignor shall, to the extent provided in this Assignment and Assumption and the TAA,
relinquish its rights with respect to such assigned interest for all purposes of the TAA and
under the other Transaction Documents to which the Assignor is or, immediately prior to this
Assignment and Assumption was a party.




          6. From and after [the later of] the Assignment Date [and the date of
approval of this Assignment and Assumption by the Administrative Agent for the Assignor’s
Related Group], such Administrative Agent and the Agent shall make all payments under the
TAA and the other applicable Transaction Documents in respect of the interest assigned hereby
(including, without limitation, all payments on account of the Receivables with respect
thereto) to the Assignee. The Assignor and Assignee shall make directly between themselves all
appropriate adjustments in payments under the TAA and such other applicable Transaction
Documents for periods, if any, prior to the later of the dates specified in the preceding
sentence.




          7. This Assignment and Assumption shall be governed by, and construed in
accordance with, the laws of the State of New York.




          8. This Assignment and Assumption may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original, and all of which when taken together shall
constitute one and the same instrument.






 




			
	3	 	To be included only where the Assignor is a Bank Investor under the TAA.





3









 




          IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Acceptance to be
executed by their respective officers thereunto duly authorized, as of the date first above
written.



	 	 	 	 	 	 	 
	 	 	[ASSIGNOR]	 	 
	 
	 	 	 	 	 	 
	 
	 	By:	 	 	 	 
	 
	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	[ASSIGNEE]	 	 
	 
	 	 	 	 	 	 
	 
	 	By:	 	 	 	 
	 
	 	 	 	 

	 	 





	 	 	 	 	 
	[Approved this                      day

of                                 , 20                    
	 
	 	 	 	 
	[ADMINISTRATIVE AGENT]	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 
	 	 

Title:]
	 	 
	 
	 	 	 	 
	Accepted and recorded this                      day

of                                         , 20                    
	 
	 	 	 	 
	WESTLB AG, NEW YORK BRANCH, as Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 
	 	 

Title:
	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 
	 	 

Title:
	 	 





4








 




Schedule 1


to


Assignment and Acceptance


Dated                                         , 20                    


	 	 	 
	Section 1.
	 	 
	 
	 	 
	Percentage of Assignor’s Transferred Interest assigned hereunder
(without giving effect to any assignments thereof which have not
yet become effective):
	 	$                    
	 
	 	 
	Assignor’s Net Investment immediately prior to this assignment
	 	$                    
	 
	 	 
	Amount of Net Investment assigned to Assignee
	 	%                    
	 
	 	 
	Amount of Assignee’s remaining Net Investment
	 	%                    
	 
	 	 
	[Assignee’s Commitment (after giving effect hereto):]4
	 	$                    
	 
	 	 
	[Assignor’s remaining Commitment (after giving effect hereto)]
	 	$                    
	 
	 	 
	Section 2.
	 	 
	 
	 	 
	Assignment Date:                     , 20                    
	 	 
	 
	 	 
	Address for Notices:
	 	 





[Name of Assignor]

[Address]

[Facsimile Number/Confirmation Number]


[Name of Assignee]

[Address]

[Facsimile Number/Confirmation Number]




 



			
	4	 	To be included only where the Assignor is a Bank Investo under the TAA.






5








 





EXHIBIT H


To


FOURTH AMENDED AND RESTATED


TRANSFER AND ADMINISTRATION AGREEMENT


LIST OF ACTIONS AND SUITS


SECTIONS 3.1(g), 3.1(k) and 3.3(e)


3.1(g)(i)      Transferor:       None


3.1(g)(ii) Affiliates: The following is an excerpt from the Form 6-K filing of
Fresenius Medical Care G & Co. KGaA (the “Company”) with the Securities and Exchange Commission for
the period ending June 30, 2008:


Legal Proceedings (in thousands)


Commercial Litigation


     The Company was originally formed as a result of a series of transactions it completed
pursuant to the Agreement and Plan of Reorganization dated as of February 4, 1996, by and between
W.R. Grace & Co. and Fresenius SE (the “Merger”). At the time of the Merger, a W.R. Grace & Co.
subsidiary known as W.R. Grace & Co.-Conn. had, and continues to have, significant liabilities
arising out of product-liability related litigation (including asbestos-related actions),
pre-Merger tax claims and other claims unrelated to National Medical Care, Inc. (“NMC”), which was
W.R. Grace & Co.’s dialysis business prior to the Merger. In connection with the Merger, W.R. Grace
& Co.-Conn. agreed to indemnify the Company, FMCH, and NMC against all liabilities of W.R. Grace &
Co., whether relating to events occurring before or after the Merger, other than liabilities
arising from or relating to NMC’s operations. W.R. Grace & Co. and certain of its subsidiaries
filed for reorganization under Chapter 11 of the U.S. Bankruptcy Code (the “Grace Chapter 11
Proceedings”) on April 2, 2001.


     Prior to and after the commencement of the Grace Chapter 11 Proceedings, class action
complaints were filed against W.R. Grace & Co. and FMCH by plaintiffs claiming to be creditors of
W.R. Grace & Co.-Conn., and by the asbestos creditors’
committees on behalf of the
W.R. Grace & Co.
bankruptcy estate in the Grace Chapter 11 Proceedings, alleging among other things that the Merger
was a fraudulent conveyance, violated the uniform fraudulent transfer act and constituted a
conspiracy. All such cases have been stayed and transferred to or are pending before the U.S.
District Court as part of the Grace Chapter 11 Proceedings.


     In 2003, the Company reached agreement with the asbestos creditors’ committees on behalf of
the W.R. Grace & Co. bankruptcy estate and W.R. Grace & Co. in the matters pending in the


1







 







Grace Chapter 11 Proceedings for the settlement of all fraudulent conveyance and tax claims against
it and other claims related to the Company that arise out of the bankruptcy of W.R. Grace & Co.
Under the terms of the settlement agreement as amended (the “Settlement Agreement”), fraudulent
conveyance and other claims raised on behalf of asbestos claimants will be dismissed with prejudice
and the Company will receive protection against existing and potential future W.R. Grace & Co.
related claims, including fraudulent conveyance and asbestos claims, and indemnification against
income tax claims related to the non-NMC members of the W.R. Grace & Co. consolidated tax group
upon confirmation of a W.R. Grace & Co. bankruptcy reorganization plan that contains such
provisions. Under the Settlement Agreement, the Company will pay a total of $115,000 without
interest to the W.R. Grace & Co. bankruptcy estate, or as otherwise directed by the Court, upon
plan confirmation. No admission of liability has been or will be made. The Settlement Agreement has
been approved by the U.S. District Court. Subsequent to the Merger, W.R. Grace & Co. was involved
in a multi-step transaction involving Sealed Air Corporation (“Sealed Air,” formerly known as Grace
Holding, Inc.). The Company is engaged in litigation with Sealed Air to confirm its entitlement to
indemnification from Sealed Air for all losses and expenses incurred by the Company relating to
pre-Merger tax liabilities and Merger-related claims. Under the Settlement Agreement, upon
confirmation of a plan that satisfies the conditions of the Company’s payment obligation, this
litigation will be dismissed with prejudice.




     In April 2008, W.R. Grace & Co. announced an agreement in principle with the asbestos
creditors’ and equity security holders’ committees in the Grace Chapter 11 Proceedings to settle
all present and future asbestos-related personal injury claims. The agreement in principle and W.R.
Grace & Co.’s related bankruptcy reorganization plan are subject to conditions including resolution
of claims of other creditors and Bankruptcy Court and District Court approvals.



     On April 4, 2003, FMCH filed a suit in the U. S. District Court for the Northern District of
California, styled Fresenius USA, Inc., et al., v. Baxter International Inc., et al., Case No. C
03-1431, seeking a declaratory judgment that FMCH does not infringe on patents held by Baxter
International Inc. and its subsidiaries and affiliates (“Baxter”), that the patents are invalid,
and that Baxter is without right or authority to threaten or maintain suit against FMCH for alleged
infringement of Baxter’s patents. In general, the alleged patents concern the use of touch screen
interfaces for hemodialysis machines. Baxter filed counterclaims against FMCH seeking more than
$140,000 in monetary damages and injunctive relief, and alleging that FMCH willfully infringed on
Baxter’s patents. On July 17, 2006, a jury verdict was entered in favor of FMCH finding that all
the asserted claims of the Baxter patents are invalid as obvious and/or anticipated in light of
prior art. On February 13, 2007, the court granted Baxter’s motion to set aside the jury’s verdict
in favor of FMCH and reinstated the patents and entered judgment of infringement. Following a
retrial on damages, the court entered judgment on November 6, 2007 in favor of Baxter on a jury
award of $14,300. On April 4, 2008, the court denied Baxter’s motion for a new trial, established a
royalty payable to Baxter of 10% of the sales price for continuing sales of FMCH’s 2008K
hemodialysis machines and 7% of the sales price of related disposables, parts and service beginning
November 7, 2007, and enjoined sales of the 2008K machine effective January 1, 2009. We have
appealed the court’s rulings to the Court of Appeals for the Federal Circuit. We are confident that
we will prevail on appeal and have made no provision in our financial statements for any potential
liability in this matter. If we are unsuccessful on all




2












 




appeals, including any appeal of the royalty, the royalties payable to Baxter on the machines and
disposable supplies that are subject to the court’s order are estimated to be in the range of $2
million to $4 million per month. In the interim period until our appeal is decided, we are funding
a court-approved escrow account at the rate noted above. If we win the appeal, the escrowed funds
will be returned to us with interest. We are pursuing design modifications to the 2008K machine
that we expect will limit the scope of royalty payment exposure and permit the continued sale of
the modified 2008K machine after the January 1, 2009 injunction effective date, irrespective of the
outcome of our appeal.




     Gambro Pty Limited and Gambro Lundia AB (“Gambro AB” and, together with Gambro Pty Limited,
“the Gambro Group”) commenced litigation against FMC AG & Co. KGaA’s Australian subsidiary,
Fresenius Medical Care Australia Pty Limited (“Fresenius Medical Care Australia”) regarding
infringement and damages with respect to a Gambro AB patent protecting intellectual property in
relation to a system for preparation of dialysis or replacement fluid, the Gambro Bicart device in
Australia (the “Gambro Patent”). As a result of the commercialization of a system for the
preparation of dialysis fluid based on the Fresenius Medical Care Bibag device in Australia, the
Australian courts concluded that Fresenius Medical Care Australia infringed the Gambro Patent. In
May 2008, the Gambro Group and Fresenius Medical Care Australia and FMC AG & Co. KGaA entered into
a Deed of Settlement and Release pursuant to which Fresenius Medical Care made certain cash
payments to the Gambro Group and pursuant to which the proceedings and all claims under the Gambro
Patent, including any claims for relief for losses alleged to have been incurred after the expiry
of the Gambro Patent, were resolved.



     Two patent infringement actions have been pending in Germany between Gambro Industries
(“Gambro”) on the one side and D-GmbH and FMC AG & Co. KGaA on the other side (hereinafter
collectively “Fresenius Medical Care”). Gambro herein alleged patent infringements concerning a
patent on a device for the preparation of medical solutions by Fresenius Medical Care. The first
case was dismissed as being unfounded. Such decision has already become final. In the second case,
the District Court of Mannheim rendered a judgement on June 27, 2008 deciding in favor of Gambro
and declaring that Fresenius Medical Care has infringed a patent claim. Accordingly, the court
ordered Fresenius Medical Care to pay compensation (to be determined in a separate court
proceeding) for alleged infringement and to stop offering the alleged patent infringing technology
in its current form in Germany. Such verdict could be enforced provisionally by way of security to
be deposited by Gambro, however the Company has received no notice that Gambro has applied for
provisional enforceability, as yet. D-GmbH brought an invalidity action in the Federal German
Patent Court (“BPatG”) against Gambro’s patent. This case is currently pending with the Federal
Court of Justice as the court of appeal. Fresenius Medical Care has also filed an appeal against
the District Court’s verdict. Irrespective of the outcome of the appeal, Fresenius Medical Care
pursues to develop design modifications to the concerned devices that Fresenius Medical Care
expects will enable it to provide an alternative technical solution. In view of the pending appeal
against BPatG’s verdict and Fresenius Medical Care’s appeal against the District Court’s verdict,
Fresenius Medical Care continues to believe that the alleged patent infringing technology does not
infringe any valid patent claims of Gambro. Therefore, the Company has made no provision in the
financial statements for any potential liability in this matter.



3









 





Other Litigation and Potential Exposures




     Renal Care Group (“RCG”) was named as a nominal defendant in a second amended complaint filed
September 13, 2006 in the Chancery Court for the State of Tennessee Twentieth Judicial District at
Nashville against former officers and directors of RCG which purports to constitute a class action
and derivative action relating to alleged unlawful actions and breaches of fiduciary duty in
connection with the Company’s acquisition of RCG (the “RCG Acquisition”) and in connection with
alleged improper backdating and/or timing of stock option grants. The amended complaint was styled
Indiana State District Council of Laborers and Hod Carriers Pension Fund, on behalf of itself and
all others similarly situated and derivatively on behalf of RCG, Plaintiff, vs. RCG, Gary Brukardt,
William P. Johnston, Harry R. Jacobson, Joseph C. Hutts, William V. Lapham, Thomas A. Lowery,
Stephen D. McMurray, Peter J. Grua, C. Thomas Smith, Ronald Hinds, Raymond Hakim and R. Dirk
Allison, Defendants. The complaint sought damages against former officers and directors and did not
state a claim for money damages directly against RCG. On August 30, 2007, this suit was dismissed
by the trial court without leave to amend. Plaintiff subsequently appealed and the matter remains
pending in the appellate court of Tennessee.



     In October 2004, FMCH and its subsidiaries, including RCG (prior to the RCG Acquisition),
received subpoenas from the U.S. Department of Justice, Eastern District of New York in connection
with a civil and criminal investigation, which requires production of a broad range of documents
relating to FMCH’s and RCG’s operations, with specific attention to documents relating to
laboratory testing for parathyroid hormone (“PTH”) levels and vitamin D therapies. The Company is
cooperating with the government’s requests for information. The Company believes that it has
fulfilled all requests for information made by government investigators in this matter, and that it
has complied with applicable laws relating to PTH testing and use of vitamin D therapies.



     FMCH and its subsidiaries, including RCG (prior to the RCG Acquisition), received a subpoena
from the U.S. Department of Justice, Eastern District of Missouri, in connection with a joint civil
and criminal investigation. FMCH received its subpoena in April 2005. RCG received its subpoena in
August 2005. The subpoenas require production of a broad range of documents relating to FMCH’s and
RCG’s operations, with specific attention to documents related to clinical quality programs,
business development activities, medical director compensation and physician relationships, joint
ventures, and anemia management programs, RCG’s supply company, pharmaceutical and other services
that RCG provides to patients, RCG’s relationships to pharmaceutical companies, and RCG’s purchase
of dialysis equipment from FMCH. The Office of the Inspector General of the U.S. Department of
Health and Human Services and the U.S. Attorney’s office for the Eastern District of Texas have
also confirmed that they are participating in the review of the anemia management program issues
raised by the U.S. Attorney’s office for the Eastern District of Missouri. On July 17, 2007, the
U.S. Attorney’s office filed a civil complaint against RCG and FMCH in its capacity as RCG’s
current corporate parent in United States District Court, Eastern District of Missouri. The
complaint seeks monetary damages and penalties with respect to issues arising out of the operation
of RCG’s Method II supply company through 2005, prior to the date of FMCH’s acquisition of RCG. The



4









 







complaint is styled United States of America ex rel. Julie Williams et al. vs. Renal Care Group,
Renal Care Group Supply Company and FMCH. The Company believes that RCG’s operation of its Method
II supply company was in compliance with applicable law and will defend this litigation vigorously.
We will continue to cooperate in the ongoing investigation.



     In May 2006, RCG received a subpoena from the U.S. Department of Justice, Southern District of
New York in connection with an investigation into RCG’s administration of its stock option programs
and practices, including the procedure under which the exercise price was established for certain
of the option grants. The subpoena required production of a broad range of documents relating to
the RCG stock option program prior to the RCG Acquisition. The Company believes that is has
fulfilled all requests for information made by government investigators in this matter, and that
RCG complied with applicable laws relating to the issuance of stock options.



     In August 2007, the Sheet Metal Workers National Pension Fund filed a complaint in the United
States District Court for the Central District of California, Western Division (Los Angeles),
alleging that Amgen, Inc., the Company and DaVita Inc., marketed Amgen’s products, Epogen® and
Aranesp®, to hemodialysis patients for uses not approved by the FDA and thereby caused a putative
class of commercial insurers to pay for unnecessary prescriptions of these products. Although the
court dismissed the original allegations against the Company, it granted plaintiff leave to amend
and this litigation was subsequently consolidated with other cases against Epogen® and Aranesp®
Off-Label Marketing and Sales Practices Multidistrict Litigation and assigned to the Central
District of California. On July 2, 2008, a consolidated complaint was filed in the Multidistrict
Litigation that renews allegations against the Company and DaVita, in addition to those against
Amgen.



     On November 27, 2007, the United States District Court for the Western District of Texas (El
Paso) unsealed and permitted service of two complaints previously filed under seal by a qui tam
relator, a former FMCH local clinic employee (Qui tarn is a legal provision under the United States
False Claims Act, which allows for private individuals to bring suit on behalf of the U.S. federal
government, as far as such individuals believe to have knowledge of presumable fraud committed by
third parties). The first complaint alleges that a nephrologist unlawfully employed in his practice
an assistant to perform patient care tasks that the assistant was not licensed to perform and that
Medicare billings by the nephrologist and FMCH therefore violated the False Claims Act. The second
complaint alleges that FMCH unlawfully retaliated against the relator by discharging her from
employment constructively. The United States Attorney for the Western District of Texas has
declined to intervene and to prosecute on behalf of the United States. Counsel for the nephrologist
has asserted that a criminal investigation of the relator’s allegations is continuing and has moved
the Court to stay all activity in the qui tam until the alleged criminal investigation has
concluded. FMCH has received no other notice of the pendency of any criminal investigation related
to this matter.



     From time to time, the Company is a party to or may be threatened with other litigation or
arbitration, claims or assessments arising in the ordinary course of its business. Management
regularly analyzes current information including, as applicable, the Company’s defenses and



5









 







insurance coverage and, as necessary, provides accruals for probable liabilities for the eventual
disposition of these matters.



     The Company, like other health care providers, conducts its operations under intense
government regulation and scrutiny. It must comply with regulations which relate to or govern the
safety and efficacy of medical products and supplies, the operation of manufacturing facilities,
laboratories and dialysis clinics, and environmental and occupational health and safety. The
Company must also comply with the Anti-Kickback Statute, the False Claims Act, the Stark Statute,
and other federal and state fraud and abuse laws. Applicable laws or regulations may be amended, or
enforcement agencies or courts may make interpretations that differ from the Company’s
interpretations or the manner in which it conducts its business. Enforcement has become a high
priority for the federal government and some states. In addition, the provisions of the False
Claims Act authorizing payment of a portion of any recovery to the party bringing the suit
encourage private plaintiffs to commence “whistle blower” actions. By virtue of this regulatory
environment, as well as the Company’s corporate integrity agreement with the U.S. federal
government, the Company’s business activities and practices are subject to extensive review by
regulatory authorities and private parties, and continuing audits, investigative demands,
subpoenas, other inquiries, claims and litigation relating to the Company’s compliance with
applicable laws and regulations. The Company may not always be aware that an inquiry or action has
begun, particularly in the case of “whistle blower” actions, which are initially filed under court
seal.



     The Company operates many facilities throughout the United States. In such a decentralized
system, it is often difficult to maintain the desired level of oversight and control over the
thousands of individuals employed by many affiliated companies. The Company relies upon its
management structure, regulatory and legal resources, and the effective operation of its compliance
program to direct, manage and monitor the activities of these employees. On occasion, the Company
may identify instances where employees, deliberately or inadvertently, have submitted inadequate or
false billings. The actions of such persons may subject the Company and its subsidiaries to
liability under the Anti-Kickback Statute, the Stark Statute and the False Claims Act, among other
laws.



     Physicians, hospitals and other participants in the health care industry are also subject to a
large number of lawsuits alleging professional negligence, malpractice, product liability, worker’s
compensation or related claims, many of which involve large claims and significant defense costs.
The Company has been and is currently subject to these suits due to the nature of its business and
expects that those types of lawsuits may continue. Although the Company maintains insurance at a
level which it believes to be prudent, it cannot assure that the coverage limits will be adequate
or that insurance will cover all asserted claims. A successful claim against the Company or any of
its subsidiaries in excess of insurance coverage could have a material adverse effect upon it and
the results of its operations. Any claims, regardless of their merit or eventual outcome, could
have a material adverse effect on the Company’s reputation and business.



6









 





     The Company has also had claims asserted against it and has had lawsuits filed against it
relating to alleged patent infringements or businesses that it has acquired or divested. These
claims and suits relate both to operation of the businesses and to the acquisition and divestiture
transactions. The Company has, when appropriate, asserted its own claims, and claims for
indemnification. A successful claim against the Company or any of its subsidiaries could have a
material adverse effect upon its business, financial condition, and the results of its operations.
Any claims, regardless of their merit or eventual outcome, could have a material adverse effect on
the Company’s reputation and business.



Accrued Special Charge for Legal Matters




     At December 31, 2001, the Company recorded a pre-tax special charge of $258,159 to reflect
anticipated expenses associated with the defense and resolution of pre-Merger tax claims,
Merger-related claims, and commercial insurer claims. The costs associated with the Settlement
Agreement and settlements with insurers have been charged against this accrual. With the exception
of the proposed $115,000 payment under the Settlement Agreement, all other matters included in the
special charge have been resolved. While the Company believes that its remaining accrual reasonably
estimates its currently anticipated costs related to the continued defense and resolution of this
matter, no assurances can be given that its actual costs incurred will not exceed the amount of
this accrual.



	 	 	 	 	 
	3.1(k)

	 	Tradenames:
	 	Renal Care Group
	 

	 	 	 	National Nephrology Associates
	 
	 	 	 	 
	 

	 	Mergers:
	 	On April 2, 2004, Renal Care Group, Inc.
completed its acquisition of National Nephrology
Associates, Inc.
	 
	 	 	 	 
	 

	 	 	 	On March 31, 2006, FMCH completed the
acquisition of Renal Care Group, Inc.
	 
	 	 	 	 
	3.3(e)

	 	Collection Agent:
	 	None
	 

	 	Affiliates:
	 	See disclosure for Section 3.1(g)(ii) above.







7









 








EXHIBIT I




to




FOURTH AMENDED AND RESTATED




TRANSFER AND ADMINISTRATION AGREEMENT




LOCATION OF RECORDS





 











 





FMS




Bio-Medical Applications of Aguadilla, Inc.




Bio-Medical Applications of Aguadilla, Inc., PUERTO RICO

BILLING GROUP, ANTILLAS WAREHOUSE & OFFICE PARK,

461 FRANCIA ST., SUITE 1-401, SAN JUAN, PR, 917




Bio-Medical Applications of Alabama, Inc.


Bio-Medical Applications of Alabama, Inc., MOBILE BILLING

GROUP, 6420 HILLCREST PARK CT, SUITE 210, MOBILE, AL,
36608




Bio-Medical Applications of Anacostia, Inc.


Bio-Medical Applications of Anacostia, Inc., STEEL CITY BILLING

GROUP, BMA PITTSBURGH, 190 BILMAR DR., SUITE 375,

PITTSBURGH, PA, 15205




Bio-Medical Applications of Arecibo, Inc.




Bio-Medical Applications of Arecibo, Inc., PUERTO RICO

BILLING GROUP, ANTILLAS WAREHOUSE & OFFICE PARK,

461 FRANCIA ST., SUITE 1-401, SAN JUAN, PR, 917




Bio-Medical Applications of Arkansas, Inc.


Bio-Medical Applications of Arkansas, Inc., MOBILE BILLING

GROUP, 6420 HILLCREST PARK CT, SUITE 210, MOBILE, AL,
36608




Bio-Medical Applications of Bayamon, Inc.




Bio-Medical Applications of Aguadilla, Inc., PUERTO RICO

BILLING GROUP, ANTILLAS WAREHOUSE & OFFICE PARK,

461 FRANCIA ST., SUITE 1-401, SAN JUAN, PR, 917




Bio-Medical Applications of Blue Springs, Inc.




Bio-Medical Applications of Aguadilla, Inc., PUERTO RICO

BILLING GROUP, ANTILLAS WAREHOUSE & OFFICE PARK,

461 FRANCIA ST., SUITE 1-401, SAN JUAN, PR, 917




Bio-Medical Applications of Caguas, Inc.




Bio-Medical Applications of Caguas, Inc., PUERTO RICO

BILLING GROUP, ANTILLAS WAREHOUSE & OFFICE PARK,

461 FRANCIA ST., SUITE 1-401, SAN JUAN, PR, 917




Bio-Medical Applications of Texas, Inc.




Bio-Medical Applications of Texas, Inc., ALBUQUERQUE

BILLING GROUP, 909 VIRGINIA NE, SUITE 112,

ALBUQUERQUE, NM, 87108


Bio-Medical Applications of Texas, Inc., LUBBOCK BILLING

GROUP, 4747 SOUTH LOOP 289., SUITE 120., LUBBOCK, TX,
79424



Bio-Medical Applications of Texas, Inc., NORTH TEXAS BILLING

GROUP, 1485 RICHARDSON DRIVE #100, , RICHARDSON,

TX, 75080



Bio-Medical Applications of Texas, Inc., SAN ANTONIO BILLING

GROUP, 6100 BANDERA ROAD, SUITE 601, SAN ANTONIO,

TX, 78238




Bio-Medical Applications of Texas, Inc., TYLER BILLING, 3910

BROOKSIDE DRIVE, SUITE 100, TYLER, TX, 75701


Bio-Medical Applications of Texas, Inc., WACO BILLING

GROUP, UPTOWN PLAZA, 1110 RICHLAND DR., #3, WACO,

TX, 76710




Bio-Medical Applications of the District of Columbia, Inc.




Bio-Medical Applications of the District of Columbia, Inc., STEEL

CITY BILLING GROUP, BMA PITTSBURGH, 190 BILMAR DR.,

SUITE 375, PITTSBURGH, PA, 15205




Bio-Medical Applications of Ukiah, Inc.


Bio-Medical Applications of Ukiah, Inc., PACIFIC NW BILLING

GROUP, 4560 S. COACH DRIVE, SUITE 100, TUCSON, AZ,

85714




Bio-Medical Applications of Virginia, Inc.




Bio-Medical Applications of Virginia, Inc., ROANOKE BILLING

GROUP, 2830 KEAGY ROAD, , SALEM, VA, 24153




Bio-Medical Applications of West Virginia, Inc., ROANOKE

BILLING GROUP, 2830 KEAGY ROAD, . SALEM, VA, 24153


Bio-Medical Applications of West Virginia, Inc., KENTUCKY

BILLING GROUP, 6100 DUTCHMANS LANE,

12TH FLOOR, LOUISVILLE, KY, 40205




Bio-Medical Applications of Wisconsin, Inc.




NNA of Louisiana, LLC




NNA of Louisiana, LLC, INDIANAPOLIS BILLING, 10585 NORTH

MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN, 46290




NNA of Oklahoma, L.L.C.




NNA of Oklahoma, L.L.C., TYLER BILLING, 3910 BROOKSIDE

DRIVE, SUITE 100, TYLER, TX, 75701




NNA of Rhode Island, Inc.


NNA of Rhode Island, Inc., CLEVELAND BILLING, 25050

COUNTRY CLUB BOULEVARD, SUITE 250, NORTH OLMSTED,

OH, 44070




NNA of Toledo, Inc.




NNA of Toledo, Inc., INDIANAPOLIS BILLING, 10585 NORTH

MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN, 46290




NNA-Saint Barnabas, L.L.C.


NNA-Saint Barnabas, L.L.C., CLEVELAND BILLING, 25050

COUNTRY CLUB BOULEVARD, SUITE 250, NORTH OLMSTED,

OH, 44070




NNA-Saint Barnabas-Livingston, L.L.C.




NNA-Saint Barnabas-Livingston, L.L.C., CLEVELAND BILLING,

25050 COUNTRY CLUB BOULEVARD, SUITE 250, NORTH

OLMSTED, OH, 44070




Norcross Dialysis Center, LLC




Norcross Dialysis Center, LLC, INDIANAPOLIS BILLING, 10585

NORTH MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN,

46290




NORMAN NEPHROLOGY, P.L.L.C.




NORMAN NEPHROLOGY, P.L.L.C., LUBBOCK BILLING GROUP,

4747 SOUTH LOOP 289,, SUITE 120,, LUBBOCK, TX, 79424




 









 





Bio-Medical Applications of California, Inc.



Bio-Medical Applications of California, Inc., PACIFIC NW
 BILLING GROUP, 4560 S. COACH DRIVE,
SUITE 100, 
TUCSON, AZ, 85714


Bio-Medical Applications of California, Inc., PACIFIC NW
 BILLING GROUP, 4560 S. COACH DRIVE, SUITE
100, 
TUCSON, AZ, 85714, SOUTHERN CALIFORNIA BILLING
 GROUP, 1337 EAST THOUSAND OAKS BLVD, SUITE 216,

THOUSAND OAKS, CA, 91362


Bio-Medical Applications of California, Inc., PACIFIC NW
 BILLING GROUP, 4560 S. COACH DRIVE, SUITE
100, 
TUCSON, AZ, 85714, SOUTHERN CALIFORNIA BILLING
 GROUP, 1337 EAST THOUSAND OAKS BLVD, SUITE 216,

THOUSAND OAKS, CA, 91362, SAN DIEGO BILLING GROUP, 
2917 S. DOBSON, SUITE 101, MESA, AZ, 85202


Bio-Medical Applications of Camarillo, Inc.

 Bio-Medical Applications of Camarillo, Inc., SOUTHERN

CALIFORNIA BILLING GROUP, 1337 EAST THOUSAND OAKS
 BLVD, SUITE 216, THOUSAND OAKS, CA, 91362


Bio-Medical Applications of Capitol Hill, Inc.
 
Bio-Medical Applications of Capitol Hill, Inc.,
STEEL CITY
 BILLING GROUP, BMA PITTSBURGH, 190 BILMAR DR., SUITE
 375, PITTSBURGH, PA, 15205


Bio-Medical Applications of Carolina, Inc.




Bio-Medical Applications of Carolina, Inc., PUERTO RICO

BILLING GROUP, ANTILLAS WAREHOUSE & OFFICE PARK,

461 FRANCIA ST., SUITE 1-401, SAN JUAN, PR, 917



Bio-Medical Applications of Carson, Inc.



Bio-Medical Applications of Carson, Inc., SOUTHERN

CALIFORNIA BILLING GROUP, 1337 EAST THOUSAND OAKS

BLVD, SUITE 216, THOUSAND OAKS, CA, 91362



Bio-Medical Applications of Clinton, Inc.



Bio-Medical Applications of Clinton, Inc., FAYETTEVILLE

BILLING GROUP, 4200 MORGANTON ROAD, SUITE 300,

FAYETTEVILLE, NC, 28314



Bio-Medical Applications of Columbia Heights, Inc.



Bio-Medical Applications of Columbia Heights, Inc., STEEL CITY

BILLING GROUP, BMA PITTSBURGH, 190 BILMAR DR., SUITE

375, PITTSBURGH, PA, 15205



Bio-Medical Applications of Connecticut, Inc.



Bio-Medical Applications of Connecticut, Inc., NEW BEDFORD

BILLING GROUP, 700 PLEASANT STREET, , NEW BEDFORD,

MA, 2740



Bio-Medical Applications of Delaware, Inc.



Bio-Medical Applications of Delaware, Inc., ALLENTOWN

BILLING GROUP, 861 MARCON BLVD SUITE 2, ,

ALLENTOWN, PA, 18109




Bio-Medical Applications of Dover, Inc.



Bio-Medical Applications of Dover, Inc., NEW BEDFORD

BILLING GROUP, 700 PLEASANT STREET,, NEW BEDFORD,

MA, 2740




Bio-Medical Applications of Eureka, Inc.




Bio-Medical Applications of Wisconsin, Inc., UPPER MIDWEST

BILLING GROUP, 9120 SPRINGBROOK DRIVE, , COON

RAPIDS, MN, 55433

Bio-Medical Applications of Wisconsin, Inc., MICHIGAN BILLING

GROUP, 3500 MASSILLON ROAD SUITE 230, , UNIONTOWN,

OH, 44685




Brazoria Kidney Center, Inc.




Brazoria Kidney Center, Inc., TYLER BILLING, 3910

BROOKSIDE DRIVE, SUITE 100, TYLER, TX, 75701



Brevard County Dialysis, LLC



Brevard County Dialysis, LLC, INDIANAPOLIS BILLING, 10585

NORTH MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN,

46290



Clayton County Dialysis, LLC



Clayton County Dialysis, LLC, INDIANAPOLIS BILLING, 10585

NORTH MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN,

46290



Clermont Dialysis Center, LLC




Clermont Dialysis Center, LLC, INDIANAPOLIS BILLING, 10585

NORTH MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN,

46290



Columbus Area Renal Alliance, LLC



Columbus Area Renal Alliance, LLC, CLEVELAND BILLING,

25050 COUNTRY CLUB BOULEVARD, SUITE 250, NORTH

OLMSTED, OH, 44070



Conejo Valley Dialysis, Inc.



Conejo Valley Dialysis, Inc., SOUTHERN CALIFORNIA BILLING

GROUP, 1337 EAST THOUSAND OAKS BLVD, SUITE 216,

THOUSAND OAKS, CA, 91362



Dialysis America Georgia, LLC



Dialysis America Georgia, LLC, KNOXVILLE BILLING GROUP,

BILLING GROUP, 1512 COLEMAN ROAD, SUITE 308,

KNOXVILLE, TN, 37919



Dialysis Associates of Northern New Jersey, L.L.C.



Dialysis Associates of Northern New Jersey, L.L.C.,

ALLENTOWN BILLING GROUP, 861 MARCON BLVD SUITE 2,
 ,
ALLENTOWN, PA, 18109



Dialysis Associates, LLC



Dialysis Associates, LLC, INDIANAPOLIS BILLING, 10585

NORTH MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN,

46290




Dialysis Centers of America - Illinois, Inc.


Dialysis Centers of America - Illinois, Inc., CHICAGO BILLING

GROUP, ONE WESTBROOK DRIVE, TOWER 1, SUITE 1000,

WESTCHESTER, IL, 60154

Dialysis Centers of America - Illinois, Inc., CLEVELAND BILLING,

25050 COUNTRY CLUB BOULEVARD, SUITE 250, NORTH

OLMSTED, OH, 44070




Northeast Alabama Kidney Clinic, Inc.



Northeast Alabama Kidney Clinic, Inc., INDIANAPOLIS BILLING,

10585 NORTH MERIDIAN STREET, SUITE 160, INDIANAPOLIS,

IN, 46290




Northern New Jersey Dialysis, LLC




Northern New Jersey Dialysis, LLC, ALLENTOWN BILLING

GROUP, 861 MARCON BLVD SUITE 2, ALLENTOWN, PA,

18109



Physicians Dialysis Company, Inc.



Physicians Dialysis Company, Inc., CLEVELAND BILLING, 25050

COUNTRY CLUB BOULEVARD, SUITE 250, NORTH OLMSTED,

OH, 44070



RCG Bloomington, LLC




RCG Bloomington, LLC, INDIANAPOLIS BILLING, 10585 NORTH

MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN, 46290



RCG East Texas, LLP




RCG East Texas, LLP, TYLER BILLING, 3910 BROOKSIDE



DRIVE, SUITE 100, TYLER, TX, 75701



RCG Indiana, L.L.C.




RCG Indiana, L.L.C., INDIANAPOLIS BILLING, 10585 NORTH

MERIDIAN STREET, SUITE 160. INDIANAPOLIS, IN, 46290



RCG Irving, LLP




RCG Irving, LLP, TYLER BILLING, 3910 BROOKSIDE DRIVE,

SUITE 100, TYLER, TX, 75701



RCG Martin, LLC




RCG Martin, LLC, INDIANAPOLIS BILLING, 10585 NORTH

MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN, 46290



RCG Memphis East, LLC



RCG Memphis East, LLC, INDIANAPOLIS BILLING, 10585

NORTH MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN,

46290



RCG Mississippi, Inc.




RCG Mississippi, Inc., INDIANAPOLIS BILLING, 10585 NORTH

MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN, 46290

RCG Mississippi, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE,

SUITE 100, TYLER, TX, 75701




RCG Mississippi, Inc., MESA BILLING, 1750 SOUTH MESA

DRIVE, SUITE 110, MESA, AZ, 85210




 









 




Bio-Medical Applications of Eureka, Inc., PACIFIC NW BILLING
 GROUP, 4560 S. COACH DRIVE, SUITE
100, TUCSON, AZ,
 85714



Bio-Medical Applications of Fayetteville, Inc.



Bio-Medical Applications of Fayetteville, Inc., FAYETTEVILLE
 BILLING GROUP, 4200 MORGANTON ROAD,
SUITE 300,
 FAYETTEVILLE, NC, 28314



Bio-Medical Applications of Florida, Inc.



Bio-Medical Applications of Florida, Inc., ORLANDO BILLING
 GROUP, BMA ORLANDO, INC., 1155 W
STATE ROAD 434,
 SUITE 125, LONGWOOD, FL, 32750



 , TAMPA BILLING GROUP, BMA TAMPA INC., 5625 WEST
 WATERS AVENUE, SUITE A, TAMPA, FL, 33634



Bio-Medical Applications of Glendora, Inc.



Bio-Medical Applications of Glendora, Inc., SOUTHERN
 CALIFORNIA BILLING GROUP, 1337 EAST THOUSAND
OAKS
 BLVD, SUITE 216, THOUSAND OAKS, CA, 91362



Bio-Medical Applications of Guayama, Inc.



Bio-Medical Applications of Guayama, Inc., PUERTO RICO
 BILLING GROUP, ANTILLAS WAREHOUSE & OFFICE
PARK,
 461 FRANCIA ST., SUITE 1-401, SAN JUAN, PR, 917



Bio-Medical Applications of Humacao, Inc.



Bio-Medical Applications of Humacao, Inc., PUERTO RICO
 BILLING GROUP, ANTILLAS WAREHOUSE & OFFICE
PARK,
 461 FRANCIA ST., SUITE 1-401, SAN JUAN, PR, 917



Bio-Medical Applications of Illinois, Inc.


Bio-Medical Applications of Illinois, Inc., CHICAGO
BILLING
 GROUP, ONE WESTBROOK DRIVE, TOWER 1, SUITE 1000,
 WESTCHESTER, IL, 60154



Bio-Medical Applications of Indiana, Inc.


Bio-Medical Applications of Indiana, Inc., MICHIGAN BILLING
 GROUP, 3500 MASSILLON ROAD, SUITE 230,
UNIONTOWN,
 OH, 44685



Bio-Medical Applications of Maine, Inc.



Bio-Medical Applications of Maine, Inc., NEW BEDFORD
 BILLING GROUP, 700 PLEASANT STREET, , NEW
BEDFORD,
 MA, 2740



Bio-Medical Applications of Manchester, Inc.



Dialysis Centers of America - Illinois, Inc., INDIANAPOLIS
 BILLING, 10585 NORTH MERIDIAN STREET,
SUITE 160,
 INDIANAPOLIS, IN, 46290



Dialysis Management Corporation



Dialysis Management Corporation, TYLER BILLING, 3910
 BROOKSIDE DRIVE, SUITE 100, TYLER, TX,
75701



Dialysis Services of Cincinnati, Inc.



Dialysis Services of Cincinnati, Inc., NORTHERN OHIO BILLING
 GROUP, 3500 MASSILLON ROAD, SUITE 280,
UNIONTOWN, 
OH, 44685



Dialysis Specialists of Topeka, Inc.



Dialysis Specialists of Topeka, Inc., ARIZONA BILLING GROUP,

2917 S. DOBSON, SUITE 101, MESA, AZ, 85202



Dialysis Specialists of Tulsa, Inc.



Dialysis Specialists of Tulsa, Inc., LUBBOCK BILLING GROUP,
 4747 SOUTH LOOP 289,, SUITE 120,,
LUBBOCK, TX, 79424



Douglas County Dialysis, LLC



Douglas County Dialysis, LLC, INDIANAPOLIS BILLING, 10585
 NORTH MERIDIAN STREET, SUITE 160,
INDIANAPOLIS, IN,
 46290



Du Page Dialysis, Ltd.



Du Page Dialysis, Ltd., CHICAGO BILLING GROUP, ONE
 WESTBROOK DRIVE, TOWER 1, SUITE 1000,

WESTCHESTER, IL, 60154



Everest Healthcare Indiana, Inc.



Everest Healthcare Indiana, Inc., KENTUCKY BILLING GROUP,

6100 DUTCHMANS LANE, 12TH FLOOR, LOUISVILLE, KY,

40205

Everest Healthcare Indiana, Inc., NORTHERN OHIO BILLING

GROUP, 3500 MASSILLON ROAD, SUITE 280, UNIONTOWN,

OH, 44685

Everest Healthcare Indiana, Inc., MICHIGAN BILLING GROUP,

3500 MASSILLON ROAD SUITE 230, , UNIONTOWN, OH,

44685



Everest Healthcare Ohio, Inc.



Everest Healthcare Ohio, Inc., NORTHERN OHIO BILLING
 GROUP, 3500 MASSILLON ROAD, SUITE 280,
UNIONTOWN,
 OH, 44685



RCG University Division, Inc.



RCG University Division, Inc., CLEVELAND BILLING, 25050
 COUNTRY CLUB BOULEVARD, SUITE 250, NORTH
OLMSTED,
 OH, 44070



Renal Care Group Alaska, Inc.



Renal Care Group Alaska, Inc., MESA BILLING, 1750 SOUTH
 MESA DRIVE, SUITE 110, MESA, AZ, 85210



Renal Care Group East, Inc.



Renal Care Group East, Inc., CLEVELAND BILLING, 25050
 COUNTRY CLUB BOULEVARD, SUITE 250, NORTH
OLMSTED,
 OH, 44070



Renal Care Group Northwest, Inc.



Renal Care Group Northwest, Inc., MESA BILLING, 1750 SOUTH
 MESA DRIVE, SUITE 110, MESA, AZ, 85210



Renal Care Group of the Midwest, Inc.



Renal Care Group of the Midwest, Inc., TYLER BILLING, 3910
 BROOKSIDE DRIVE, SUITE 100, TYLER, TX,
75701



Renal Care Group of the Ozarks, LLC



Renal Care Group of the Ozarks, LLC, TYLER BILLING, 3910
 BROOKSIDE DRIVE, SUITE 100, TYLER, TX,
75701



Renal Care Group of the South, Inc.



Renal Care Group of the South, Inc., INDIANAPOLIS BILLING, 
10585 NORTH MERIDIAN STREET, SUITE 160,
INDIANAPOLIS,
 IN, 46290



Renal Care Group of the Southeast, Inc.



Renal Care Group of the Southeast, Inc., INDIANAPOLIS BILLING,
 10585 NORTH MERIDIAN STREET, SUITE
160, INDIANAPOLIS,
 IN, 46290



Renal Care Group South New Mexico, LLC



Renal Care Group South New Mexico, LLC, TYLER BILLING, 3910
 BROOKSIDE DRIVE, SUITE 100, TYLER, TX,
75701



Renal Care Group Southwest, L.P.




 









 




Bio-Medical Applications of Manchester, Inc. , NEW BEDFORD
 BILLING GROUP, 700 PLEASANT STREET,, NEW
BEDFORD,
 MA, 2740



Bio-Medical Applications of Maryland, Inc.



Bio-Medical Applications of Maryland, Inc., STEEL CITY BILLING
 GROUP, BMA PITTSBURGH, 190 BILMAR
DR., SUITE 375,
 PITTSBURGH, PA, 15205



Bio-Medical Applications of Massachusetts, Inc.



Bio-Medical Applications of Massachusetts, Inc., NEW
 BEDFORD BILLING GROUP, 700 PLEASANT STREET, ,
NEW
 BEDFORD, MA, 2740



Bio-Medical Applications of Mayaguez, Inc.



Bio-Medical Applications of Mayaguez, Inc., PUERTO RICO
 BILLING GROUP, ANTILLAS WAREHOUSE & OFFICE
PARK,
 461 FRANCIA ST., SUITE 1-401, SAN JUAN, PR, 917



Bio-Medical Applications of Michigan, Inc.



Bio-Medical Applications of Michigan, Inc., MICHIGAN BILLING
 GROUP, 3500 MASSILLON ROAD SUITE
230, , UNIONTOWN,
 OH, 44685



Bio-Medical Applications of Minnesota, Inc.



Bio-Medical Applications of Minnesota, Inc., UPPER MIDWEST
 BILLING GROUP, 9120 SPRINGBROOK DRIVE,,
COON
 RAPIDS, MN, 55433



Bio-Medical Applications of Mission Hills, Inc.



Bio-Medical Applications of Mission Hills, Inc., SOUTHERN
 CALIFORNIA BILLING GROUP, 1337 EAST
THOUSAND OAKS
 BLVD, SUITE 216, THOUSAND OAKS, CA, 91362



Bio-Medical Applications of Mississippi, Inc.



Bio-Medical Applications of Mississippi, Inc., CRESCENT CITY
 BILLING GROUP, 3850 N. CAUSEWAY BLVD,
SUITE 700,
 METAIRIE, LA, 70002



Bio-Medical Applications of Missouri, Inc.



Bio-Medical Applications of Missouri, Inc., ARIZONA BILLING
 GROUP, 2917 S. DOBSON, SUITE 101,
MESA, AZ, 85202



Bio-Medical Applications of MLK, Inc.



Bio-Medical Applications of MLK, Inc., STEEL CITY BILLING
 GROUP, BMA PITTSBURGH, 190 BILMAR DR.,
SUITE 375,
 PITTSBURGH, PA, 15205



Bio-Medical Applications of Nevada, Inc.



Everest Healthcare Rhode Island, Inc.



Everest Healthcare Rhode Island, Inc., NEW BEDFORD
 BILLING GROUP, 700 PLEASANT STREET, , NEW
BEDFORD,
 MA, 2740



Everest Healthcare Texas, L.P.



Everest Healthcare Texas, L.P., WACO BILLING GROUP,
 UPTOWN PLAZA, 1110 RICHLAND DR., #3, WACO, TX,
76710



Fondren Dialysis Clinic, Inc.



Fondren Dialysis Clinic, Inc., TYLER BILLING, 3910 

BROOKSIDE DRIVE, SUITE 100, TYLER, TX,
75701



Fort Scott Regional Dialysis Center, Inc.



Fort Scott Regional Dialysis Center, Inc., TYLER BILLING, 3910
 BROOKSIDE DRIVE, SUITE 100, TYLER,
TX, 75701



Four State Regional Dialysis Center, Inc.



Four State Regional Dialysis Center, Inc., TYLER BILLING, 3910
 BROOKSIDE DRIVE, SUITE 100, TYLER,
TX, 75701



Fresenius Medical Care Dialysis Services - Oregon, LLC



Fresenius Medical Care Dialysis Services - Oregon, LLC,
 PACIFIC NW BILLING GROUP, 4560 S. COACH
DRIVE, SUITE
 100, TUCSON, AZ, 85714



Fresenius Medical Care Dialysis Services Colorado LLC



Fresenius Medical Care Dialysis Services Colorado LLC,
 ALBUQUERQUE BILLING GROUP, 909 VIRGINIA NE,
SUITE
 112, ALBUQUERQUE, NM, 87108



Gulf Region Mobile Dialysis, Inc.



Gulf Region Mobile Dialysis, Inc., SAN ANTONIO BILLING
 GROUP, 6100 BANDERA ROAD, SUITE 601, SAN
ANTONIO,
 TX, 78238



Haemo-Stat, Inc.



Haemo-Stat, Inc., SOUTHERN CALIFORNIA BILLING GROUP,
 1337 EAST THOUSAND OAKS BLVD, SUITE 216,
THOUSAND
 OAKS, CA, 91362



Henry Dialysis Center, LLC



Henry Dialysis Center, LLC, INDIANAPOLIS BILLING, 10585
 NORTH MERIDIAN STREET, SUITE 160,
INDIANAPOLIS, IN,
 46290


Renal Care Group Southwest, L.P., TYLER BILLING, 3910
 BROOKSIDE DRIVE, SUITE 100, TYLER, TX,
75701



Renal Care Group Texas, Inc.



Renal Care Group Texas, Inc., TYLER BILLING, 3910
 BROOKSIDE DRIVE, SUITE 100, TYLER, TX, 75701



Renal Care Group Westlake, LLC



Renal Care Group Westlake, LLC, CLEVELAND BILLING, 25050
 COUNTRY CLUB BOULEVARD, SUITE 250, NORTH
OLMSTED,
 OH, 44070



Renal Care Group, Inc.



Renal Care Group, Inc., TYLER BILLING, 3910 BROOKSIDE
 DRIVE, SUITE 100, TYLER, TX, 75701



Renex Dialysis Clinic of Bridgeton, Inc.



Renex Dialysis Clinic of Bridgeton, Inc., TYLER BILLING, 3910
 
BROOKSIDE DRIVE, SUITE 100, TYLER,
TX, 75701



Renex Dialysis Clinic of Creve Coeur, Inc.



Renex Dialysis Clinic of Creve Coeur, Inc., TYLER BILLING, 3910
 BROOKSIDE DRIVE, SUITE 100, TYLER,
TX, 75701



Renex Dialysis Clinic of Doylestown, Inc.



Renex Dialysis Clinic of Doylestown, Inc., CLEVELAND BILLING,
 25050 COUNTRY CLUB BOULEVARD, SUITE
250, NORTH
 OLMSTED, OH, 44070



Renex Dialysis Clinic of Maplewood, Inc.



Renex Dialysis Clinic of Maplewood, Inc., TYLER BILLING, 3910
 BROOKSIDE DRIVE, SUITE 100, TYLER,
TX, 75701



Renex Dialysis Clinic of Orange, Inc.



Renex Dialysis Clinic of Orange, Inc., CLEVELAND BILLING,
 25050 COUNTRY CLUB BOULEVARD, SUITE
250, NORTH
 OLMSTED, OH, 44070



Renex Dialysis Clinic of Penn Hills, Inc.



Renex Dialysis Clinic of Penn Hills, Inc., CLEVELAND BILLING,
 25050 COUNTRY CLUB BOULEVARD, SUITE
250, NORTH 
OLMSTED, OH, 44070



Renex Dialysis Clinic of Philadelphia, Inc.




 









 




Bio-Medical Applications of Nevada, Inc., MESA BILLING, 1750
 SOUTH MESA DRIVE, SUITE 110, MESA,
AZ, 85210



Bio-Medical Applications of New Hampshire, Inc.



Bio-Medical Applications of New Hampshire, Inc., NEW
 BEDFORD BILLING GROUP, 700 PLEASANT STREET, ,
NEW
 BEDFORD, MA, 2740



Bio-Medical Applications of New Jersey, Inc.



Bio-Medical Applications of New Jersey, Inc., ALLENTOWN
 BILLING GROUP, 861 MARCON BLVD SUITE 2, , 

ALLENTOWN, PA, 18109



Bio-Medical Applications of New Mexico, Inc.



Bio-Medical Applications of New Mexico, Inc., ALBUQUERQUE
 BILLING GROUP, 909 VIRGINIA NE, SUITE
112,
 ALBUQUERQUE, NM, 87108



Bio-Medical Applications of North Carolina, Inc.



Bio-Medical Applications of North Carolina, Inc., FAYETTEVILLE
 BILLING GROUP, 4200 MORGANTON ROAD,
SUITE 300,
 FAYETTEVILLE, NC, 28314



Bio-Medical Applications of Northeast D.C., Inc.


 Bio-Medical Applications of Northeast D.C., Inc.,
STEEL CITY
 BILLING GROUP, BMA PITTSBURGH, 190 BILMAR DR., SUITE
 375, PITTSBURGH, PA, 15205



Bio-Medical Applications of Oakland, Inc.



Bio-Medical Applications of Oakland, Inc., PACIFIC NW BILLING
 GROUP, 4560 S. COACH DRIVE, SUITE
100, TUCSON, AZ, 
85714



Bio-Medical Applications of Ohio, Inc.



Bio-Medical Applications of Ohio, Inc., KENTUCKY BILLING
 GROUP, 6100 DUTCHMANS LANE, 12TH FLOOR,

LOUISVILLE, KY, 40205



Bio-Medical Applications of Oklahoma, Inc.



Bio-Medical Applications of Oklahoma, Inc., LUBBOCK BILLING
 GROUP, 4747 SOUTH LOOP 289,, SUITE
120,, LUBBOCK, TX,
 79424



Bio-Medical Applications of Pennsylvania, Inc.



Bio-Medical Applications of Pennsylvania, Inc., ALLENTOWN
 BILLING GROUP, 861 MARCON BLVD. SUITE 2, ,

ALLENTOWN, PA, 18109

Bio-Medical Applications of Pennsylvania, Inc., ALLENTOWN
 BILLING GROUP, 861 MARCON BLVD. SUITE 2, ,

ALLENTOWN, PA, 18109, STEEL CITY BILLING GROUP, BMA
 PITTSBURGH, 190 BILMAR DR., SUITE 375,
PITTSBURGH, PA,
 15205



Holton Dialysis Clinic, LLC



Holton Dialysis Clinic, LLC, INDIANAPOLIS BILLING, 10585
 NORTH MERIDIAN STREET, SUITE 160,
INDIANAPOLIS, IN,
 46290



Home Dialysis of Muhlenburg County, Inc.



Home Dialysis of Muhlenburg County, Inc., KENTUCKY BILLING
 GROUP, 6100 DUTCHMANS LANE, 12TH FLOOR,

LOUISVILLE, KY, 40205



Jefferson County Dialysis, Inc.



Jefferson County Dialysis, Inc., TYLER BILLING, 3910
 BROOKSIDE DRIVE, SUITE 100, TYLER, TX,
75701



KDCO, Inc.



KDCO, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE
 100, TYLER, TX, 75701



Kentucky Renal Care Group, LLC



Kentucky Renal Care Group, LLC, INDIANAPOLIS BILLING,
 10585 NORTH MERIDIAN STREET, SUITE 160,

INDIANAPOLIS, IN, 46290



Lawton Dialysis, Inc.



Lawton Dialysis, Inc., TYLER BILLING, 3910 BROOKSIDE
 DRIVE, SUITE 100, TYLER, TX, 75701



Little Rock Dialysis, Inc.



Little Rock Dialysis, Inc., TYLER BILLING, 3910 BROOKSIDE
 DRIVE, SUITE 100, TYLER, TX, 75701



Maumee Dialysis Services, LLC



Maumee Dialysis Services, LLC, INDIANAPOLIS BILLING,
 10585 NORTH MERIDIAN STREET, SUITE 160,

INDIANAPOLIS, IN, 46290



Miami Regional Dialysis Center, Inc.



Miami Regional Dialysis Center, Inc., TYLER BILLING, 3910
 BROOKSIDE DRIVE, SUITE 100, TYLER, TX,
75701



Michigan Home Dialysis Center, Inc.



Michigan Home Dialysis Center, Inc., INDIANAPOLIS BILLING,
 10585 NORTH MERIDIAN STREET, SUITE 160,

INDIANAPOLIS, IN, 46290



Renex Dialysis Clinic of Philadelphia, Inc., CLEVELAND BILLING,
 25050 COUNTRY CLUB BOULEVARD, SUITE
250, NORTH
 OLMSTED, OH, 44070



Renex Dialysis Clinic of Pittsburgh, Inc.



Renex Dialysis Clinic of Pittsburgh, Inc., CLEVELAND BILLING,
 25050 COUNTRY CLUB BOULEVARD, SUITE
250, NORTH 
OLMSTED, OH, 44070



Renex Dialysis Clinic of Shaler, Inc.



Renex Dialysis Clinic of Shaler, Inc., CLEVELAND BILLING, 25050
 COUNTRY CLUB BOULEVARD, SUITE 250,
NORTH OLMSTED,
 OH, 44070



Renex Dialysis Clinic of South Georgia, Inc.



Renex Dialysis Clinic of South Georgia, Inc., INDIANAPOLIS
 BILLING, 10585 NORTH MERIDIAN STREET,
SUITE 160,
 INDIANAPOLIS, IN, 46290



Renex Dialysis Clinic of St. Louis, Inc.


Renex Dialysis Clinic of St. Louis, Inc., TYLER BILLING, 3910
 BROOKSIDE DRIVE, SUITE 100, TYLER,
TX, 75701



Renex Dialysis Clinic of Union, Inc.



Renex Dialysis Clinic of Union, Inc., TYLER BILLING, 3910
 BROOKSIDE DRIVE, SUITE 100, TYLER, TX,
75701



Renex Dialysis Clinic of University City, Inc.



Renex Dialysis Clinic of University City, Inc., TYLER BILLING, 3910
 BROOKSIDE DRIVE, SUITE 100,
TYLER, TX, 75701



Renex Dialysis Clinic of Woodbury, Inc.



Renex Dialysis Clinic of Woodbury, Inc., CLEVELAND BILLING,
 25050 COUNTRY CLUB BOULEVARD, SUITE
250, NORTH 
OLMSTED, OH, 44070



Renex Dialysis Facilities, Inc., TYLER BILLING, 3910 BROOKSIDE
 DRIVE, SUITE 100, TYLER, TX, 75701



Renex Dialysis Facilities, Inc., MESA BILLING, 1750 SOUTH 
MESA DRIVE, SUITE 110, MESA, AZ, 85210



San Diego Dialysis Services, Inc.



San Diego Dialysis Services, Inc., SAN DIEGO BILLING GROUP,
 2917 S. DOBSON, SUITE 101, MESA, AZ,
85202



Santa Barbara Community Dialysis Center, Inc.




 









 




Bio-Medical Applications of Ponce, Inc., PUERTO RICO BILLING
 GROUP, ANTILLAS WAREHOUSE & OFFICE
PARK, 461
 FRANCIA ST., SUITE 1-401, SAN JUAN, PR, 917



Bio-Medical Applications of Puerto Rico, Inc.



Bio-Medical Applications of Puerto Rico, Inc., PUERTO RICO
 BILLING GROUP, ANTILLAS WAREHOUSE &
OFFICE PARK,
 461 FRANCIA ST., SUITE 1-401, SAN JUAN, PR, 917



Bio-Medical Applications of Rio Piedras, Inc.



Bio-Medical Applications of Rio Piedras, Inc., PUERTO RICO
 BILLING GROUP, ANTILLAS WAREHOUSE &
OFFICE PARK,
 461 FRANCIA ST., SUITE 1-401, SAN JUAN, PR, 917



Bio-Medical Applications of San Antonio, Inc.


Bio-Medical Applications of San Antonio, Inc., SAN ANTONIO
 BILLING GROUP, 6100 BANDERA ROAD, SUITE
601, SAN
 ANTONIO, TX, 78238



Bio-Medical Applications of San German, Inc.



Bio-Medical Applications of San German, Inc., PUERTO RICO 
BILLING GROUP, ANTILLAS WAREHOUSE &
OFFICE PARK,
 461 FRANCIA ST., SUITE 1-401, SAN JUAN, PR, 917



Bio-Medical Applications of San Juan, Inc.



Bio-Medical Applications of San Juan, Inc., PUERTO RICO
 BILLING GROUP, ANTILLAS WAREHOUSE & OFFICE
PARK,
 461 FRANCIA ST., SUITE 1-401, SAN JUAN, PR, 917



Bio-Medical Applications of South Carolina, Inc.


Bio-Medical Applications of South Carolina, Inc., FAYETTEVILLE

BILLING GROUP, 4200 MORGANTON ROAD, SUITE 300,

FAYETTEVILLE, NC, 28314

Bio-Medical Applications of South Carolina, Inc., FLORENCE

BILLING GROUP, 218 N. DOZIER BLVD., , FLORENCE, SC,

29501

Bio-Medical Applications of South Carolina, Inc., MACON

BILLING GROUP, 1515 BASS ROAD, SUITE B, MACON, GA,

31210



Bio-Medical Applications of Tennessee, Inc.


Bio-Medical Applications of Tennessee, Inc., KNOXVILLE
 BILLING GROUP, BILLING GROUP, 1512 COLEMAN
ROAD,
 SUITE 308, KNOXVILLE, TN, 37919

Bio-Medical Applications of Tennessee, Inc., OCALA BILLING
 GROUP, BMA OCALA, INC., 1308 SE 25TH
LOOP, SUITE 102,
 OCALA, FL, 34471



National Medical Care, Inc.


National Medical Care, Inc., CHICAGO BILLING GROUP, ONE
 WESTBROOK DRIVE, TOWER 1, SUITE 1000,

WESTCHESTER, IL, 60154



National Medical Care, Inc., MICHIGAN BILLING GROUP, 3500
 MASSILLON ROAD, SUITE 230, UNIONTOWN, OH,
44685
 National Medical Care, Inc., KNOXVILLE BILLING GROUP,
 BILLING GROUP, 1512 COLEMAN ROAD, SUITE
308,
 KNOXVILLE, TN, 37919



National Medical Care, Inc., OCALA BILLING GROUP, BMA

OCALA, INC., 1308 SE 25TH LOOP, SUITE 102, OCALA, FL,

34471

National Medical Care, Inc., ORLANDO BILLING GROUP, BMA

ORLANDO, INC., 1155 W STATE ROAD 434, SUITE 125,

LONGWOOD, FL, 32750



National Medical Care, Inc., ALLENTOWN BILLING GROUP,
 861 MARCON BLVD SUITE 2, , ALLENTOWN, PA,
18109
 National Medical Care, Inc., TAMPA BILLING GROUP, BMA
 TAMPA INC., 5625 WEST WATERS AVENUE,
SUITE A,
 TAMPA, FL, 33634



National Nephrology Associates of Texas, L.P.



National Nephrology Associates of Texas, L.P., TYLER BILLING,
 3910 BROOKSIDE DRIVE, SUITE 100,
TYLER, TX, 75701



NNA of Alabama, Inc.



NNA of Alabama, Inc., INDIANAPOLIS BILLING, 10585 NORTH
 MERIDIAN STREET, SUITE 160, INDIANAPOLIS,
IN, 46290



NNA of East Orange, L.L.C.

NNA of East Orange, L.L.C., CLEVELAND BILLING, 25050
 COUNTRY CLUB BOULEVARD, SUITE 250, NORTH

OLMSTED, OH, 44070



NNA of Florida, LLC



NNA of Florida, LLC, INDIANAPOLIS BILLING, 10585 NORTH
 MERIDIAN STREET, SUITE 160, INDIANAPOLIS,
IN, 46290



NNA of Georgia, Inc.



NNA of Georgia, Inc., INDIANAPOLIS BILLING, 10585 NORTH
 MERIDIAN STREET, SUITE 160, INDIANAPOLIS,
IN, 46290

Santa Barbara Community Dialysis Center, Inc., SOUTHERN
 CALIFORNIA BILLING GROUP, 1337 EAST
THOUSAND OAKS
 BLVD, SUITE 216, THOUSAND OAKS, CA, 91362



Smyrna Dialysis Center, LLC



Smyrna Dialysis Center, LLC, INDIANAPOLIS BILLING, 10585
 NORTH MERIDIAN STREET, SUITE 160,
INDIANAPOLIS, IN, 
46290



SSKG, Inc.



SSKG, Inc., INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN
 STREET, SUITE 160, INDIANAPOLIS, IN, 46290



STAT Dialysis Corporation



STAT Dialysis Corporation, TYLER BILLING, 3910 BROOKSIDE
 DRIVE, SUITE 100, TYLER, TX, 75701



Stone Mountain Dialysis Center, LLC



Stone Mountain Dialysis Center, LLC, INDIANAPOLIS BILLING,
 10585 NORTH MERIDIAN STREET, SUITE 160,
INDIANAPOLIS,
 IN, 46290



Stuttgart Dialysis, LLC



Stuttgart Dialysis, LLC, TYLER BILLING, 3910 BROOKSIDE
 DRIVE, SUITE 100, TYLER, TX, 75701



Terrell Dialysis Center, LLC



Terrell Dialysis Center, LLC, WACO BILLING GROUP, UPTOWN
 PLAZA, 1110 RICHLAND DR., #3, WACO, TX,
76710



Three Rivers Dialysis Services, LLC

Three Rivers Dialysis Services, LLC, INDIANAPOLIS BILLING,
 10585 NORTH MERIDIAN STREET, SUITE 160,
INDIANAPOLIS,
 IN, 46290



West Palm Dialysis, LLC



West Palm Dialysis, LLC, INDIANAPOLIS BILLING, 10585 NORTH
 MERIDIAN STREET, SUITE 160,
INDIANAPOLIS, IN, 46290



Wharton Dialysis, Inc.




 









 





Bio-Medical Applications of Tennessee, Inc., ORLANDO BILLING
 GROUP, BMA ORLANDO, INC., 1155 W
STATE ROAD 434,
 SUITE 125, LONGWOOD, FL, 32750


NNA of Harrison, L.L.C.


NNA of Harrison, L.L.C., CLEVELAND BILLING, 25050
 COUNTRY CLUB BOULEVARD, SUITE 250, NORTH
 OLMSTED,
OH, 44070





Wharton Dialysis, Inc., TYLER BILLING, 3910 BROOKSIDE
 DRIVE, SUITE 100, TYLER, TX, 75701



WSKC Dialysis Services, Inc.

WSKC Dialysis Services, Inc., CHICAGO BILLING GROUP, ONE
 WESTBROOK DRIVE, TOWER 1, SUITE 1000,
WESTCHESTER,
 IL, 60154



RTG





Fresenius USA, Inc

2637 Shadelands Drive

Walnut Creek, CA 94590




920 Winter Street

Waltham, MA 02451




Fresenius USA Home Dialysis, Inc

920 Winter Street

Waltham, MA 02451




Fresenius USA Marketing, Inc

920 Winter Street

Waltham, MA 02451




Fresenius USA of Puerto Rico, Inc

PO Box 191690

San Juan, PR 00919




Life Assist Medical Products, Inc

PO Box 191690

San Juan, PR 00919





Spectra East

8 King Road

Rockleigh, NJ 07647




920 Winter Street

Waltham, MA 02451




Spectra Renal Research, LLC

920 Winter Street

Waltham, MA 02451




Fresenius USA Manufacturing

920 Winter Street

Waltham, MA 02451




Fresenius Medical Care Canada

45 Staples Suite 110

Richmond Hill, ON

L4B 4W6




Distriduter D’Equipment Medicaux Haemotec, Inc

383 Joseph Carrier

Vaudreil-Dorion, QC

J7V 5V5








Erika de Reynosa S.A. de C.V.

Brecha E-99 Sur Parque Ind. Reynosa

Apartado Postal # 326

Reynosa, Tamps.

Mexico, CP 88780




Pharr Warehouse

1100 E. Military Hwy. Ste. C

Pharr, TX 78577




Renal Solutions, Inc — Fresenius Medical Care Holdings, Inc (legal entity)

770 Commonwealth Drive

Suite 101

Warrendale, PA 15086




Sorb Technologies (manufacturing site)

3631 SW 54th Street

Oklahoma City, OK 73119





 











 




     


Location of Records — Exhibit I — Fresenius Medical Services



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2008 Transferring Affiliates	 	FMS Billing Group	 	Billing Group Address	 	Billing Group Address 2	 	Billing Group City	 	Billing Group State	 	Billing Group Zip
	Bio-Medical Applications of Aguadilla, Inc.
	 	PUERTO RICO BILLING GROUP	 	ANTILLAS WAREHOUSE & OFFICE PARK	 	461 FRANCIA ST., SUITE 1-401	 	SAN JUAN	 	PR	 	 	00917	 
	Bio-Medical Applications of Aguadilla, Inc., PUERTO RICO BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ANTILLAS WAREHOUSE & OFFICE PARK, 461 FRANCIA ST., SUITE 1-401,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SAN JUAN, PR, 917
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Alabama, Inc.
	 	MOBILE BILLING GROUP	 	6420 HILLCREST PARK CT	 	SUITE 210	 	MOBILE	 	AL	 	 	36608	 
	Bio-Medical Applications of Alabama, Inc., MOBILE BILLING GROUP, 6420
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	HILLCREST PARK CT, SUITE 210, MOBILE, AL, 36608
	 	KNOXVILLE BILLING GROUP	 	 	 	1512 COLEMAN ROAD, SUITE 308	 	KNOXVILLE	 	TN	 	 	37919	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Anacostia, Inc.
	 	STEEL CITY BILLING GROUP	 	BMA PITTSBURGH	 	190 BILMAR DR., SUITE 375	 	PITTSBURGH	 	PA	 	 	15205	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Anacostia, Inc., STEEL CITY BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BMA PITTSBURGH, 190 BILMAR DR., SUITE 375, PITTSBURGH, PA, 15205
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Arecibo, Inc.
	 	PUERTO RICO BILLING GROUP	 	ANTILLAS WAREHOUSE & OFFICE PARK	 	461 FRANCIA ST., SUITE 1-401	 	SAN JUAN	 	PR	 	 	00917	 
	Bio-Medical Applications of Arecibo, Inc., PUERTO RICO BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ANTILLAS WAREHOUSE & OFFICE PARK, 461 FRANCIA ST., SUITE 1-401,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SAN JUAN, PR, 917
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Arkansas, Inc.
	 	MOBILE BILLING GROUP	 	6420 HILLCREST PARK CT	 	SUITE 210	 	MOBILE	 	AL	 	 	36608	 
	Bio-Medical Applications of Arkansas, Inc., MOBILE BILLING GROUP, 6420
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	HILLCREST PARK CT, SUITE 210, MOBILE, AL, 36608
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Bayamon, Inc.
	 	PUERTO RICO BILLING GROUP	 	ANTILLAS WAREHOUSE & OFFICE PARK	 	461 FRANCIA ST., SUITE 1-401	 	SAN JUAN	 	PR	 	 	00917	 
	Bio-Medical Applications of Aguadilla, Inc., PUERTO RICO BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ANTILLAS WAREHOUSE & OFFICE PARK, 461 FRANCIA ST., SUITE 1-401,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SAN JUAN, PR, 917
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Blue Springs, Inc.
	 	ARIZONA BILLING GROUP	 	2917 S. DOBSON	 	SUITE 101	 	MESA	 	AZ	 	 	85202	 
	Bio-Medical Applications of Aguadilla, Inc., PUERTO RICO BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ANTILLAS WAREHOUSE & OFFICE PARK, 461 FRANCIA ST., SUITE 1-401,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SAN JUAN, PR, 917
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Caguas, Inc.
	 	PUERTO RICO BILLING GROUP	 	ANTILLAS WAREHOUSE & OFFICE PARK	 	461 FRANCIA ST., SUITE 1-401	 	SAN JUAN	 	PR	 	 	00917	 
	Bio-Medical Applications of Caguas, Inc., PUERTO RICO BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ANTILLAS WAREHOUSE & OFFICE PARK, 461 FRANCIA ST., SUITE 1-401,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SAN JUAN, PR, 917
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of California, Inc.
	 	PACIFIC NW BILLING GROUP	 	4560 S. COACH DRIVE	 	SUITE 100	 	TUCSON	 	AZ	 	 	85714	 
	Bio-Medical Applications of California, Inc., PACIFIC NW BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	4560 S. COACH DRIVE, SUITE 100, TUCSON, AZ, 85714
	 	SOUTHERN CALIFORNIA BILLING GROUP	 	1337 EAST THOUSAND OAKS BLVD	 	SUITE 216	 	THOUSAND OAKS	 	CA	 	 	91362	 
	Bio-Medical Applications of California, Inc., PACIFIC NW BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	4560 S. COACH DRIVE, SUITE 100, TUCSON, AZ, 85714, SOUTHERN
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	CALIFORNIA BILLING GROUP, 1337 EAST THOUSAND OAKS BLVD, SUITE
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	216, THOUSAND OAKS, CA, 91362
	 	SAN DIEGO BILLING GROUP	 	2917 S. DOBSON	 	SUITE 101	 	MESA	 	AZ	 	 	85202	 
	Bio-Medical Applications of California, Inc., PACIFIC NW BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	4560 S. COACH DRIVE, SUITE 100, TUCSON, AZ, 85714, SOUTHERN
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	CALIFORNIA BILLING GROUP, 1337 EAST THOUSAND OAKS BLVD, SUITE
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	216, THOUSAND OAKS, CA, 91362, SAN DIEGO BILLING GROUP, 2917 S.
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DOBSON, SUITE 101, MESA, AZ, 85202
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Camarillo, Inc.
	 	SOUTHERN CALIFORNIA BILLING GROUP	 	1337 EAST THOUSAND OAKS BLVD	 	SUITE 216	 	THOUSAND OAKS	 	CA	 	 	91362	 
	Bio-Medical Applications of Camarillo, Inc., SOUTHERN CALIFORNIA BILLING
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GROUP, 1337 EAST THOUSAND OAKS BLVD, SUITE 216, THOUSAND
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	OAKS, CA, 91362
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Capitol Hill, Inc.
	 	STEEL CITY BILLING GROUP	 	BMA PITTSBURGH	 	190 BILMAR DR., SUITE 375	 	PITTSBURGH	 	PA	 	 	15205	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Capitol Hill, Inc., STEEL CITY BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BMA PITTSBURGH, 190 BILMAR DR., SUITE 375, PITTSBURGH, PA, 15205
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Carolina, Inc.
	 	PUERTO RICO BILLING GROUP	 	ANTILLAS WAREHOUSE & OFFICE PARK	 	461 FRANCIA ST., SUITE 1-401	 	SAN JUAN	 	PR	 	 	00917	 
	Bio-Medical Applications of Carolina, Inc., PUERTO RICO BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ANTILLAS WAREHOUSE & OFFICE PARK, 461 FRANCIA ST., SUITE 1-401,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SAN JUAN, PR, 917
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Carson, Inc.
	 	SOUTHERN CALIFORNIA BILLING GROUP	 	1337 EAST THOUSAND OAKS BLVD	 	SUITE 216	 	THOUSAND OAKS	 	CA	 	 	91362	 
	Bio-Medical Applications of Carson, Inc., SOUTHERN CALIFORNIA BILLING
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GROUP, 1337 EAST THOUSAND OAKS BLVD, SUITE 216, THOUSAND
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	OAKS, CA, 91362
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Clinton, Inc.
	 	FAYETTEVILLE BILLING GROUP	 	4200 MORGANTON ROAD	 	SUITE 300	 	FAYETTEVILLE	 	NC	 	 	28314	 
	Bio-Medical Applications of Clinton, Inc., FAYETTEVILLE BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	4200 MORGANTON ROAD, SUITE 300, FAYETTEVILLE, NC, 28314
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Columbia Heights, Inc.
	 	STEEL CITY BILLING GROUP	 	BMA PITTSBURGH	 	190 BILMAR DR., SUITE 375	 	PITTSBURGH	 	PA	 	 	15205	 
	Bio-Medical Applications of Columbia Heights, Inc., STEEL CITY BILLING
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GROUP, BMA PITTSBURGH, 190 BILMAR DR., SUITE 375, PITTSBURGH,	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	PA, 15205
	 	 	 	 	 	 	 	 	 	 	 	 	 	 




 







 




     


	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2008 Transferring Affiliates	 	FMS Billing Group	 	Billing Group Address	 	Billing Group Address 2	 	Billing Group City	 	Billing Group State	 	Billing Group Zip
	Bio-Medical Applications of Connecticut, Inc.
	 	NEW BEDFORD BILLING GROUP	 	700 PLEASANT STREET	 	 	 	NEW BEDFORD	 	MA	 	 	02740	 
	Bio-Medical Applications of Connecticut, Inc., NEW BEDFORD BILLING
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GROUP, 700 PLEASANT STREET, NEW BEDFORD, MA, 2740
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Delaware, Inc.
	 	ALLENTOWN BILLING GROUP	 	861 MARCON BLVD SUITE 2	 	 	 	ALLENTOWN	 	PA	 	 	18109	 
	Bio-Medical Applications of Delaware, Inc., ALLENTOWN BILLING GROUP, 861
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MARCON BLVD SUITE 2,, ALLENTOWN, PA, 18109
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Dover, Inc.
	 	NEW BEDFORD BILLING GROUP	 	700 PLEASANT STREET	 	 	 	NEW BEDFORD	 	MA	 	 	02740	 
	Bio-Medical Applications of Dover, Inc., NEW BEDFORD BILLING GROUP, 700
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	PLEASANT STREET,, NEW BEDFORD, MA, 2740
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Eureka, Inc.
	 	PACIFIC NW BILLING GROUP	 	4560 S. COACH DRIVE	 	SUITE 100	 	TUCSON	 	AZ	 	 	85714	 
	Bio-Medical Applications of Eureka, Inc., PACIFIC NW BILLING GROUP, 4560
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	S. COACH DRIVE, SUITE 100, TUCSON, AZ, 85714
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Fayetteville, Inc.
	 	FAYETTEVILLE BILLING GROUP	 	4200 MORGANTON ROAD	 	SUITE 300	 	FAYETTEVILLE	 	NC	 	 	28314	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Fayetteville, Inc., FAYETTEVILLE BILLING
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GROUP, 4200 MORGANTON ROAD, SUITE 300, FAYETTEVILLE, NC, 28314
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Florida, Inc.
	 	ORLANDO BILLING GROUP	 	BMA ORLANDO, INC.	 	1155 W STATE ROAD 434, SUITE 125	 	LONGWOOD	 	FL	 	 	32750	 
	Bio-Medical Applications of Florida, Inc., ORLANDO BILLING GROUP, BMA
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ORLANDO, INC., 1155 W STATE ROAD 434, SUITE 125, LONGWOOD, FL,
32750
	 	OCALA BILLING GROUP	 	BMA OCALA, INC.	 	1308 SE 25TH LOOP, SUITE 102	 	OCALA	 	FL	 	 	34471	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	TAMPA BILLING GROUP	 	BMA TAMPA INC.	 	5625 WEST WATERS AVENUE, SUITE	 	TAMPA	 	FL	 	 	33634	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TAMPA BILLING GROUP, BMA TAMPA INC., 5625 WEST WATERS
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	AVENUE, SUITE A, TAMPA, FL, 33634
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Fremont, Inc.
	 	PACIFIC NW BILLING GROUP	 	4560 S. COACH DRIVE	 	SUITE 100	 	TUCSON	 	AZ	 	 	85714	 
	Bio-Medical Applications of Fremont, Inc., PACIFIC NW BILLING GROUP, 4560
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	S. COACH DRIVE, SUITE 100, TUCSON, AZ, 85714
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Fresno, Inc.
	 	PACIFIC NW BILLING GROUP	 	4560 S. COACH DRIVE	 	SUITE 100	 	TUCSON	 	AZ	 	 	85714	 
	Bio-Medical Applications of Fresno, Inc., PACIFIC NW BILLING GROUP, 4560
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	S. COACH DRIVE, SUITE 100, TUCSON, AZ, 85714
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Georgia, Inc.
	 	KNOXVILLE BILLING GROUP	 	BILLING GROUP	 	1512 COLEMAN ROAD, SUITE 308	 	KNOXVILLE	 	TN	 	 	37919	 
	 
	 	MACON BILLING GROUP	 	1515 BASS ROAD	 	SUITE B	 	MACON	 	GA	 	 	31210	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Glendora, Inc.	 	SOUTHERN CALIFORNIA BILLING GROUP	 	1337 EAST THOUSAND OAKS BLVD	 	SUITE 216	 	THOUSAND OAKS	 	CA	 	 	91362	 
	Bio-Medical Applications of Glendora, Inc., SOUTHERN CALIFORNIA BILLING
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GROUP, 1337 EAST THOUSAND OAKS BLVD, SUITE 216, THOUSAND
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	OAKS, CA, 91362
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Guayama, Inc.
	 	PUERTO RICO BILLING GROUP	 	ANTILLAS WAREHOUSE & OFFICE PARK	 	461 FRANCIA ST., SUITE 1-401	 	SAN JUAN	 	PR	 	 	00917	 
	Bio-Medical Applications of Guayama, Inc., PUERTO RICO BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ANTILLAS WAREHOUSE & OFFICE PARK, 461 FRANCIA ST., SUITE 1-401,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SAN JUAN, PR, 917
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Humacao, Inc.
	 	PUERTO RICO BILLING GROUP	 	ANTILLAS WAREHOUSE & OFFICE PARK	 	461 FRANCIA ST., SUITE 1-401	 	SAN JUAN	 	PR	 	 	00917	 
	Bio-Medical Applications of Humacao, Inc., PUERTO RICO BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ANTILLAS WAREHOUSE & OFFICE PARK, 461 FRANCIA ST., SUITE 1-401,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SAN JUAN, PR, 917
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Illinois, Inc.
	 	CHICAGO BILLING GROUP	 	ONE WESTBROOK DRIVE	 	TOWER 1, SUITE 1000	 	WESTCHESTER	 	IL	 	 	60154	 
	Bio-Medical Applications of Illinois, Inc., CHICAGO BILLING GROUP, ONE
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	WESTBROOK DRIVE, TOWER 1, SUITE 1000, WESTCHESTER, IL, 60154
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Indiana, Inc.
	 	MICHIGAN BILLING GROUP	 	3500 MASSILLON ROAD	 	SUITE 230	 	UNIONTOWN	 	OH	 	 	44685	 
	Bio-Medical Applications of Indiana, Inc., MICHIGAN BILLING GROUP, 3500
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MASSILLON ROAD, SUITE 230, UNIONTOWN, OH, 44685
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Maine, Inc.
	 	NEW BEDFORD BILLING GROUP	 	700 PLEASANT STREET	 	 	 	NEW BEDFORD	 	MA	 	 	02740	 
	Bio-Medical Applications of Maine, Inc., NEW BEDFORD BILLING GROUP, 700
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	PLEASANT STREET, , NEW BEDFORD, MA, 2740
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Manchester, Inc.
	 	NEW BEDFORD BILLING GROUP	 	700 PLEASANT STREET	 	 	 	NEW BEDFORD	 	MA	 	 	02740	 
	Bio-Medical Applications of Manchester, Inc., NEW BEDFORD BILLING
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GROUP, 700 PLEASANT STREET, , NEW BEDFORD, MA, 2740
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Maryland, Inc.
	 	STEEL CITY BILLING GROUP	 	BMA PITTSBURGH	 	190 BILMAR DR., SUITE 375	 	PITTSBURGH	 	PA	 	 	15205	 
	 
	Bio-Medical Applications of Maryland, Inc., STEEL CITY BILLING GROUP, BMA
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	PITTSBURGH, 190 BILMAR DR., SUITE 375, PITTSBURGH, PA, 15205
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Massachusetts, Inc.
	 	NEW BEDFORD BILLING GROUP	 	700 PLEASANT STREET	 	 	 	NEW BEDFORD	 	MA	 	 	02740	 
	Bio-Medical Applications of Massachusetts, Inc., NEW BEDFORD BILLING
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GROUP, 700 PLEASANT STREET., NEW BEDFORD, MA, 2740
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Mayaguez, Inc.
	 	PUERTO RICO BILLING GROUP	 	ANTILLAS WAREHOUSE & OFFICE PARK	 	461 FRANCIA ST., SUITE 1-401	 	SAN JUAN	 	PR	 	 	00917	 




 







 




     


	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2008 Transferring Affiliates	 	FMS Billing Group	 	Billing Group Address	 	Billing Group Address 2	 	Billing Group City	 	Billing Group State	 	Billing Group Zip
	Bio-Medical Applications of Mayaguez, Inc., PUERTO RICO BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ANTILLAS WAREHOUSE 4 OFFICE PARK, 461 FRANCIA ST., SUITE 1-401,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SAN JUAN, PR, 917
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Michigan, Inc.
	 	MICHIGAN BILLING GROUP	 	3500 MASSILLON ROAD SUITE 230	 	 	 	UNIONTOWN	 	OH	 	 	44685	 
	Bio-Medical Applications of Michigan, Inc., MICHIGAN BILLING GROUP, 3500
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MASSILLON ROAD SUITE 230, , UNIONTOWN, OH, 44685
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Minnesota, Inc.
	 	UPPER MIDWEST BILLING GROUP	 	9120 SPRINGBROOK DRIVE	 	 	 	COON RAPIDS	 	MN	 	 	55433	 
	Bio-Medical Applications of Minnesota, Inc., UPPER MIDWEST BILLING
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GROUP, 9120 SPRINGBROOK DRIVE, , COON RAPIDS, MN, 55433
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Mission Hills, Inc.
	 	SOUTHERN CALIFORNIA BILLING GROUP	 	1337 EAST THOUSAND OAKS BLVD	 	SUITE 216	 	THOUSAND OAKS	 	CA	 	 	91362	 
	Bio-Medical Applications of Mission Hills, Inc., SOUTHERN CALIFORNIA
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BILLING GROUP, 1337 EAST THOUSAND OAKS BLVD, SUITE 216,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	THOUSAND OAKS, CA, 91362
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Mississippi, Inc.
	 	CRESCENT CITY BILLING GROUP	 	3850 N. CAUSEWAY BLVD	 	SUITE 700	 	METAIRIE	 	LA	 	 	70002	 
	Bio-Medical Applications of Mississippi, Inc., CRESCENT CITY BILLING
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GROUP, 3850 N. CAUSEWAY BLVD, SUITE 700, METAIRIE, LA, 70002
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Missouri, Inc.
	 	ARIZONA BILLING GROUP	 	2917 S. DOBSON	 	SUITE 101	 	MESA	 	AZ	 	 	85202	 
	Bio-Medical Applications of Missouri, Inc., ARIZONA BILLING GROUP, 2917 S,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DOBSON, SUITE 101, MESA, AZ, 65202
	 	SAN ANTONIO BILLING GROUP	 	6100 BANDERA ROAD	 	SUITE 601	 	SAN ANTONIO	 	TX	 	 	78238	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of MLK, Inc.
	 	STEEL CITY BILLING GROUP	 	BMA PITTSBURGH	 	190 BILMAR DR., SUITE 375	 	PITTSBURGH	 	PA	 	 	15205	 
	Bio-Medical Applications of MLK, Inc., STEEL CITY BILLING GROUP, BMA
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	PITTSBURGH, 190 BILMAR DR., SUITE 375, PITTSBURGH, PA, 15205
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Nevada, Inc.
	 	MESA BILLING	 	1750 SOUTH MESA DRIVE	 	SUITE 110	 	MESA	 	AZ	 	 	85210	 
	Bio-Medical Applications of Nevada, Inc., MESA BILLING, 1750 SOUTH MESA
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DRIVE, SUITE 110, MESA, AZ, 85210
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of New Hampshire, Inc.
	 	NEW BEDFORD BILLING GROUP	 	700 PLEASANT STREET	 	 	 	NEW BEDFORD	 	MA	 	 	02740	 
	Bio-Medical Applications of New Hampshire, Inc., NEW BEDFORD BILLING
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GROUP, 700 PLEASANT STREET, , NEW BEDFORD, MA, 2740
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of New Jersey, Inc.
	 	ALLENTOWN BILLING GROUP	 	861 MARCON BLVD SUITE 2	 	 	 	ALLENTOWN	 	PA	 	 	18109	 
	Bio-Medical Applications of New Jersey, Inc., ALLENTOWN BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	861 MARCON BLVD SUITE 2, , ALLENTOWN, PA, 18109
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of New Mexico, Inc.
	 	ALBUQUERQUE BILLING GROUP	 	909 VIRGINIA NE	 	SUITE 112	 	ALBUQUERQUE	 	NM	 	 	87108	 
	Bio-Medical Applications of New Mexico, Inc., ALBUQUERQUE BILLING
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GROUP, 909 VIRGINIA NE, SUITE 112, ALBUQUERQUE, NM, 87108
	 	LUBBOCK BILLING GROUP	 	4747 SOUTH LOOP 289,	 	SUITE 120.	 	LUBBOCK	 	TX	 	 	79424	 
	 
	Bio-Medical Applications of North Carolina, Inc.
	 	FAYETTEVILLE BILLING GROUP	 	4200 MORGANTON ROAD	 	SUITE 300	 	FAYETTEVILLE	 	NC	 	 	28314	 
	 
	Bio-Medical Applications of North Carolina, Inc., FAYETTEVILLE BILLING
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GROUP, 4200 MORGANTON ROAD, SUITE 300, FAYETTEVILLE, NC, 28314
	 	FLORENCE BILLING GROUP	 	216 N. DOZIER BLVD.	 	 	 	FLORENCE	 	SC	 	 	29501	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Northeast D.C., Inc.
	 	STEEL CITY BILLING GROUP	 	BMA PITTSBURGH	 	190 BILMAR DR., SUITE 375	 	PITTSBURGH	 	PA	 	 	15205	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Northeast D.C., Inc., STEEL CITY BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BMA PITTSBURGH, 190 BILMAR DR., SUITE 375, PITTSBURGH, PA, 15205
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Oakland, Inc.
	 	PACIFIC NW BILLING GROUP	 	4560 S. COACH DRIVE	 	SUITE 100	 	TUCSON	 	AZ	 	 	85714	 
	Bio-Medical Applications of Oakland, Inc., PACIFIC NW BILLING GROUP, 4560
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	S. COACH DRIVE, SUITE 100, TUCSON, AZ, 85714
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Ohio, Inc.
	 	KENTUCKY BILLING GROUP	 	6100 DUTCHMANS LANE	 	12TH FLOOR	 	LOUISVILLE	 	KY	 	 	40205	 
	Bio-Medical Applications of Ohio, Inc., KENTUCKY BILLING GROUP, 6100
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DUTCHMANS LANE, 12TH FLOOR, LOUISVILLE, KY, 40205
	 	NORTHERN OHIO BILLING GROUP	 	3500 MASSILLON ROAD	 	SUITE 280	 	UNIONTOWN	 	OH	 	 	44685	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Oklahoma, Inc.
	 	LUBBOCK BILLING GROUP	 	4747 SOUTH LOOP 289,	 	SUITE 120,	 	LUBBOCK	 	TX	 	 	79424	 
	Bio-Medical Applications of Oklahoma, Inc., LUBBOCK BILLING GROUP, 4747
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SOUTH LOOP 289., SUITE 120., LUBBOCK, TX, 79424
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Pennsylvania, Inc.
	 	ALLENTOWN BILLING GROUP	 	861 MARCON BLVD. SUITE 2	 	 	 	ALLENTOWN	 	PA	 	 	18109	 
	Bio-Medical Applications of Pennsylvania, Inc., ALLENTOWN BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	861 MARCON BLVD, SUITE 2, , ALLENTOWN, PA, 18109
	 	STEEL CITY BILLING GROUP	 	BMA PITTSBURGH	 	190 BILMAR DR., SUITE 375	 	PITTSBURGH	 	PA	 	 	15205	 
	Bio-Medical Applications of Pennsylvania, Inc., ALLENTOWN BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	861 MARCON BLVD, SUITE 2, , ALLENTOWN, PA, 18109, STEEL CITY
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BILLING GROUP, BMA PITTSBURGH, 190 BILMAR DR., SUITE 375,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	PITTSBURGH, PA, 15205
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Ponce, Inc.
	 	PUERTO RICO BILLING GROUP	 	ANTILLAS WAREHOUSE & OFFICE PARK	 	461 FRANCIA ST., SUITE 1-401	 	SAN JUAN	 	PR	 	 	00917	 
	Bio-Medical Applications of Ponce, Inc., PUERTO RICO BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ANTILLAS WAREHOUSE & OFFICE PARK, 461 FRANCIA ST., SUITE 1-401,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SAN JUAN, PR, 917
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Puerto Rica, Inc.
	 	PUERTO RICO BILLING GROUP	 	ANTILLAS WAREHOUSE & OFFICE PARK	 	461 FRANCIA ST., SUITE 1-401	 	SAN JUAN	 	PR	 	 	00917	 




 







 




     


	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2008 Transferring Affiliates	 	FMS Billing Group	 	Billing Group Address	 	Billing Group Address 2	 	Billing Group City	 	Billing Group State	 	Billing Group Zip
	Bio-Medical Applications of Puerto Rico, Inc., PUERTO RICO BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ANTILLAS WAREHOUSE 4 OFFICE PARK, 461 FRANCIA ST., SUITE 1-401,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SAN JUAN, PR, 917
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Rio Piedras, Inc.
	 	PUERTO RICO BILLING GROUP	 	ANTILLAS WAREHOUSE & OFFICE PARK	 	461 FRANCIA ST., SUITE 1-401	 	SAN JUAN	 	PR	 	 	00917	 
	Bio-Medical Applications of Rio Piedras, Inc., PUERTO RICO BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ANTILLAS WAREHOUSE & OFFICE PARK, 461 FRANCIA ST., SUITE 1-401,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SAN JUAN, PR, 917
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of San Antonio, Inc.
	 	SAN ANTONIO BILLING GROUP	 	6100 BANDERA ROAD	 	SUITE 601	 	SAN ANTONIO	 	TX	 	 	78238	 
	Bio-Medical Applications of San Antonio, Inc., SAN ANTONIO BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	6100 BANDERA ROAD, SUITE 601, SAN ANTONIO, TX, 78236
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of San German, Inc.
	 	PUERTO RICO BILLING GROUP	 	ANTILLAS WAREHOUSE & OFFICE PARK	 	461 FRANCIA ST., SUITE 1-401	 	SAN JUAN	 	PR	 	 	00917	 
	Bio-Medical Applications of San German, Inc., PUERTO RICO BILLING
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GROUP, ANTILLAS WAREHOUSE & OFFICE PARK, 461 FRANCIA ST., SUITE
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	1-401, SAN JUAN, PR, 917
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of San Juan, Inc.
	 	PUERTO RICO BILLING GROUP	 	ANTILLAS WAREHOUSE & OFFICE PARK	 	461 FRANCIA ST., SUITE 1-401	 	SAN JUAN	 	PR	 	 	00917	 
	Bio-Medical Applications of San Juan, Inc., PUERTO RICO BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ANTILLAS WAREHOUSE & OFFICE PARK, 461 FRANCIA ST., SUITE 1-401,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SAN JUAN, PR, 917
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of South Carolina, Inc.
	 	FAYETTEVILLE BILLING GROUP	 	4200 MORGANTON ROAD	 	SUITE 300	 	FAYETTEVILLE	 	NC	 	 	28314	 
	Bio-Medical Applications of South Carolina, Inc., FAYETTEVILLE BILLING
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GROUP, 4200 MORGANTON ROAD, SUITE 300, FAYETTEVILLE, NC, 28314
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of South Carolina, Inc.
	 	FLORENCE BILLING GROUP	 	218 N. DOZIER BLVD.	 	 	 	FLORENCE	 	SC	 	 	29501	 
	Bio-Medical Applications of South Carolina, Inc., FLORENCE BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	218 N. DOZIER BLVD., , FLORENCE, SC, 29501
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of South Carolina, Inc.
	 	MACON BILLING GROUP	 	1515 BASS ROAD	 	SUITE B	 	MACON	 	GA	 	 	31210	 
	Bio-Medical Applications of South Carolina, Inc., MACON BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	1515 BASS ROAD, SUITE B, MACON, GA, 31210
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Southeast Washington, Inc.
	 	STEEL CITY BILLING GROUP	 	BMA PITTSBURGH	 	190 BILMAR DR., SUITE 375	 	PITTSBURGH	 	PA	 	 	15205	 
	Bio-Medical Applications of Southeast Washington, Inc., STEEL CITY BILLING
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GROUP, BMA PITTSBURGH, 190 BILMAR DR., SUITE 375, PITTSBURGH,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	PA, 15205
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Tennessee, Inc.
	 	KNOXVILLE BILLING GROUP	 	BILLING GROUP	 	1512 COLEMAN ROAD, SUITE 308	 	KNOXVILLE	 	TN	 	 	37919	 
	Bio-Medical Applications of Tennessee, Inc., KNOXVILLE BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BILLING GROUP, 1512 COLEMAN ROAD, SUITE 308, KNOXVILLE, TN, 37919
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Tennessee, Inc.
	 	OCALA BILLING GROUP	 	BMA OCALA, INC.	 	1308 SE 25TH LOOP, SUITE 102	 	OCALA	 	FL	 	 	34471	 
	Bio-Medical Applications of Tennessee, Inc., OCALA BILLING GROUP, BMA
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	OCALA, INC., 1308 SE 25TH LOOP, SUITE 102, OCALA, FL, 34471
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Tennessee, Inc.
	 	ORLANDO BILLING GROUP	 	BMA ORLANDO, INC.	 	1155 W STATE ROAD 434, SUITE 125	 	LONGWOOD	 	FL	 	 	32750	 
	Bio-Medical Applications of Tennessee, Inc., ORLANDO BILLING GROUP, BMA
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ORLANDO, INC., 1155 W STATE ROAD 434, SUITE 125, LONGWOOD, FL,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	32750
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Texas, Inc.
	 	ALBUQUERQUE BILLING GROUP	 	909 VIRGINIA NE	 	SUITE 112	 	ALBUQUERQUE	 	NM	 	 	87108	 
	Bio-Medical Applications of Texas, Inc., ALBUQUERQUE BILLING GROUP, 909
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	VIRGINIA NE, SUITE 112, ALBUQUERQUE, NM, 87108
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Texas, Inc.
	 	LUBBOCK BILLING GROUP	 	4747 SOUTH LOOP 289,	 	SUITE 120,	 	LUBBOCK	 	TX	 	 	79424	 
	Bio-Medical Applications of Texas, Inc., LUBBOCK BILLING GROUP, 4747
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SOUTH LOOP 289., SUITE 120., LUBBOCK, TX, 79424
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Texas, Inc.
	 	NORTH TEXAS BILLING GROUP	 	1485 RICHARDSON DRIVE #100	 	 	 	RICHARDSON	 	TX	 	 	75080	 
	Bio-Medical Applications of Texas, Inc., NORTH TEXAS BILLING GROUP, 1485
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	RICHARDSON DRIVE #100., RICHARDSON, TX, 75080
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Texas, Inc.
	 	SAN ANTONIO BILLING GROUP	 	6100 BANDERA ROAD	 	SUITE 601	 	SAN ANTONIO	 	TX	 	 	78238	 
	Bio-Medical Applications of Texas, Inc., SAN ANTONIO BILLING GROUP, 6100
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BANDERA ROAD, SUITE 601, SAN ANTONIO, TX, 78238
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Texas, Inc.
	 	TYLER BILLING	 	3910 BROOKSIDE DRIVE	 	SUITE 100	 	TYLER	 	TX	 	 	75701	 
	Bio-Medical Applications of Texas, Inc., TYLER BILLING, 3910 BROOKSIDE
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DRIVE, SUITE 100, TYLER, TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Texas, Inc.
	 	WACO BILLING GROUP	 	UPTOWN PLAZA	 	1110 RICHLAND DR., #3	 	WACO	 	TX	 	 	76710	 
	Bio-Medical Applications of Texas, Inc., WACO BILLING GROUP, UPTOWN
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	PLAZA, 1110 RICHLAND DR., #3, WACO, TX, 76710
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of the District of Columbia, Inc.
	 	STEEL CITY BILLING GROUP	 	BMA PITTSBURGH	 	190 BILMAR DR., SUITE 375	 	PITTSBURGH	 	PA	 	 	15205	 
	Bio-Medical Applications of the District of Columbia, Inc., STEEL CITY BILLING
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GROUP, BMA PITTSBURGH, 190 BILMAR DR., SUITE 375, PITTSBURGH,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	PA, 15205
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Ukiah, Inc.
	 	PACIFIC NW BILLING GROUP	 	4560 S. COACH DRIVE	 	SUITE 100	 	TUCSON	 	AZ	 	 	85714	 
	Bio-Medical Applications of Ukiah, Inc., PACIFIC NW BILLING GROUP, 4560 S,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	COACH DRIVE, SUITE 100, TUCSON, AZ, 85714
	 	 	 	 	 	 	 	 	 	 	 	 	 	 




 







 




     


	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2008 Transferring Affiliates	 	FMS Billing Group	 	Billing Group Address	 	Billing Group Address 2	 	Billing Group City	 	Billing Group State	 	Billing Group Zip
	Bio-Medical Applications of Virginia, Inc.
	 	ROANOKE BILLING GROUP	 	2830 KEAGY ROAD	 	 	 	SALEM	 	VA	 	 	24153	 
	Bio-Medical Applications of Virginia, Inc., ROANOKE BILLING GROUP, 2830
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	KEAGY ROAD., SALEM, VA, 24153
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of West Virginia, Inc.
	 	ROANOKE BILLING GROUP	 	2830 KEAGY ROAD	 	 	 	SALEM	 	VA	 	 	24153	 
	Bio-Medical Applications of West Virginia, Inc., ROANOKE BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2830 KEAGY ROAD., SALEM, VA, 24153
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of West Virginia, Inc.
	 	KENTUCKY BILLING GROUP	 	6100 DUTCHMANS LANE	 	12TH FLOOR	 	LOUISVILLE	 	KY	 	 	40205	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of West Virginia, Inc., KENTUCKY BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	6100 DUTCHMANS LANE, 12TH FLOOR, LOUISVILLE, KY, 40205
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Wisconsin, Inc.
	 	UPPER MIDWEST BILLING GROUP	 	9120 SPRINGBROOK DRIVE	 	 	 	COON RAPIDS	 	MN	 	 	55433	 
	Bio-Medical Applications of Wisconsin, Inc., UPPER MIDWEST BILLING
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GROUP, 9120 SPRINGBROOK DRIVE., COON RAPIDS, MN, 55433
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bio-Medical Applications of Wisconsin, Inc.
	 	MICHIGAN BILLING GROUP	 	3500 MASSILLON ROAD SUITE 230	 	 	 	UNIONTOWN	 	OH	 	 	44685	 
	Bio-Medical Applications of Wisconsin, Inc., MICHIGAN BILLING GROUP, 3500
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MASSILLON ROAD SUITE 230, , UNIONTOWN, OH, 44685
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Brazoria Kidney Center, Inc.
	 	TYLER BILLING	 	3910 BROOKSIDE DRIVE	 	SUITE 100	 	TYLER	 	TX	 	 	75701	 
	Brazoria Kidney Center, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SUITE 100, TYLER, TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Brevard County Dialysis, LLC
	 	INDIANAPOLIS BILLING	 	10585 NORTH MERIDIAN STREET	 	SUITE 160	 	INDIANAPOLIS	 	IN	 	 	46290	 
	Brevard County Dialysis, LLC, INDIANAPOLIS BILLING, 10585 NORTH
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Clayton County Dialysis, LLC
	 	INDIANAPOLIS BILLING	 	10585 NORTH MERIDIAN STREET	 	SUITE 160	 	INDIANAPOLIS	 	IN	 	 	46290	 
	Clayton County Dialysis, LLC, INDIANAPOLIS BILLING, 10585 NORTH
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Clermont Dialysis Center, LLC
	 	INDIANAPOLIS BILLING	 	10585 NORTH MERIDIAN STREET	 	SUITE 160	 	INDIANAPOLIS	 	IN	 	 	46290	 
	Clermont Dialysis Center, LLC, INDIANAPOLIS BILLING, 10585 NORTH
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Columbus Area Renal Alliance, LLC
	 	CLEVELAND BILLING	 	25050 COUNTRY CLUB BOULEVARD	 	SUITE 250	 	NORTH OLMSTED	 	OH	 	 	44070	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Columbus Area Renal Alliance, LLC, CLEVELAND BILLING, 25050 COUNTRY
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	CLUB BOULEVARD, SUITE 250, NORTH OLMSTED, OH, 44070
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Conejo Valley Dialysis, Inc.
	 	SOUTHERN CALIFORNIA BILLING GROUP	 	1337 EAST THOUSAND OAKS BLVD	 	SUITE 216	 	THOUSAND OAKS	 	CA	 	 	91362	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Conejo Valley Dialysis, Inc., SOUTHERN CALIFORNIA BILLING GROUP, 1337
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	EAST THOUSAND OAKS BLVD, SUITE 216, THOUSAND OAKS, CA, 91362
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dialysis America Georgia, LLC
	 	KNOXVILLE BILLING GROUP	 	BILLING GROUP	 	1512 COLEMAN ROAD, SUITE 308	 	KNOXVILLE	 	TN	 	 	37919	 
	Dialysis America Georgia, LLC, KNOXVILLE BILLING GROUP, BILLING
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GROUP, 1512 COLEMAN ROAD, SUITE 308, KNOXVILLE, TN, 37919
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dialysis Associates of Northern New Jersey, L.L.C.
	 	ALLENTOWN BILLING GROUP	 	861 MARCON BLVD SUITE 2	 	 	 	ALLENTOWN	 	PA	 	 	18109	 
	Dialysis Associates of Northern New Jersey, L.L.C., ALLENTOWN BILLING
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GROUP, 861 MARCON BLVD SUITE 2, , ALLENTOWN, PA, 18109
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dialysis Associates, LLC
	 	INDIANAPOLIS BILLING	 	10585 NORTH MERIDIAN STREET	 	SUITE 160	 	INDIANAPOLIS	 	IN	 	 	46290	 
	Dialysis Associates, LLC, INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	STREET, SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dialysis Centers of America — Illinois, Inc.
	 	CHICAGO BILLING GROUP	 	ONE WESTBROOK DRIVE	 	TOWER 1, SUITE 1000	 	WESTCHESTER	 	IL	 	 	60154	 
	Dialysis Centers of America — Illinois, Inc., CHICAGO BILLING GROUP, ONE
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	WESTBROOK DRIVE, TOWER 1, SUITE 1000, WESTCHESTER, IL, 60154
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dialysis Centers of America — Illinois, Inc.
	 	CLEVELAND BILLING	 	25050 COUNTRY CLUB BOULEVARD	 	SUITE 250	 	NORTH OLMSTED	 	OH	 	 	44070	 
	Dialysis Centers of America — Illinois, Inc., CLEVELAND BILLING, 25050
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	COUNTRY CLUB BOULEVARD, SUITE 250, NORTH OLMSTED, OH,’ 44070
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Dialysis Centers of America — Illinois, Inc.
	 	INDIANAPOLIS BILLING	 	10585 NORTH MERIDIAN STREET	 	SUITE 160	 	INDIANAPOLIS	 	IN	 	 	46290	 
	Dialysis Centers of America — Illinois, Inc., INDIANAPOLIS BILLING, 10585
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	NORTH MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dialysis Management Corporation
	 	TYLER BILLING	 	3910 BROOKSIDE DRIVE	 	SUITE 100	 	TYLER	 	TX	 	 	75701	 
	Dialysis Management Corporation, TYLER BILLING, 3910 BROOKSIDE DRIVE,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SUITE 100, TYLER, TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dialysis Services of Cincinnati, Inc.
	 	NORTHERN OHIO BILLING GROUP	 	3500 MASSILLON ROAD	 	SUITE 280	 	UNIONTOWN	 	OH	 	 	44685	 
	Dialysis Services of Cincinnati, Inc., NORTHERN OHIO BILLING GROUP, 3500
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MASSILLON ROAD, SUITE 280, UNIONTOWN, OH, 44685
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dialysis Specialists of Topeka, Inc.
	 	ARIZONA BILLING GROUP	 	2917 S. DOBSON	 	SUITE 101	 	MESA	 	AZ	 	 	85202	 
	Dialysis Specialists of Topeka, Inc., ARIZONA BILLING GROUP, 2917 S,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DOBSON, SUITE 101, MESA, AZ, 85202
	 	LUBBOCK BILLING GROUP	 	4747 SOUTH LOOP 289,	 	SUITE 120	 	LUBBOCK	 	TX	 	 	79424	 
	Dialysis Specialists of Tulsa, Inc.
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dialysis Specialists of Tulsa, Inc. LUBBOCK BILLING GROUP, 4747 SOUTH
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	LOOP 289., SUITE 120., LUBBOCK, TX, 79424
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Douglas County Dialysis, LLC
	 	INDIANAPOLIS BILLING	 	10585 NORTH MERIDIAN STREET	 	SUITE 160	 	INDIANAPOLIS	 	IN	 	 	46290	 




 







 




     


	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2008 Transferring Affiliates	 	FMS Billing Group	 	Billing Group Address	 	Billing Group Address 2	 	Billing Group City	 	Billing Group State	 	Billing Group Zip
	Douglas County Dialysis, LLC, INDIANAPOLIS BILLING, 10585 NORTH
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Du Page Dialysis, Ltd.
	 	CHICAGO BILLING GROUP	 	ONE WESTBROOK DRIVE	 	TOWER 1, SUITE 1000	 	WESTCHESTER	 	IL	 	 	60154	 
	Du Page Dialysis, Ltd., CHICAGO BILLING GROUP, ONE WESTBROOK
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DRIVE, TOWER 1, SUITE 1000, WESTCHESTER, IL, 60154
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Everest Healthcare Indiana, Inc.
	 	KENTUCKY BILLING GROUP	 	6100 DUTCHMANS LANE	 	12TH FLOOR	 	LOUISVILLE	 	KY	 	 	40205	 
	Everest Healthcare Indiana, Inc., KENTUCKY BILLING GROUP, 6100
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DUTCHMANS LANE, 12TH FLOOR, LOUISVILLE, KY, 40205
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Everest Healthcare Indiana, Inc.
	 	NORTHERN OHIO BILLING GROUP	 	3500 MASSILLON ROAD	 	SUITE 280	 	UNIONTOWN	 	OH	 	 	44685	 
	Everest Healthcare Indiana, Inc., NORTHERN OHIO BILLING GROUP, 3500
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MASSILLON ROAD, SUITE 280, UNIONTOWN, OH, 44685
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Everest Healthcare Indiana, Inc.
	 	MICHIGAN BILLING GROUP	 	3500 MASSILLON ROAD SUITE 230	 	 	 	UNIONTOWN	 	OH	 	 	44685	 
	Everest Healthcare Indiana, Inc., MICHIGAN BILLING GROUP, 3500
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MASSILLON ROAD SUITE 230., UNIONTOWN, OH, 44685
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Everest Healthcare Ohio, Inc.
	 	NORTHERN OHIO BILLING GROUP	 	3500 MASSILLON ROAD	 	SUITE 280	 	UNIONTOWN	 	OH	 	 	44685	 
	Everest Healthcare Ohio, Inc., NORTHERN OHIO BILLING GROUP, 3500
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MASSILLON ROAD, SUITE 280, UNIONTOWN, OH, 44685
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Everest Healthcare Rhode Island, Inc.
	 	NEW BEDFORD BILLING GROUP	 	700 PLEASANT STREET	 	 	 	NEW BEDFORD	 	MA	 	 	02740	 
	Everest Healthcare Rhode Island, Inc., NEW BEDFORD BILLING GROUP, 700
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	PLEASANT STREET., NEW BEDFORD, MA, 2740
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Everest Healthcare Texas, L.P.
	 	WACO BILLING GROUP	 	UPTOWN PLAZA	 	1110 RICHLAND DR., #3	 	WACO	 	TX	 	 	76710	 
	Everest Healthcare Texas, L.P., WACO BILLING GROUP, UPTOWN PLAZA,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	1110 RICHLAND DR., #3, WACO, TX, 76710
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Fondren Dialysis Clinic, Inc.
	 	TYLER BILLING	 	3910 BROOKSIDE DRIVE	 	SUITE 100	 	TYLER	 	TX	 	 	75701	 
	Fondren Dialysis Clinic, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SUITE 100, TYLER, TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Fort Scott Regional Dialysis Center, Inc.
	 	TYLER BILLING	 	3910 BROOKSIDE DRIVE	 	SUITE 100	 	TYLER	 	TX	 	 	75701	 
	Fort Scott Regional Dialysis Center, Inc., TYLER BILLING, 3910 BROOKSIDE
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DRIVE, SUITE 100, TYLER, TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Four State Regional Dialysis Center, Inc.
	 	TYLER BILLING	 	3910 BROOKSIDE DRIVE	 	SUITE 100	 	TYLER	 	TX	 	 	75701	 
	Four State Regional Dialysis Center, Inc., TYLER BILLING, 3910 BROOKSIDE
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DRIVE, SUITE 100, TYLER, TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Fresenius Medical Care Dialysis Services - Oregon, LLC
	 	PACIFIC NW BILLING GROUP	 	4560 S. COACH DRIVE	 	SUITE 100	 	TUCSON	 	AZ	 	 	85714	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Fresenius Medical Care Dialysis Services — Oregon, LLC, PACIFIC NW BILLING
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GROUP, 4560 S. COACH DRIVE, SUITE 100, TUCSON, AZ, 85714
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Fresenius Medical Care Dialysis Services Colorado LLC
	 	ALBUQUERQUE BILLING GROUP	 	909 VIRGINIA NE	 	SUITE 112	 	ALBUQUERQUE	 	NM	 	 	87108	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Fresenius Medical Care Dialysis Services Colorado LLC, ALBUQUERQUE
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BILLING GROUP, 909 VIRGINIA NE, SUITE 112, ALBUQUERQUE, NM, 87108
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Gulf Region Mobile Dialysis, Inc.
	 	SAN ANTONIO BILLING GROUP	 	6100 BANDERA ROAD	 	SUITE 601	 	SAN ANTONIO	 	TX	 	 	78238	 
	Gulf Region Mobile Dialysis, Inc., SAN ANTONIO BILLING GROUP, 6100
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BANDERA ROAD, SUITE 601, SAN ANTONIO, TX, 78238
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Haemo-Stat, Inc.
	 	SOUTHERN CALIFORNIA BILLING GROUP	 	1337 EAST THOUSAND OAKS BLVD	 	SUITE 216	 	THOUSAND OAKS	 	CA	 	 	91362	 
	Haemo-Stat, Inc., SOUTHERN CALIFORNIA BILLING GROUP, 1337 EAST
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	THOUSAND OAKS BLVD, SUITE 216, THOUSAND OAKS, CA, 91362
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Henry Dialysis Center, LLC
	 	INDIANAPOLIS BILLING	 	10585 NORTH MERIDIAN STREET	 	SUITE 160	 	INDIANAPOLIS	 	IN	 	 	46290	 
	Henry Dialysis Center, LLC. INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	STREET, SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Holton Dialysis Clinic, LLC
	 	INDIANAPOLIS BILLING	 	10585 NORTH MERIDIAN STREET	 	SUITE 160	 	INDIANAPOLIS	 	IN	 	 	46290	 
	Holton Dialysis Clinic, LLC. INDIANAPOLIS BILLING; 10585 NORTH MERIDIAN
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	STREET, SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Home Dialysis of Muhlenburg County, Inc.
	 	KENTUCKY BILLING GROUP	 	6100 DUTCHMANS LANE	 	12TH FLOOR	 	LOUISVILLE	 	KY	 	 	40205	 
	Home Dialysis of Muhlenburg County, Inc., KENTUCKY BILLING GROUP, 6100
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DUTCHMANS LANE, 12TH FLOOR, LOUISVILLE, KY, 40205
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Jefferson County Dialysis, Inc.
	 	TYLER BILLING	 	3910 BROOKSIDE DRIVE	 	SUITE 100	 	TYLER	 	TX	 	 	75701	 
	Jefferson County Dialysis, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SUITE 100, TYLER, TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	KDCO, Inc.
	 	TYLER BILLING	 	3910 BROOKSIDE DRIVE	 	SUITE 100	 	TYLER	 	TX	 	 	75701	 
	KDCO, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE 100, TYLER,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Kentucky Renal Care Group, LLC
	 	INDIANAPOLIS BILLING	 	10585 NORTH MERIDIAN STREET	 	SUITE 160	 	INDIANAPOLIS	 	IN	 	 	46290	 
	Kentucky Renal Care Group, LLC. INDIANAPOLIS BILLING, 10585 NORTH
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Lawton Dialysis, Inc.
	 	TYLER BILLING	 	3910 BROOKSIDE DRIVE	 	SUITE 100	 	TYLER	 	TX	 	 	75701	 
	Lawton Dialysis, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE 100,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TYLER, TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Little Rock Dialysis, Inc.
	 	TYLER BILLING	 	3910 BROOKSIDE DRIVE	 	SUITE 100	 	TYLER	 	TX	 	 	75701	 




 







 




     


	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2008 Transferring Affiliates	 	FMS Billing Group	 	Billing Group Address	 	Billing Group Address 2	 	Billing Group City	 	Billing Group State	 	Billing Group Zip
	Little Rock Dialysis, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	100, TYLER, TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Maumee Dialysis Services, LLC
	 	INDIANAPOLIS BILLING	 	10585 NORTH MERIDIAN STREET	 	SUITE 160	 	INDIANAPOLIS	 	IN	 	 	46290	 
	Maumee Dialysis Services, LLC, INDIANAPOLIS BILLING, 10585 NORTH
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Miami Regional Dialysis Center, Inc.
	 	TYLER BILLING	 	3910 BROOKSIDE DRIVE	 	SUITE 100	 	TYLER	 	TX	 	 	75701	 
	Miami Regional Dialysis Center, Inc., TYLER BILLING, 3910 BROOKSIDE
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DRIVE, SUITE 100, TYLER, TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Michigan Home Dialysis Center, Inc.
	 	INDIANAPOLIS BILLING	 	10585 NORTH MERIDIAN STREET	 	SUITE 160	 	INDIANAPOLIS	 	IN	 	 	46290	 
	Michigan Home Dialysis Center, Inc., INDIANAPOLIS BILLING, 10585 NORTH
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	National Medical Care, Inc.
	 	CHICAGO BILLING GROUP	 	ONE WESTBROOK DRIVE	 	TOWER 1, SUITE 1000	 	WESTCHESTER	 	IL	 	 	60154	 
	National Medical Care, Inc., CHICAGO BILLING GROUP, ONE WESTBROOK
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DRIVE, TOWER 1, SUITE 1000, WESTCHESTER, IL, 60154
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	National Medical Care, Inc.
	 	MICHIGAN BILLING GROUP	 	3500 MASSILLON ROAD	 	SUITE 230	 	UNIONTOWN	 	OH	 	 	44685	 
	National Medical Care, Inc., MICHIGAN BILLING GROUP, 3500 MASSILLON
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ROAD, SUITE 230, UNIONTOWN, OH, 44685
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	National Medical Care, Inc.
	 	KNOXVILLE BILLING GROUP	 	BILLING GROUP	 	1512 COLEMAN ROAD, SUITE 308	 	KNOXVILLE	 	TN	 	 	37919	 
	National Medical Care, Inc., KNOXVILLE BILLING GROUP, BILLING GROUP,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	1512 COLEMAN ROAD, SUITE 308, KNOXVILLE, TN, 37919
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	National Medical Care, Inc.
	 	OCALA BILLING GROUP	 	BMA OCALA, INC.	 	1308 SE 25TH LOOP, SUITE 102	 	OCALA	 	FL	 	 	34471	 
	National Medical Care, Inc., OCALA BILLING GROUP, BMA OCALA, INC., 1308
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SE 25TH LOOP, SUITE 102, OCALA, FL, 34471
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	National Medical Care, Inc.
	 	ORLANDO BILLING GROUP	 	BMA ORLANDO, INC.	 	1155 W STATE ROAD 434, SUITE 125	 	LONGWOOD	 	FL	 	 	32750	 
	National Medical Care, Inc., ORLANDO BILLING GROUP, BMA ORLANDO.
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	INC., 1155 W STATE ROAD 434, SUITE 125, LONGWOOD, FL, 32750
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	National Medical Care, Inc.
	 	ALLENTOWN BILLING GROUP	 	861 MARCON BLVD SUITE 2	 	 	 	ALLENTOWN	 	PA	 	 	18109	 
	National Medical Care, Inc., ALLENTOWN BILLING GROUP, 861 MARCON
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BLVD SUITE 2., ALLENTOWN, PA, 18109
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	National Medical Care, Inc.
	 	TAMPA BILLING GROUP	 	BMA TAMPA INC.	 	5625 WEST WATERS AVENUE, SUITE	 	TAMPA	 	FL	 	 	33634	 
	National Medical Care, Inc., TAMPA BILLING GROUP, BMA TAMPA INC., 5625
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	WEST WATERS AVENUE, SUITE A, TAMPA, FL, 33634
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	National Nephrology Associates of Texas, L.P.
	 	TYLER BILLING	 	3910 BROOKSIDE DRIVE	 	SUITE 100	 	TYLER	 	TX	 	 	75701	 
	National Nephrology Associates of Texas, L.P., TYLER BILLING, 3910
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BROOKSIDE DRIVE, SUITE 100, TYLER, TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	NNA of Alabama, Inc.
	 	INDIANAPOLIS BILLING	 	10585 NORTH MERIDIAN STREET	 	SUITE 160	 	INDIANAPOLIS	 	IN	 	 	46290	 
	NNA of Alabama, Inc., INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	STREET, SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	NNA of East Orange, L.L.C.
	 	CLEVELAND BILLING	 	25050 COUNTRY CLUB BOULEVARD	 	SUITE 250	 	NORTH OLMSTED	 	OH	 	 	44070	 
	NNA of East Orange, L.L.C., CLEVELAND BILLING, 25050 COUNTRY CLUB
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BOULEVARD, SUITE 250, NORTH OLMSTED, OH, 44070
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	NNA of Florida, LLC
	 	INDIANAPOLIS BILLING	 	10585 NORTH MERIDIAN STREET	 	SUITE 160	 	INDIANAPOLIS	 	IN	 	 	46290	 
	NNA of Florida, LLC, INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	STREET, SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	NNA of Georgia, Inc.
	 	INDIANAPOLIS BILLING	 	10585 NORTH MERIDIAN STREET	 	SUITE 160	 	INDIANAPOLIS	 	IN	 	 	46290	 
	NNA of Georgia, Inc., INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	STREET, SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	NNA
of Harrison, L.L.C.
	 	CLEVELAND BILLING	 	25050 COUNTRY CLUB BOULEVARD	 	SUITE 250	 	NORTH OLMSTED	 	OH	 	 	44070	 
	NNA of Harrison, L.L.C., CLEVELAND BILLING, 25050 COUNTRY CLUB
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BOULEVARD, SUITE 250, NORTH OLMSTED, OH, 44070
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	NNA of Louisiana, LLC
	 	INDIANAPOLIS BILLING	 	10585 NORTH MERIDIAN STREET	 	SUITE 160	 	INDIANAPOLIS	 	IN	 	 	46290	 
	NNA of Louisiana, LLC, INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	STREET, SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	NNA
of Oklahoma, L.L.C.
	 	TYLER BILLING	 	3910 BROOKSIDE DRIVE	 	SUITE 100	 	TYLER	 	TX	 	 	75701	 
	NNA of Oklahoma, L.L.C., TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	100, TYLER, TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	NNA of Rhode Island, Inc.
	 	CLEVELAND BILLING	 	25050 COUNTRY CLUB BOULEVARD	 	SUITE 250	 	NORTH OLMSTED	 	OH	 	 	44070	 
	NNA of Rhode Island, Inc., CLEVELAND BILLING, 25050 COUNTRY CLUB
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BOULEVARD, SUITE 250, NORTH OLMSTED, OH, 44070
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	NNA of Toledo, Inc.
	 	INDIANAPOLIS BILLING	 	10585 NORTH MERIDIAN STREET	 	SUITE 160	 	INDIANAPOLIS	 	IN	 	 	46290	 
	NNA of Toledo, Inc., INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	STREET, SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	NNA-Saint Bamabas, L.L.C.
	 	CLEVELAND BILLING	 	25050 COUNTRY CLUB BOULEVARD	 	SUITE 250	 	NORTH OLMSTED	 	OH	 	 	44070	 
	NNA-Saint Bamabas, L.L.C., CLEVELAND BILLING, 25050 COUNTRY CLUB
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BOULEVARD, SUITE 250, NORTH OLMSTED, OH, 44070
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	NNA-Saint Bamabas-Livingston, L.L.C.
	 	CLEVELAND BILLING	 	25050 COUNTRY CLUB BOULEVARD	 	SUITE 250	 	NORTH OLMSTED	 	OH	 	 	44070	 




 







 






     



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2008 Transferring Affiliates	 	FMS Billing Group	 	Billing Group Address	 	Billing Group Address 2	 	Billing Group City	 	Billing Group State	 	Billing Group Zip	 
	NNA-Saint
Bamabas-Livingston, L.L.C.,CLEVELAND BILLING, 25050
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	COUNTRY CLUB BOULEVARD, SUITE 250, NORTH OLMSTED, OH, 44070
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Norcross Dialysis Center, LLC
	 	INDIANAPOLIS BILLING	 	10585 NORTH MERIDIAN STREET	 	SUITE 160	 	INDIANAPOLIS	 	IN	 	 	46290	 
	Norcross
Dialysis Center, LLC, INDIANAPOLIS BILLING, 10585 NORTH
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MERIDIAN
STREET, SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	NORMAN
NEPHROLOGY, P.L.L.C.
	 	LUBBOCK BILLING GROUP	 	4747 SOUTH LOOP 289	 	SUITE 120,	 	LUBBOCK	 	TX	 	 	79424	 
	NORMAN
NEPHROLOGY, P.L.L.C., LUBBOCK BILLING GROUP, 4747 SOUTH
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	LOOP 289,
SUITE 120, LUBBOCK, TX, 79424
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Northeast
Alabama Kidney Clinic, Inc.
	 	INDIANAPOLIS BILLING	 	10585 NORTH MERIDIAN STREET	 	SUITE 160	 	INDIANAPOLIS	 	IN	 	 	46290	 
	Northeast
Alabama Kidney Clinic, Inc., INDIANAPOLIS BILLING, 10585 NORTH
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Northern New Jersey Dialysis, LLC
	 	ALLENTOWN BILLING GROUP	 	861 MARCON BLVD 	 	SUITE 2	 	ALLENTOWN	 	PA	 	 	18109	 
	Northern New Jersey Dialysis, LLC, ALLENTOWN BILLING GROUP, 861
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MARCON BLVD
SUITE 2, ALLENTOWN, PA, 18109
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Physicians Dialysis Company, Inc.
	 	CLEVELAND BILLING	 	25050 COUNTRY CLUB BOULEVARD	 	SUITE 250	 	NORTH OLMSTED	 	OH	 	 	44070	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Physicians Dialysis Company, Inc., CLEVELAND BILLING, 25050 COUNTRY
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	CLUB BOULEVARD, SUITE 250, NORTH OLMSTED, OH, 44070
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	RCG
Bloomington, LLC
	 	INDIANAPOLIS BILLING	 	10585 NORTH MERIDIAN STREET	 	SUITE 160	 	INDIANAPOLIS	 	IN	 	 	46290	 
	RCG Bloomington, LLC, INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	STREET, SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	RCG East Texas, LLP
	 	TYLER BILLING	 	3910 BROOKSIDE DRIVE	 	SUITE 100	 	TYLER	 	TX	 	 	75701	 
	RCG East Texas, LLP, TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE 100,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TYLER, TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	RCG Indiana, L.L.C.
	 	INDIANAPOLIS BILLING	 	10585 NORTH MERIDIAN STREET	 	SUITE 160	 	INDIANAPOLIS	 	IN	 	 	46290	 
	RCG Indiana, L.L.C., INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	STREET, SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	RCG Irving, LLP
	 	TYLER BILLING	 	3910 BROOKSIDE DRIVE	 	SUITE 100	 	TYLER	 	TX	 	 	75701	 
	RCG Irving,
LLP, TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE 100,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TYLER, TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	RCG Martin, LLC
	 	INDIANAPOLIS BILLING	 	10585 NORTH MERIDIAN STREET	 	SUITE 160	 	INDIANAPOLIS	 	IN	 	 	46290	 
	RCG Martin,
LLC, INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	STREET,
SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	RCG Memphis
East, LLC
	 	INDIANAPOLIS BILLING	 	10585 NORTH MERIDIAN STREET	 	SUITE 160	 	INDIANAPOLIS	 	IN	 	 	46290	 
	RCG Memphis
East, LLC, INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	STREET,
SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	RCG Mississippi, Inc.
	 	INDIANAPOLIS BILLING	 	10585 NORTH MERIDIAN STREET	 	SUITE 160	 	INDIANAPOLIS	 	IN	 	 	46290	 
	RCG Mississippi, Inc., INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	STREET, SUITE 160, INDIANAPOLIS, IN, 48290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	RCG Mississippi, Inc.
	 	TYLER BILLING	 	3910 BROOKSIDE DRIVE	 	SUITE 100	 	TYLER	 	TX	 	 	75701	 
	RCG
Mississippi, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE 100,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TYLER, TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	RCG Mississippi, Inc.
	 	MESA BILLING	 	1750 SOUTH MESA DRIVE	 	SUITE 110	 	MESA	 	AZ	 	 	85210	 
	RCG
Mississippi. Inc., MESA BILLING, 1750 SOUTH MESA DRIVE, SUITE 110,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MESA, AZ, 85210
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	RCG University Division, Inc.
	 	CLEVELAND BILLING	 	25050 COUNTRY CLUB BOULEVARD	 	SUITE 250	 	NORTH OLMSTED	 	OH	 	 	44070	 
	RCG
University Division, Inc., CLEVELAND BILLING, 25050 COUNTRY CLUB
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BOULEVARD,
SUITE 250, NORTH OLMSTED, OH, 44070
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	RCG
University Division, Inc.
	 	INDIANAPOLIS BILLING	 	10585 NORTH MERIDIAN STREET	 	SUITE 160	 	INDIANAPOLIS	 	IN	 	 	46290	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renal Care Group Alaska, Inc.
	 	MESA BILLING	 	1750 SOUTH MESA DRIVE	 	SUITE 110	 	MESA	 	AZ	 	 	85210	 
	Renal Care
Group Alaska, Inc., MESA BILLING, 1750 SOUTH MESA DRIVE, SUITE 110,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MESA, AZ, 85210
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renal Care
Group East, Inc.
	 	CLEVELAND BILLING	 	25050 COUNTRY CLUB BOULEVARD	 	SUITE 250	 	NORTH OLMSTED	 	OH	 	 	44070	 
	Renal Care
Group East, Inc., CLEVELAND BILLING, 25050 COUNTRY CLUB
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BOULEVARD,
SUITE 250, NORTH OLMSTED, OH, 44070
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renal Care
Group Northwest, Inc.
	 	MESA BILLING	 	1750 SOUTH MESA DRIVE	 	SUITE 110	 	MESA	 	AZ	 	 	85210	 
	Renal Care
Group Northwest, Inc., MESA BILLING, 1750 SOUTH MESA DRIVE, SUITE
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	110, MESA, AZ, 85210
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renal Care
Group of the Midwest, Inc.
	 	TYLER BILLING	 	3910 BROOKSIDE DRIVE	 	SUITE 100	 	TYLER	 	TX	 	 	75701	 
	Renal Care
Group of the Midwest, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	100, TYLER, TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renal Care
Group of the Ozarks, LLC
	 	TYLER BILLING	 	3910 BROOKSIDE DRIVE	 	SUITE 100	 	TYLER	 	TX	 	 	75701	 
	Renal Care
Group of the Ozarks, LLC, TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	100, TYLER, TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 






 









 






     



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2008 Transferring Affiliates	 	FMS Billing Group	 	Billing Group Address	 	Billing Group Address 2	 	Billing Group City	 	Billing Group State	 	Billing Group Zip
	Renal Care Group of the South, Inc.

	 	INDIANAPOLIS BILLING
	 	10585 NORTH MERIDIAN STREET
	 	SUITE 160
	 	INDIANAPOLIS
	 	IN
	 	 	46290	 
	Renal Care Group of the South, Inc., INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	STREET, SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renal Care Group of the Southeast, Inc.

	 	INDIANAPOLIS BILLING
	 	10585 NORTH MERIDIAN STREET
	 	SUITE 160
	 	INDIANAPOLIS
	 	IN
	 	 	46290	 
	Renal Care Group of the Southeast, Inc., INDIANAPOLIS BILLING, 10585 NORTH
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renal Care Group South New Mexico, LLC

	 	TYLER BILLING
	 	3910 BROOKSIDE DRIVE
	 	SUITE 100
	 	TYLER
	 	TX
	 	 	75701	 
	Renal Care Group South New Mexico, LLC, TYLER BILLING, 3910 BROOKSIDE DRIVE,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SUITE 100, TYLER, TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renal Care Group Southwest, L.P.

	 	TYLER BILLING
	 	3910 BROOKSIDE DRIVE
	 	SUITE 100
	 	TYLER
	 	TX
	 	 	75701	 
	Renal Care Group Southwest, L.P., TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	100, TYLER, TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renal Care Group Texas, Inc.

	 	TYLER BILLING
	 	3910 BROOKSIDE DRIVE
	 	SUITE 100
	 	TYLER
	 	TX
	 	 	75701	 
	Renal Care Group Texas, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE 100,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TYLER, TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renal Care Group Westlake, LLC

	 	CLEVELAND BILLING
	 	25050 COUNTRY CLUB BOULEVARD
	 	SUITE 250
	 	NORTH OLMSTED
	 	OH
	 	 	44070	 
	Renal Care Group Westlake, LLC, CLEVELAND BILLING, 25050 COUNTRY CLUB
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BOULEVARD, SUITE 250, NORTH OLMSTED, OH, 44070
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renal Care Group, Inc.

	 	TYLER BILLING
	 	3910 BROOKSIDE DRIVE
	 	SUITE 100
	 	TYLER
	 	TX
	 	 	75701	 
	Renal Care Group, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE 100, TYLER,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renex Dialysis Clinic of Bridgeton, Inc.

	 	TYLER BILLING
	 	3910 BROOKSIDE DRIVE
	 	SUITE 100
	 	TYLER
	 	TX
	 	 	75701	 
	Renex Dialysis Clinic of Bridgeton, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	100, TYLER, TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renex Dialysis Clinic of Creve Coeur, Inc.

	 	TYLER BILLING
	 	3910 BROOKSIDE DRIVE
	 	SUITE 100
	 	TYLER
	 	TX
	 	 	75701	 
	Renex Dialysis Clinic of Creve Coeur, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SUITE 100, TYLER, TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renex Dialysis Clinic of Doylestown, Inc.

	 	CLEVELAND BILLING
	 	25050 COUNTRY CLUB BOULEVARD
	 	SUITE 250
	 	NORTH OLMSTED
	 	OH
	 	 	44070	 
	Renex Dialysis Clinic of Doylestown, Inc., CLEVELAND BILLING, 25050 COUNTRY CLUB
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BOULEVARD, SUITE 250, NORTH OLMSTED, OH, 44070
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renex Dialysis Clinic of Maplewood, Inc.

	 	TYLER BILLING
	 	3910 BROOKSIDE DRIVE
	 	SUITE 100
	 	TYLER
	 	TX
	 	 	75701	 
	Renex Dialysis Clinic of Maplewood, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SUITE 100, TYLER, TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renex Dialysis Clinic of Orange, Inc.

	 	CLEVELAND BILLING
	 	25050 COUNTRY CLUB BOULEVARD
	 	SUITE 250
	 	NORTH OLMSTED
	 	OH
	 	 	44070	 
	Renex Dialysis Clinic of Orange, Inc., CLEVELAND BILLING, 25050 COUNTRY CLUB
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BOULEVARD, SUITE 250, NORTH OLMSTED, OH, 44070
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renex Dialysis Clinic of Penn Hills, Inc.

	 	CLEVELAND BILLING
	 	25050 COUNTRY CLUB BOULEVARD
	 	SUITE 250
	 	NORTH OLMSTED
	 	OH
	 	 	44070	 
	Renex Dialysis Clinic of Penn Hills, Inc., CLEVELAND BILLING, 25050 COUNTRY CLUB
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BOULEVARD, SUITE 250, NORTH OLMSTED, OH, 44070
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renex Dialysis Clinic of Philadelphia, Inc.

	 	CLEVELAND BILLING
	 	25050 COUNTRY CLUB BOULEVARD
	 	SUITE 250
	 	NORTH OLMSTED
	 	OH
	 	 	44070	 
	Renex Dialysis Clinic of Philadelphia, Inc., CLEVELAND BILLING, 25050 COUNTRY CLUB
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BOULEVARD, SUITE 250, NORTH OLMSTED, OH, 44070
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renex Dialysis Clinic of Pittsburgh, Inc.

	 	CLEVELAND BILLING
	 	25050 COUNTRY CLUB BOULEVARD
	 	SUITE 250
	 	NORTH OLMSTED
	 	OH
	 	 	44070	 
	Renex Dialysis Clinic of Pittsburgh, Inc., CLEVELAND BILLING, 25050 COUNTRY CLUB
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BOULEVARD. SUITE 250, NORTH OLMSTED, OH, 44070
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renex Dialysis Clinic of Shaler, Inc.

	 	CLEVELAND BILLING
	 	25050 COUNTRY CLUB BOULEVARD
	 	SUITE 250
	 	NORTH OLMSTED
	 	OH
	 	 	44070	 
	Renex Dialysis Clinic of Shaler, Inc., CLEVELAND BILLING, 25050 COUNTRY CLUB
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BOULEVARD, SUITE 250, NORTH OLMSTED, OH, 44070
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renex Dialysis Clinic of South Georgia, Inc.

	 	INDIANAPOLIS BILLING
	 	10585 NORTH MERIDIAN STREET
	 	SUITE 160
	 	INDIANAPOLIS
	 	IN
	 	 	46290	 
	Renex Dialysis Clinic of South Georgia, Inc., INDIANAPOLIS BILLING, 10585 NORTH
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MERIDIAN STREET, SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renex Dialysis Clinic of St, Louis, Inc.

	 	TYLER BILLING
	 	3910 BROOKSIDE DRIVE
	 	SUITE 100
	 	TYLER
	 	TX
	 	 	75701	 
	Renex Dialysis Clinic of St. Louis, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	100, TYLER, TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renex Dialysis Clinic of Union, Inc.

	 	TYLER BILLING
	 	3910 BROOKSIDE DRIVE
	 	SUITE 100
	 	TYLER
	 	TX
	 	 	75701	 
	Renex Dialysis Clinic of Union, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	100, TYLER, TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renex Dialysis Clinic of University City, Inc.

	 	TYLER BILLING
	 	3910 BROOKSIDE DRIVE
	 	SUITE 100
	 	TYLER
	 	TX
	 	 	75701	 
	Renex Dialysis Clinic of University City, Inc. TYLER BILLING, 3910 BROOKSIDE DRIVE,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SUITE 100, TYLER, TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renex Dialysis Clinic of Woodbury, Inc.

	 	CLEVELAND BILLING
	 	25050 COUNTRY CLUB BOULEVARD
	 	SUITE 250
	 	NORTH OLMSTED
	 	OH
	 	 	44070	 
	Renex Dialysis Clinic of Woodbury, Inc., CLEVELAND BILLING, 25050 COUNTRY CLUB
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BOULEVARD, SUITE 250, NORTH OLMSTED. OH, 44070
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renex Dialysis Facilities, Inc.

	 	TYLER BILLING
	 	3910 BROOKSIDE DRIVE
	 	SUITE 100
	 	TYLER
	 	TX
	 	 	75701	 
	Renex Dialysis Facilities, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE. SUITE 100,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TYLER, TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renex Dialysis Facilities, Inc.

	 	MESA BILLING
	 	1750 SOUTH MESA DRIVE
	 	SUITE 110
	 	MESA
	 	AZ
	 	 	85210	 
	Renex Dialysis Facilities, Inc., MESA BILLING, 1750 SOUTH MESA DRIVE, SUITE 110,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MESA, AZ, 85210
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	San Diego Dialysis Services, Inc.

	 	SAN DIEGO BILLING GROUP
	 	2917 S. DOBSON
	 	SUITE 101
	 	MESA
	 	AZ
	 	 	85202	 
	San Diego Dialysis Services, Inc., SAN DIEGO BILLING GROUP, 2917 S. DOBSON, SUITE
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	101, MESA, AZ, 85202
	 	 	 	 	 	 	 	 	 	 	 	 	 	 






 









 






     



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2008 Transferring Affiliates	 	FMS Billing Group	 	Billing Group Address	 	Billing Group Address 2	 	Billing Group City	 	Billing Group State	 	Billing Group Zip
	Santa Barbara Community Dialysis Center, Inc.

	 	SOUTHERN CALIFORNIA BILLING GROUP
	 	1337 EAST THOUSAND OAKS BLVD
	 	SUITE 216
	 	THOUSAND OAKS
	 	CA
	 	 	91362	 
	Santa Barbara Community Dialysis Center, Inc., SOUTHERN CALIFORNIA BILLING
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GROUP, 1337 EAST THOUSAND OAKS BLVD, SUITE 216, THOUSAND OAKS, CA,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	91362
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Smyrna Dialysis Center, LLC

	 	INDIANAPOLIS BILLING
	 	10585 NORTH MERIDIAN STREET
	 	SUITE 160
	 	INDIANAPOLIS
	 	IN
	 	 	46290	 
	Smyrna Dialysis Center, LLC, INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	STREET, SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SSKG, Inc.

	 	INDIANAPOLIS BILLING
	 	10585 NORTH MERIDIAN STREET
	 	SUITE 160
	 	INDIANAPOLIS
	 	IN
	 	 	46290	 
	SSKG, Inc.. INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN STREET, SUITE 160,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	STAT Dialysis Corporation

	 	TYLER BILLING
	 	3910 BROOKSIDE DRIVE
	 	SUITE 100
	 	TYLER
	 	TX
	 	 	75701	 
	STAT Dialysis Corporation, TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE 100,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TYLER, TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Stone Mountain Dialysis Center, LLC

	 	INDIANAPOLIS BILLING
	 	10585 NORTH MERIDIAN STREET
	 	SUITE 160
	 	INDIANAPOLIS
	 	IN
	 	 	46290	 
	Stone Mountain Dialysis Center, LLC, INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	STREET, SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Stuttgart Dialysis, LLC

	 	TYLER BILLING
	 	3910 BROOKSIDE DRIVE
	 	SUITE 100
	 	TYLER
	 	TX
	 	 	75701	 
	Stuttgart Dialysis, LLC, TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE 100, TYLER,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Terrell Dialysis Center, LLC

	 	WACO BILLING GROUP
	 	UPTOWN PLAZA
	 	1110 RICHLAND DR., #3
	 	WACO
	 	TX
	 	76710

	Terrell Dialysis Center, LLC, WACO BILLING GROUP, UPTOWN PLAZA, 1110 RICHLAND
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DR., #3, WACO, TX, 76710
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Three
Rivers Dialysis Services, LLC

	 	INDIANAPOLIS BILLING
	 	10585 NORTH MERIDIAN STREET
	 	SUITE 160
	 	INDIANAPOLIS
	 	IN
	 	 	46290	 
	Three Rivers Dialysis Services, LLC, INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	STREET, SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	West Palm Dialysis, LLC

	 	INDIANAPOLIS BILLING
	 	10585 NORTH MERIDIAN STREET
	 	SUITE 160
	 	INDIANAPOLIS
	 	IN
	 	 	46290	 
	West Palm Dialysis, LLC, INDIANAPOLIS BILLING, 10585 NORTH MERIDIAN STREET,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SUITE 160, INDIANAPOLIS, IN, 46290
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Wharton Dialysis, Inc.

	 	TYLER BILLING
	 	3910 BROOKSIDE DRIVE
	 	SUITE 100
	 	TYLER
	 	TX
	 	 	75701	 
	Wharton Dialysis, Inc., TYLER BILLING, 3910 BROOKSIDE DRIVE, SUITE 100, TYLER,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TX, 75701
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	WSKC Dialysis Services, Inc.

	 	CHICAGO BILLING GROUP
	 	ONE WESTBROOK DRIVE
	 	TOWER 1, SUITE 1000
	 	WESTCHESTER
	 	IL
	 	 	60154	 
	WSKC Dialysis Services, Inc., CHICAGO BILLING GROUP, ONE WESTBROOK DRIVE,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TOWER 1 , SUITE 1000, WESTCHESTER, IL, 60154
	 	 	 	 	 	 	 	 	 	 	 	 	 	 







 











 








EXHIBIT J




to




FOURTH AMENDED AND RESTATED




TRANSFER AND ADMINISTRATION AGREEMENT




[FORM OF BUSINESS ASSOCIATE AGREEMENT]




 









 












Schedule [Insert Schedule Number or Letter Here]




HIPAA Business Associate Terms and Conditions



These HIPAA Business Associate Terms and Conditions are expressly made part of and incorporated
into the [name of underlying agreement) (the “Agreement”). Fresenius Medical Care North America
(“FMCNA”) and [NAME OF BA] (“Business Associate”) (each sometimes referred to individually as a
“Party” and collectively as the “Parties”), hereby agree to the following terms and conditions:




Recitals



FMCNA is required to meet the requirements of the Health Insurance Portability and Accountability
Act of 1996 (PL 104 – 91) (“HIPAA”) and regulations enacted by the United States Department of Health
and Human Services at 45 C.F.R. Parts 160 – 164 (the “Privacy and Security Rules”).



[NAME OF BA] (“Business Associate”) provides services to FMCNA that involve the access to
individually identifiable health information (“Protected Health Information” or “PHI”) created,
received, maintained or transmitted by or on behalf of FMCNA.



As required by the Privacy and Security Rules, FMCNA and Business Associate agree to the Business
Associate Terms and Conditions relating to the use, disclosure and protection of PHI. These
Business Associate Terms and Conditions are required to allow Business Associate to provide its
services to FMCNA.



For purposes of these Business Associate Terms and Conditions, all capitalized terms shall have the
meanings set forth herein; provided, however, that if a capitalized term is not defined herein, it
shall have the meaning set forth in the Privacy and Security Rules.




1. Responsibilities of Business Associate





If, during the term of this Agreement, Business Associate is in receipt of PHI, Business
Associate hereby agrees to do the following:




	 	a.	 	Use and/or disclose the PHI only as permitted or required by the Agreement or as
otherwise Required by Law.
	 
	 	b.	 	Report to the designated Privacy and Security Officer of FMCNA, in writing, any use
and/or disclosure of the PHI that is not permitted or required by the Agreement of which
Business Associate becomes aware within two (2) days of Business Associate’s discovery of
such unauthorized use and/or disclosure.
	 
	 	c.	 	Establish procedures for mitigating, to the greatest extent possible, any deleterious
effects from any improper use and/or disclosure of PHI that Business Associate reports to
FMCNA.
	 
	 	d.	 	Use appropriate safeguards to prevent unauthorized use and/or disclosure of PHI.
	 
	 	e.	 	Implement Administrative, Physical, and Technical safeguards that reasonably and
appropriately protect the Confidentiality, Integrity and Availability of the Electronic
PHI that Business Associate creates, receives, maintains, or transmits on behalf of FMCNA.





Page 1 of 3









 













	f.	 	Require all of its subcontractors and agents that create, receive, maintain, transmit, use,
or have access to, PHI governed by this Agreement to agree, in writing, to adhere to the same
restrictions and conditions on the use, disclosure, and/or protection of PHI that apply to
Business Associate pursuant hereto.
	 
	g.	 	Make available all records, books, agreements, policies, procedures, and internal practices
relating to the use and/or disclosure of PHI to the United States Secretary of Health and
Human Services for purposes of determining FMCNA’s compliance with HIPAA, subject to
attorney-client and other applicable legal privileges.
	 
	h.	 	Upon prior written request, make available to FMCNA during normal business hours at
Business Associate’s offices all records, books, agreements, policies and procedures, and
internal practices relating to the use and/or disclosure of PHI within three (3) days for
purposes of enabling FMCNA to determine Business Associate’s compliance with the terms of this
Agreement.
	 
	i.	 	Upon termination of the Agreement, where feasible, destroy or return to FMCNA within
thirty (30) days all PHI received from, or created, received, maintained or transmitted by
Business Associate on behalf of FMCNA. Where return or destruction is not feasible, the duties
of Business Associate under this Agreement shall be extended to protect the PHI retained by
Business Associate. Business Associate agrees to limit further uses and disclosures of the PHI
retained to those purposes that made the return or destruction infeasible.
	 
	j.	 	Disclose to its subcontractors, agents or other third parties, and request from FMCNA,
only the minimum PHI necessary to perform or fulfill a specific function required or permitted
hereunder.
	 
	k.	 	Notify FMCNA within two (2) business days if an Individual (FMCNA patient or the
patient’s legal representative) wishes to assert his or her right of access to obtain a
copy of PHI as set forth in 45 C.F.R. § 164.524.
	 
	l.	 	At the request of FMCNA, and in the time and manner specified by FMCNA, provide access to
PHI contained in a Designated Record Set to an Individual in accordance with the terms and
provisions of 45 C.F.R. § 164.524. FMCNA’s determination of what constitutes PHI or a
Designated Record Set shall be final and conclusive.
	 
	m.	 	Notify FMCNA within two (2) business days if an Individual (FMCNA patient or the
patient’s legal representative) wishes to assert his or her right to amend PHI or amend a
record in a Designated Record Set as set forth in 45 C.F.R. § 164.526.
	 
	n.	 	Make any amendment(s) to an Individual’s PHI contained in a Designated Record Set that
FMCNA directs or agrees to pursuant to 45 C.F.R. § 164.526 and in the time and manner directed
by FMCNA. FMCNA’s determination of what PHI is subject to amendment pursuant to 45 C.F.R. §
164.526 shall be final and conclusive.
	 
	o.	 	Notify FMCNA within two (2) business days if an Individual (FMCNA patient or the patient’s
legal representative) wishes to assert his or her right to receive an accounting of
disclosures of PHI as set forth in 45 C.F.R. § 164.528.
	 
	p.	 	Document any disclosures of PHI that would be required for FMCNA to respond to a request by
an Individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. § 164.528.
Business Associate agrees to provide to FMCNA, in a time and




Page 2 of 3









 













	 	 	manner designated by FMCNA, the information collected in accordance with this paragraph to
permit FMCNA respond to a request by an Individual for an accounting of disclosures
pursuant to 45 C.F.R. § 164.528.
	 
	q.	 	Report in writing, within two (2) days, to FMCNA any Security Incident (as defined
in 45 C.F.R. § 164.304) of which Business Associate becomes aware. However, the obligation
to report a Security Incident shall not include immaterial incidents, such as unsuccessful
attempts to penetrate Business Associate’s information system.




2. Termination. Notwithstanding anything in the Agreement to the contrary, a breach of these
Business Associate Terms and Conditions shall be considered a material breach of the Agreement
entitling FMCNA to terminate the Agreement. FMCNA may, however, provide an opportunity for Business
Associate to cure such breach of these Business Associate terms and conditions within ten (10)
calendar days of such breach. If neither termination nor cure is feasible, FMCNA shall report the
violation to the Secretary.




3. Representations of the Parties





	 	 	 	Each Party represents to the other Party:






	 	a.	 	That it is duly authorized, validly existing, and in good standing
under the laws of the jurisdiction(s) in which it is organized or licensed, it
has the full power to enter into this Agreement and to perform its obligations
described in this Agreement, that the performance by it of its obligations under
this Agreement have been duly authorized by all necessary corporate or other
actions, and that such performance will not violate any provision of any
organizational charter or bylaws.
	 
	 	b.	 	That it will reasonably cooperate with the other Party in the
performance of its obligations under this Agreement.





4. Miscellaneous





	 	a.	 	If the Privacy or Security Rules are modified in any way impacting the Agreement,
FMCNA and Business Associate shall, prior to the compliance date for such modifications,
amend the Business Associate Terms and Conditions, as appropriate, to ensure compliance
with such modifications.
	 
	 	b.	 	A reference in these Business Associate Terms and Conditions to the Privacy or
Security Rules means the section in effect or as amended.
	 
	 	c.	 	In the event of a conflict between these Business Associate Terms and Conditions and
any other terms and conditions of the Agreement, the terms and conditions of these
Business Associate Terms and Conditions shall control.






Page 3 of 3









 








EXHIBIT K




to




FOURTH AMENDED AND RESTATED




TRANSFER AND ADMINISTRATION AGREEMENT




FORMS OF OPINIONS OF COUNSEL





 









 







October 16, 2008


Giro Balanced Funding Corporation

c/o Global Securitization Services

114 West 47th Street, Suite 1715

New York, NY 10036


Paradigm Funding LLC

c/o WestLB AG, New York Branch

1211 Avenue of the Americas

New York, NY 10036


Liberty Street Funding Corp.

c/o Global Securitization Services, LLC

114 West 47th Street, Suite 1715

New York, NY 10036


WestLB AG, New York Branch, as Administrative Agent and as Agent

1211 Avenue of the Americas

New York, NY 10036


Bayerische Landesbank, New York Branch, as Administrative Agent

560 Lexington Avenue

New York, New York 10022


The Bank of Nova Scotia, as Administrative Agent

One Liberty Plaza

New York, NY 10006


Each of the “Bank Investors”

(as defined in the Fourth Amended and Restated Transfer and

Administration Agreement described in this letter)


Arent Fox PLLC

1050 Connecticut Avenue, N.W.


Washington, D.C. 20036-5339


RE:      Fresenius Medical Care Holdings, Inc., National Medical Care, Inc. and NMC
Funding Corporation — Fourth Amended and Restated Transfer and Administration Agreement


Ladies and Gentlemen



     I have acted as counsel to Fresenius Medical Care Holdings, Inc., a New York corporation
(“FMCH”), and National Medical Care, Inc., a Delaware corporation (“NMC”), in connection with (a)
the Amended and Restated Receivables Purchase Agreement dated as of
October 16, 2008 between NMC, as


	 	 	 	 	 	 	 
	Fresenius Medical Care North America	 	 	 	 
	Corporate Headquarters:
	 	920 Winter Street
	 	Waltham, MA 02451
	 	(781) 699-9000





 








 





October 16, 2008

Page 2



seller, and NMC Funding Corporation (the “Transferor”), as purchaser (the “Amended Receivables
Purchase Agreement”), (b) the Fourth Amended and Restated Transfer and Administration Agreement
(“TAA”) dated as of October 16, 2008 among the Transferor, NMC as initial Collection Agent,
Paradigm Funding LLC (“Paradigm”), Giro Balanced Funding Corporation (“GBFC”), Liberty Street
Funding Corp. (“Liberty Street”), the Bank Investors listed in such agreement, Bayerische
Landesbank, Cayman Islands Branch (“BayernLB”), The Bank of Nova Scotia (“Scotiabank”), and WestLB
AG, New York Branch (“WestLB”), as Administrative Agent and as Agent (the “Agent”) for the benefit
of the Investors, (c) the Amended and Restated Parent Agreement
dated as of October 16, 2008 among
FMCH and Fresenius Medical Care AG & Co. KGaA, a partnership limited by shares organized and
existing under the laws of the Federal Republic of Germany (“FME KGaA”) in favor of the Transferor,
and the Agent (the “Amended Parent Agreement”), (d) the Amended and Restated Transferring Affiliate
Letter dated as of October 16, 2008, executed by each of the Transferring Affiliates and
acknowledged and accepted by NMC as Seller, the Transferor, as Purchaser, and the Agent (the
“Amended Transferring Affiliate Letter”), and (e) the Fourth Amended and Restated Investor Fee
Letter dated October 16, 2008 among the Transferor, WestLB, BayernLB, and Scotiabank (the “Amended
Investor Fee Letter”). I have also acted as counsel to (x) each of the corporations and other
entities listed on Schedule I to this letter (each, a “Transferring Affiliate”, and
collectively, the “Transferring Affiliates” and together with FMCH, NMC and the Transferor, the
“Parent Group Members”) and (y) for the limited purpose of rendering the opinion set forth in
Section 9(g) hereof, FME KGaA. The Amended Receivables Purchase Agreement, the TAA, the Amended
Parent Agreement, the Amended Transferring Affiliate Letter, and the Amended Investor Fee Letter
together with each of the other instruments and agreements listed on Schedule II hereto are
collectively referred to herein as the “Transaction Documents.” I am a Deputy General Counsel, Vice
President and the Assistant Secretary of FMCH. Capitalized terms not defined herein have the
meanings assigned to them in the Transaction Documents, except as otherwise indicated herein.




     I have examined and relied upon such corporate records and certificates of officers of the
Parent Group Members, certificates of public officials and the representations and warranties of
the Parent Group Members in the relevant Transaction Documents, and have made such examination of
law as I deemed relevant to the opinions set forth herein. Based upon the above, and subject to the
qualifications set forth below, it is my opinion that:



1. Organization, Existence and Good Standing.




     (a) FMCH is a corporation duly formed, validly existing and in good standing under the laws of
the State of New York, and is duly qualified and in good standing in each other state in which the
nature of the business it conducts or the assets it owns or leases requires such qualification and
in which the failure to be so qualified would have a Material Adverse Effect on its business or
operations.



     (b) NMC is a corporation duly formed, validly existing and in good standing under the laws of
the State of Delaware, and is duly qualified and in good standing in each other state in which the
nature of the business it conducts or the assets it owns or leases requires such qualification and
in which the failure to be so qualified would have a Material Adverse Effect on its business or
operations.



     (c) Each Transferring Affiliate is a corporation, limited liability company, limited
partnership or limited liability partnership, as the case may be, duly formed, validly existing and
in good standing under the laws of the state of its incorporation or organization, and is duly
qualified and in good standing in each other state in which the nature of the business it conducts
or the assets it owns or leases requires such qualification and in which the failure to be in good
standing or so qualified would have a Material Adverse Effect on the business or operations of such
Transferring Affiliate.



 









 





October 16, 2008

Page 3




2. Power and Authority.




     (a) FMCH has the requisite corporate power and authority to execute and deliver, and to
perform its obligations under, each of the Transaction Documents to which it is a party.



     (b) NMC has the requisite corporate power and authority to execute and deliver, and to
perform its obligations under, each of the Transaction Documents to which it is a party.



     (c) Each Transferring Affiliate has the requisite power and authority to execute and deliver,
and to perform its obligations under, each of the Transaction Documents to which it is a party.



3. Due Authorization.




     (a) The execution, delivery and performance of the Transaction Documents, to which it is a
party, by NMC have been duly authorized by all necessary corporate action of NMC.



     (b) The execution, delivery and performance of the Transaction Documents, to which it is a
party, by each Transferring Affiliate have been duly authorized by all necessary action of each
Transferring Affiliate.



4. No Violation of Organic Documents.




     (a) NMC’s execution and delivery of, and its performance of its obligations under, the
Transaction Documents to which it is a party will not violate its charter or by-laws.



     (b) Each Transferring Affiliate’s execution and delivery of, and its performance of its
obligations under, the Transaction Documents to which it is a party will not violate its charter,
by-laws or other organizational documents.



5. Due Execution and Delivery; Validity; Binding Effect and General Enforceability




     (a) NMC has duly executed and delivered each of the Transaction Documents to which it is a
party.



     (b) Each Transferring Affiliate has duly executed and delivered each of the Transaction
Documents to which it is a party.



     (c) Assuming that the transactions contemplated by the Transaction Documents bear a reasonable
relationship to the State of New York, in any action or proceeding arising out of or relating to
any Transaction Document in any court of The Commonwealth of Massachusetts or in any federal court
sitting in The Commonwealth of Massachusetts, such court should recognize and give effect to the
provisions thereof wherein the parties agree that such Transaction Document shall be governed by,
and construed in accordance with, the laws of the State of New York. However, in the event that any
such court shall determine that any of the Transaction Documents are governed by the laws of The
Commonwealth of Massachusetts, each of the Transaction Documents constitutes the legal and valid
obligation of, and is binding on and enforceable against, each of the Parent Group Members parties
thereto.



 









 





October 16, 2008

Page 4



6. General Qualifications. The opinions set forth in Section 5 are subject to the
following qualifications:




     (a) The enforceability of the Transaction Documents may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws or other equitable principles
relating to or affecting the rights of creditors or other obligees generally.



     (b) The enforceability of the Transaction Documents may be limited by applicable principles of
equity, whether such principles are applied by a court of equity or a court of law, and I express
no opinion on whether a court would grant specific performance, injunctive relief or any other
equitable remedy.



     (c) The provisions regarding the remedies available to the Agent on default as set forth in
the Transaction Documents may be subject to certain procedural requirements that are not expressly
stated in the Transaction Documents, but neither the existence of these procedural requirements nor
the failure to specify them in the Transaction Documents make the remedies unenforceable.



     (d) A court could refuse to permit the Agent to foreclose any security interest in favor of
the Agent or enforce the Agent’s remedies under the Transaction Documents by reason of (i) a waiver
by the Agent, (ii) unconscionable conduct by the Agent, (iii) the exercise of remedies by the Agent
without providing adequate notice to FMCH, NMC or any of the Transferring Affiliates, as applicable
of the default and a reasonable opportunity to cure the default, (iv) the court’s determination
that FMCH, NMC or any of the Transferring Affiliates, as applicable are entitled to an opportunity
to be heard by the court before the Agent is entitled to exercise any remedies, (v) the court’s
determination that a remedy is a penalty or is unconscionable, (vi) the court’s determination that
the Agent is seeking to exercise remedies with respect to a breach that is immaterial or that does
not adversely affect the Agent or the Agent’s security, (vii) defenses arising from the Agent’s
failure to act in accordance with the terms and conditions of the Transaction Documents, (viii)
defenses arising as a consequence of the passage of time (e.g., laches or statutes of limitation),
(ix) defenses arising as a result of the Agent’s failure to act in a commercially reasonable manner
or in good faith or (x) public policy considerations.



     (e) I express no opinion with respect to any of the following provisions if they are contained
in any of the Transaction Documents: (i) self-help, non-judicial remedies or provisions purporting
to grant a right of possession without resort to judicial action to the extent inconsistent with
the Uniform Commercial Code or other applicable law; (ii) any provisions that entitle the Agent, as
a matter of right, to the appointment of a receiver; (iii) any provisions imposing penalties,
forfeitures, increased interest/discount rates and/or late payment charges upon delinquency in
payment or the occurrence of a default; (iv) any provisions under which FMCH, NMC or any of the
Transferring Affiliates, as applicable, waive any of its legal or equitable rights except to the
extent the waived rights are expressly waivable pursuant to a statute or constitution provision;
(v) any provisions entitling the Agent to obtain reimbursement for attorneys’ fees and other costs
incurred by the Agent; (vi) any provision permitting the Agent to accelerate the Obligations or
exercise any remedies in the event of a transfer or encumbrancing of an immaterial portion of any
collateral or immaterial changes in the beneficial ownership of FMCH, NMC or any of the
Transferring Affiliates, as applicable; (vii) any provision exonerating or indemnifying the Agent
(or any agent or employee of the Agent or any party acting on behalf of the Agent) from the
consequences of its own acts or omissions; (viii) any severability provision; (ix) provisions
relating to setoff rights; (x) any provision granting a power of attorney or similar right; (xi)
any provision to the effect that rights or remedies are not exclusive, that every right or remedy
is cumulative and may be exercised in addition to or with any other right or remedy or that the
election of a particular remedy does



 









 





October 16, 2008

Page 5



not preclude recourse to one or more other remedies; (xii) any provision pursuant to which a party
has granted to another party any power to execute documents, settle claims or appear in judicial
proceedings on behalf of such party or to take any other action on behalf of such party; (xiii) any
provision which purports to affect jurisdiction or venue of any specified court or which purports
to establish evidentiary standards, or which waives trial by jury; (xiv) choice of law provision
(except as discussed in Section 5 above); (xv) any provision by which any party agrees to take
action if that party’s ability to take the action in question is subject to conditions another
party to the Transaction Documents controls; or (xvi) any provision that purports to grant the
Agent relief from any provisions of the Bankruptcy Code.




7. No Violations of Other Contracts.




     (a) NMC’s execution, delivery and performance of the Transaction Documents to which it is a
party will not breach any Other Contract.



     (b) Each Transferring Affiliate’s execution, delivery and performance of the Transaction
Documents to which it is a party will not breach any Other Contract.



     (c) For purposes of this section, the term “Other Contract” means an indenture, mortgage, deed
of trust, loan agreement, or other material agreement or instrument of which I have knowledge, to
which, to the best of my knowledge, FMCH, NMC or any Transferring Affiliate is a party.



8. No Violations of Applicable Laws.




     (a) To the best of my knowledge, NMC’s execution, delivery and performance of the
Transaction Documents to which it is a party will not violate any Applicable Law.



     (b) To the best of my knowledge, the Transferor’s and each Transferring Affiliate’s execution,
delivery and performance of the Transaction Documents to which it is a party will not violate any
Applicable Law.



     (c) For purposes of this paragraph, the term Applicable Law means, subject to the following
sentences, any provision of federal or Massachusetts law or regulation or Delaware General
Corporation Law that is generally applicable to organizations such as FMCH, NMC or any Transferring
Affiliate or that relates to transactions of this type. The term Applicable Law excludes federal
and state securities and blue-sky laws, tax laws, healthcare laws and related rules and
regulations.



9. No Violations of Court Decrees or Orders and other Matters.




     (a) NMC’s execution, delivery and performance of the Transaction Documents to which it is a
party will not violate any Court Decree or Order.



     (b) Each Transferring Affiliate’s execution, delivery and performance of the Transaction
Documents to which it is a party will not violate any Court Decree or Order.



     (c) For purposes of this paragraph, the term Court Decree or Order means a decree, order or
other official action of any court or other governmental body that is, to the best of my knowledge,
specifically applicable to FMCH, NMC or any Transferring Affiliate as a named party.



 









 





October 16, 2008

Page 6




     (d) The execution, delivery and performance by each Parent Group Member of the Transaction
Documents to which it is named as a party (a) to the best of my knowledge, does not result in or
require the creation of any lien, security interest or other charge or encumbrance upon or with
respect to any of such Person’s properties (except as may be specifically contemplated in the
Transaction Documents) and (b) does not require compliance with any bulk sales act or similar law.



     (e) To the best of my knowledge, no authorization, approval, consent or other action by, and
no notice to or filing with, any governmental authority or regulatory body is required for the due
execution, delivery and performance by any Parent Group Member of any Transaction Document to which
it is named as a party.



     (f) To the best of my knowledge, there are no actions, suits, orders, decrees, investigations,
or other proceedings pending or threatened at law, in equity, in arbitration or before any
governmental agency, commission or official against or affecting any Parent Group Member or FME
KGaA which challenges or affects the legality, validity or enforceability of any Transaction
Document or, except as otherwise disclosed in Exhibit A attached hereto, which would
otherwise be reasonably likely to have a Material Adverse Effect.



     (g) To the best of my knowledge and belief there are no governmental authorization, approvals,
orders, licenses, certificates, franchises or permits of and from any governmental regulatory
officials and bodies, that are necessary in order for any Parent Group Member to own its respective
properties and to conduct its respective businesses as now being conducted, which have not been
obtained, except where the failure to have so obtained any such authorization, approvals, orders,
licenses, certificates franchises or permits, individually or in the aggregate, would not have a
Material Adverse Effect.


10. Investment Company Act. Neither FMCH, NMC, the Transferor nor any Transferring Affiliate is or
is controlled by an “investment company” within the meaning of the Investment Company Act of 1940,
as amended, and therefore none of them is subject to registration as an “investment company.”



11. Public Utility Holding Company Act. Neither FMCH, NMC, the Transferor nor any Transferring
Affiliate is a “holding company” within the meaning of the Public Utility Holding Company Act of
1935, as amended.



12. The execution, delivery and performance of the TAA and the Amended Transferring Affiliate
Letter (collectively, the “Amendments”) would not cause me to modify any of the opinions or legal
conclusions set forth in my opinion dated October 23, 2003 (the
“Original Opinion”), a copy of
which is attached hereto as Exhibit B. Subject to all applicable assumptions, limitations
and qualifications set forth in the Original Opinion and in this opinion, I hereby reaffirm such
opinions and legal conclusions as of the date hereof, both before and after giving effect to the
Amendments.



The foregoing opinion is subject in its entirety to the following qualifications:




     The opinions expressed in this letter are solely for the use of the Agent, the Conduit
Investors, the Administrative Agents, and the Bank Investors and their permitted assignees and
participants, and their legal counsel. These opinions may not be relied on by any other persons,
may not be quoted in whole or in part, and may not be filed with any governmental agency, in each
case without my express prior written approval; provided that these opinions may be disclosed to,
and relied upon by, any rating agency then



 









 





October 16,
2008

Page 7



rating obligations of Paradigm, GBFC, Liberty Street, the Related CP Issuer, any Credit Support
Provider, any Liquidity Provider and Arent Fox PLLC.




     The opinions expressed in this letter are rendered as of the date hereof and I express no
opinion as to circumstances or events that may occur in the future. The opinions expressed in this
letter are limited to the matters set forth in this letter, and no other opinions should be
inferred beyond the matters expressly stated.



     This opinion is based and relies upon the current status of the laws of The Commonwealth of
Massachusetts and the United States, and the General Corporation Law of the State of Delaware and
in all respects this opinion is subject to and may be limited by amendments or other changes in
such laws, rules and regulations, and any future laws, rules and regulations, as well as by
developing case law.



[Signature page to follow]




 









 





October 16, 2008

Page 8




     I have relied without investigation on certificates and other communications from public
officials as to matters of fact. I have executed and delivered this opinion in my capacity as an
officer of Fresenius Medical Care Holdings, Inc.


Very truly yours,





Douglas G. Kott

Vice President, Assistant Secretary and

Deputy General Counsel





 











 





SCHEDULE I




LIST OF TRANSFERRING AFFILIATES




	 	 	 
	Chief Executive Office for each

	 	920 Winter Street
	Transferring Affiliate:

	 	Waltham, Massachusetts 02451






	 	 	 	 	 	 	 
	 	 	State of	 	 	 
	Transferring Affiliates	 	Incorporation	 	FEIN	 
	Angleton Dialysis, Inc.
	 	Texas	 	 	*	 
	Bio-Medical Applications Home Dialysis Services, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications Management Company, Inc
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Aguadilla, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Alabama, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Anacostia, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Arecibo, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Arkansas, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Bayamon, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Blue Springs, Inc
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Caguas, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of California, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Camarillo, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Capitol Hill, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Carolina, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Carson, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Clinton, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Columbia Heights, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Connecticut, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Delaware, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Dover, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Eureka, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Fayetteville, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Florida, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Fremont, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Fresno, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Georgia, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Glendora, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Guayama, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Hoboken, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Humacao, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Illinois, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Indiana, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Kansas, Inc.
	 	Delaware	 	 	*	 






 









 





	 	 	 	 	 	 	 
	 	 	State of	 	 	 
	Transferring Affiliates	 	Incorporation	 	FEIN	 
	Bio-Medical Applications of Kentucky, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Las Americas, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Long Beach, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Los Gatos, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Louisiana, LLC
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Maine, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Manchester, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Maryland, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Massachusetts, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Mayaguez, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Michigan, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Minnesota, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Mission Hills, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Mississippi, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Missouri, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of MLK, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Nevada, Inc
	 	Nevada	 	 	*	 
	Bio-Medical Applications of New Hampshire, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of New Jersey, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of New Mexico, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of North Carolina, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Northeast, D.C., Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Oakland, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Ohio, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Oklahoma, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Pennsylvania, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Ponce, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Puerto Rico, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Rhode Island, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Rio Piedras, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of San Antonio, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of San German, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of San Juan, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of South Carolina, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Southeast Washington, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Tennessee, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Texas, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical
Applications of The District of Columbia, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Ukiah, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Virginia, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of West Virginia, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Wisconsin, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Woonsocket, Inc.
	 	Delaware	 	 	*	 
	Brazoria Kidney Center, Inc.
	 	Texas	 	 	*	 






 









 






	 	 	 	 	 	 	 
	 	 	State of	 	 	 
	Transferring Affiliates	 	Incorporation	 	FEIN	 
	Conejo Valley Dialysis, Inc.
	 	California	 	 	*	 
	Con-Med Supply Company, Inc.
	 	Illinois	 	 	*	 
	Diabetes Care Group, Inc.
	 	Delaware	 	 	*	 
	Dialysis America Alabama, LLC
	 	Delaware	 	 	*	 
	Dialysis America Georgia, LLC
	 	Delaware	 	 	*	 
	Dialysis Associates of Northern New Jersey, L.L.C.
	 	New Jersey	 	 	*	 
	Dialysis Centers of America — Illinois, Inc.
	 	Illinois	 	 	*	 
	Dialysis Licensing Corp.
	 	Delaware	 	 	*	 
	Dialysis Management Corporation
	 	Texas	 	 	*	 
	Dialysis Services of Atlanta, Inc.
	 	Georgia	 	 	*	 
	Dialysis Services of Cincinnati, Inc.
	 	Ohio	 	 	*	 
	Dialysis Services, Inc.
	 	Texas	 	 	*	 
	Dialysis Specialists of Topeka, Inc.
	 	Kansas	 	 	*	 
	Dialysis Specialists of Tulsa, Inc.
	 	Oklahoma	 	 	*	 
	Du Page Dialysis, Ltd.
	 	Illinois	 	 	*	 
	Everest Healthcare Holdings, Inc.
	 	Delaware	 	 	*	 
	Everest Healthcare Indiana, Inc.
	 	Indiana	 	 	*	 
	Everest Healthcare Ohio, Inc.
	 	Ohio	 	 	*	 
	Everest Healthcare Rhode Island, Inc.
	 	Delaware	 	 	*	 
	Everest Healthcare Texas Holding Corp
	 	Delaware	 	 	*	 
	Everest Healthcare Texas, L.P.
	 	Delaware	 	 	*	 
	Everest Management, Inc.
	 	Delaware	 	 	*	 
	FMS New York, Inc.
	 	Delaware	 	 	*	 
	Fondren Dialysis Clinic, Inc.
	 	Texas	 	 	*	 
	Fort Scott Regional Dialysis Center, Inc.
	 	Missouri	 	 	*	 
	Four State Regional Dialysis Center, Inc.
	 	Missouri	 	 	*	 
	Fresenius Management Services, Inc.
	 	Delaware	 	 	*	 
	Fresenius Medical Care Dialysis Services — Oregon, LLC
	 	Oregon	 	 	*	 
	Fresenius Medical Care Dialysis Services Colorado LLC
	 	Delaware	 	 	*	 
	Fresenius USA Home Dialysis, Inc.
	 	Delaware	 	 	*	 
	Fresenius USA Marketing, Inc.
	 	Delaware	 	 	*	 
	Fresenius USA Sales, Inc.
	 	Massachusetts	 	 	*	 
	Fresenius USA, Inc.
	 	Massachusetts	 	 	*	 
	Gulf Region Mobile Dialysis, Inc.
	 	Delaware	 	 	*	 
	Haemo-Stat, Inc.
	 	California	 	 	*	 
	Henry Dialysis Center, LLC
	 	Georgia	 	 	*	 
	Holton Dialysis Clinic, LLC
	 	Georgia	 	 	*	 
	Home Dialysis of America, Inc.
	 	Arizona	 	 	*	 
	Home Dialysis of Muhlenberg County, Inc.
	 	Kentucky	 	 	*	 
	Home Intensive Care, Inc.
	 	Delaware	 	 	*	 
	Jefferson County Dialysis, Inc.
	 	Arkansas	 	 	*	 
	KDCO, Inc.
	 	Missouri	 	 	*	 
	Kentucky Renal Care Group, LLC
	 	Delaware	 	 	*	 
	Lawton Dialysis, Inc.
	 	Arkansas	 	 	*	 






 









 






	 	 	 	 	 	 	 
	 	 	State of	 	 	 
	Transferring Affiliates	 	Incorporation	 	FEIN	 
	Little Rock Dialysis, Inc.
	 	Arkansas	 	 	*	 
	Maumee Dialysis Services, LLC
	 	Delaware	 	 	*	 
	Mercy Dialysis Center, Inc.
	 	Wisconsin	 	 	*	 
	Miami Regional Dialysis Center, Inc.
	 	Missouri	 	 	*	 
	Michigan Home Dialysis Center, Inc.
	 	Michigan	 	 	*	 
	Naples Dialysis Center, LLC
	 	Florida	 	 	*	 
	National Medical Care, Inc
	 	Delaware	 	 	*	 
	National Nephrology Associates Management
Company of Texas, Inc.
	 	Texas	 	 	*	 
	National Nephrology Associates of Texas, L.P.
	 	Texas	 	 	*	 
	Neomedica, Inc
	 	Delaware	 	 	*	 
	NNA Management Company of Kentucky, Inc.
	 	Kentucky	 	 	*	 
	NNA Management Company of Louisiana, Inc.
	 	Louisiana	 	 	*	 
	NNA of
Alabama, Inc.
	 	Alabama	 	 	*	 
	NNA of East Orange, L.L.C.
	 	New Jersey	 	 	*	 
	NNA of Florida, LLC
	 	Florida	 	 	*	 
	NNA of Georgia, Inc.
	 	Delaware	 	 	*	 
	NNA of Harrison, L.L.C.
	 	New Jersey	 	 	*	 
	NNA of Louisiana, LLC
	 	Louisiana	 	 	*	 
	NNA of Memphis, LLC
	 	Tennessee	 	 	*	 
	NNA of Nevada, Inc.
	 	Nevada	 	 	*	 
	NNA of Newark, L.L.C.
	 	New Jersey	 	 	*	 
	NNA of Oklahoma, Inc.
	 	Nevada	 	 	*	 
	NNA of Oklahoma, L.L.C.
	 	Oklahoma	 	 	*	 
	NNA of Rhode Island, Inc.
	 	Rhode Island	 	 	*	 
	NNA of Toledo, Inc.
	 	Ohio	 	 	*	 
	NNA Properties of Tennessee, Inc.
	 	Tennessee	 	 	*	 
	NNA Transportation Services Corporation
	 	Tennessee	 	 	*	 
	NNA-Saint Barnabas, L.L.C.
	 	New Jersey	 	 	*	 
	NNA-Saint Barnabas-Livingston, L.L.C.
	 	New Jersey	 	 	*	 
	Norcross Dialysis Center, LLC
	 	Georgia	 	 	*	 
	North Buckner Dialysis Center, Inc.
	 	Delaware	 	 	*	 
	Northeast Alabama Kidney Clinic, Inc.
	 	Alabama	 	 	*	 
	Northern New Jersey Dialysis, L.L.C.
	 	Delaware	 	 	*	 
	Northwest Dialysis, Inc.
	 	Arkansas	 	 	*	 
	Physicians Dialysis Company, Inc.
	 	Pennsylvania	 	 	*	 
	Qualicenters, Inc.
	 	Colorado	 	 	*	 
	RCG Arlington Heights, LLC
	 	Delaware	 	 	*	 
	RCG Bloomington, LLC
	 	Delaware	 	 	*	 
	RCG Credit Corporation
	 	Tennessee	 	 	*	 
	RCG East Texas, LLP
	 	Delaware	 	 	*	 
	RCG Finance, Inc.
	 	Delaware	 	 	*	 
	RCG Indiana, L.L.C.
	 	Delaware	 	 	*	 
	RCG Irving, LLP
	 	Delaware	 	 	*	 






 









 






	 	 	 	 	 	 	 
	 	 	State of	 	 	 
	Transferring Affiliates	 	Incorporation	 	FEIN	 
	RCG Marion, LLC
	 	Delaware	 	 	*	 
	RCG Martin, LLC
	 	Delaware	 	 	*	 
	RCG Memphis East, LLC
	 	Delaware	 	 	*	 
	RCG Memphis, LLC
	 	Delaware	 	 	*	 
	RCG Mississippi, Inc.
	 	Delaware	 	 	*	 
	RCG PA Merger Corp.
	 	Texas	 	 	*	 
	RCG University Division, Inc.
	 	Tennessee	 	 	*	 
	RCG West Health Supply, L.C.
	 	Arizona	 	 	*	 
	RCG Whitehaven, LLC
	 	Delaware	 	 	*	 
	RCG/Saint Luke’s, LLC
	 	Delaware	 	 	*	 
	RCGIH, Inc.
	 	Delaware	 	 	*	 
	Renal Care Group Alaska, Inc.
	 	Alaska	 	 	*	 
	Renal Care Group Central Memphis, LLC
	 	Delaware	 	 	*	 
	Renal Care Group East, Inc.
	 	Pennsylvania	 	 	*	 
	Renal Care Group Michigan, Inc.
	 	Delaware	 	 	*	 
	Renal Care Group Northwest, Inc.
	 	Delaware	 	 	*	 
	Renal Care Group of the Midwest, Inc.
	 	Kansas	 	 	*	 
	Renal Care Group of the Ozarks, LLC
	 	Delaware	 	 	*	 
	Renal Care Group of the South, Inc.
	 	Delaware	 	 	*	 
	Renal Care Group of the Southeast, Inc.
	 	Florida	 	 	*	 
	Renal Care Group Ohio, Inc.
	 	Delaware	 	 	*	 
	Renal Care Group South New Mexico, LLC
	 	Delaware	 	 	*	 
	Renal Care Group Southwest Holdings, Inc.
	 	Delaware	 	 	*	 
	Renal Care Group Southwest, L.P.
	 	Delaware	 	 	*	 
	Renal Care Group Texas, Inc.
	 	Texas	 	 	*	 
	Renal Care Group Texas, LP
	 	Delaware	 	 	*	 
	Renal Care Group Westlake, LLC
	 	Delaware	 	 	*	 
	Renal Care Group, Inc.
	 	Delaware	 	 	*	 
	RenalNet Arizona, Inc.
	 	Arizona	 	 	*	 
	RenalNet, Inc.
	 	Delaware	 	 	*	 
	RenalPartners of Indiana, LLC
	 	Indiana	 	 	*	 
	RenalPartners, Inc.
	 	Delaware	 	 	*	 
	Renex Corp.
	 	Florida	 	 	*	 
	Renex Dialysis Clinic of Amesbury, Inc.
	 	Massachusetts	 	 	*	 
	Renex Dialysis Clinic of Bloomfield, Inc.
	 	New Jersey	 	 	*	 
	Renex Dialysis Clinic of Bridgeton, Inc.
	 	Missouri	 	 	*	 
	Renex Dialysis Clinic of Creve Coeur, Inc.
	 	Missouri	 	 	*	 
	Renex Dialysis Clinic of Doylestown, Inc.
	 	Pennsylvania	 	 	*	 
	Renex Dialysis Clinic of Maplewood, Inc.
	 	Missouri	 	 	*	 
	Renex Dialysis Clinic of North Andover, Inc.
	 	Massachusetts	 	 	*	 
	Renex Dialysis Clinic of Orange, Inc.
	 	New Jersey	 	 	*	 
	Renex Dialysis Clinic of Penn Hills, Inc.
	 	Pennsylvania	 	 	*	 
	Renex Dialysis Clinic of Philadelphia, Inc.
	 	Pennsylvania	 	 	*	 
	Renex Dialysis Clinic of Pittsburgh, Inc.
	 	Pennsylvania	 	 	*	 






 









 






	 	 	 	 	 	 	 
	 	 	State of	 	 	 
	Transferring Affiliates	 	Incorporation	 	FEIN	 
	Renex Dialysis Clinic of Shaler, Inc.
	 	Pennsylvania	 	 	*	 
	Renex Dialysis Clinic of South Georgia, Inc.
	 	Georgia	 	 	*	 
	Renex Dialysis Clinic of St. Louis, Inc.
	 	Missouri	 	 	*	 
	Renex Dialysis Clinic of Tampa, Inc.
	 	Florida	 	 	*	 
	Renex Dialysis Clinic of Union, Inc.
	 	Missouri	 	 	*	 
	Renex Dialysis Clinic of University City, Inc.
	 	Missouri	 	 	*	 
	Renex Dialysis Clinic of Woodbury, Inc.
	 	NewJersey	 	 	*	 
	Renex Dialysis Facilities, Inc.
	 	Mississippi	 	 	*	 
	Renex Dialysis Homecare of Greater St. Louis, Inc.
	 	Missouri	 	 	*	 
	Renex Management Services, Inc.
	 	Florida	 	 	*	 
	San Diego Dialysis Services, Inc.
	 	Delaware	 	 	*	 
	Santa Barbara Community Dialysis Center, Inc.
	 	California	 	 	*	 
	Smyrna Dialysis Center, LLC
	 	Georgia	 	 	*	 
	Spectra East, Inc.
	 	Delaware	 	 	*	 
	Spectra Laboratories, Inc.
	 	Nevada	 	 	*	 
	SSKG, Inc.
	 	Illinois	 	 	*	 
	STAT Dialysis Corporation
	 	Delaware	 	 	*	 
	Stone Mountain Dialysis Center, LLC
	 	Georgia	 	 	*	 
	Stuttgart Dialysis, LLC
	 	Arkansas	 	 	*	 
	Terrell Dialysis Center, L.L.C.
	 	Delaware	 	 	*	 
	Three Rivers Dialysis Services, LLC
	 	Delaware	 	 	*	 
	West Palm Dialysis, LLC
	 	Virginia	 	 	*	 
	Wharton Dialysis, Inc.
	 	Texas	 	 	*	 
	WSKC Dialysis Services, Inc.
	 	Illinois	 	 	*	 






 









 






Schedule II





	1.	 	Amendment Agreement.
	 
	2.	 	Fourth Amended and Restated Transfer and Administration Agreement.
	 
	3.	 	Amended and Restated Parent Agreement, relating to changes in financial covenants and transfer of rights of Agent to WestLB.
	 
	4.	 	Amended and Restated Receivables Purchase Agreement.
	 
	5.	 	Amended and Restated Transferring Affiliate Letter.
	 
	6.	 	Opinion of Douglas G. Kott.
	 
	7.	 	Opinion of Arent Fox Kintner Plotkin & Kahn relating to corporate, UCC and other matters.
	 
	8.	 	True sale and non-consolidation opinion of Arent Fox Kintner Plotkin & Kahn.
	 
	9.	 	Opinion of German counsel.
	 
	10.	 	Certificate of the Secretary of the Transferor.
	 
	11.	 	Certificate of the Secretary of the Collection Agent.
	 
	12.	 	Certificate of the Secretary of each Transferring Affiliate.
	 
	13.	 	Good Standing Certificates for the Transferor from the Secretary of the Commonwealth of Massachusetts and the Secretary of State of Delaware.
	 
	14.	 	Good Standing Certificates for the Collection Agent from the Secretary of the Commonwealth of Massachusetts and the Secretary of State of Delaware.
	 
	15.	 	Good Standing Certificates for each Transferring Affiliate from the Secretary of the Commonwealth of Massachusetts and the Secretary of State of Delaware.
	 
	16.	 	Fourth Amended and Restated Investor Fee Letter.
	 
	17.	 	Amended and Restated Agent Fee Letter.
	 
	18.	 	Amended and Restated Liquidity Asset Purchase Agreement for Paradigm Funding LLC.
	 
	19.	 	Third Amended and Restated Fee Letter (Helaba) relating to Paradigm LAPA.




 









 






	20.	 	Amended and Restated Fee Letter (WestLB) relating to Paradigm LAPA.
	 
	21.	 	Bank of America Account Control Agreements.
	 
	22.	 	UCC summary.




 









 











EXHIBIT A



The following is an excerpt from the Form 6-K filing of Fresenius Medical Care G & Co. KGaA (the
“Company”) with the Securities and Exchange Commission for the period ending June 30, 2008:




Legal Proceedings




Commercial Litigation




     The Company was originally formed as a result of a series of transactions it completed
pursuant to the Agreement and Plan of Reorganization dated as of February 4,1996, by and between
W.R. Grace & Co. and Fresenius SE (the “Merger”). At the time of the Merger, a W.R. Grace & Co.
subsidiary known as W.R. Grace & Co.-Conn. had, and continues to have, significant liabilities
arising out of product-liability related litigation (including asbestos-related actions),
pre-Merger tax claims and other claims unrelated to National Medical Care, Inc. (“NMC”), which was
W.R. Grace & Co.’s dialysis business prior to the Merger. In connection with the Merger, W.R. Grace
& Co.-Conn. agreed to indemnify the Company, FMCH, and NMC against all liabilities of W.R. Grace &
Co., whether relating to events occurring before or after the Merger, other than liabilities
arising from or relating to NMC’s operations. W.R. Grace & Co. and certain of its subsidiaries
filed for reorganization under Chapter 11 of the U.S. Bankruptcy Code (the “Grace Chapter 11
Proceedings”) on April 2, 2001.



     Prior to and after the commencement of the Grace Chapter 11 Proceedings, class action
complaints were filed against W.R. Grace & Co. and FMCH by plaintiffs claiming to be creditors of
W.R. Grace & Co.-Conn., and by the asbestos creditors’ committees on behalf of the W.R. Grace & Co.
bankruptcy estate in the Grace Chapter 11 Proceedings, alleging among other things that the Merger
was a fraudulent conveyance, violated the uniform fraudulent transfer act and constituted a
conspiracy. All such cases have been stayed and transferred to or are pending before the U.S.
District Court as part of the Grace Chapter 11 Proceedings.



     In 2003, the Company reached agreement with the asbestos creditors’ committees on behalf of
the W.R. Grace & Co. bankruptcy estate and W.R. Grace & Co. in the matters pending in the Grace
Chapter 11 Proceedings for the settlement of all fraudulent conveyance and tax claims against it
and other claims related to the Company that arise out of the bankruptcy of W.R. Grace & Co. Under
the terms of the settlement agreement as amended (the “Settlement Agreement”), fraudulent
conveyance and other claims raised on behalf of asbestos claimants will be dismissed with prejudice
and the Company will receive protection against existing and potential future W.R. Grace & Co.
related claims, including fraudulent conveyance and asbestos claims, and indemnification against
income tax claims related to the non-NMC members of the W.R. Grace & Co. consolidated tax group
upon confirmation of a W.R. Grace & Co. bankruptcy reorganization plan that contains such
provisions. Under the Settlement Agreement, the Company will pay a total of $115,000 without
interest to the W.R. Grace & Co. bankruptcy estate, or as otherwise directed by the Court, upon
plan confirmation. No admission of liability has been or will be made. The Settlement Agreement has
been approved by the U.S. District Court. Subsequent to the Merger, W.R. Grace & Co. was involved
in a multi-step transaction



1









 




involving Sealed Air Corporation (“Sealed Air,” formerly known as Grace Holding, Inc.). The Company
is engaged in litigation with Sealed Air to confirm its entitlement to indemnification from Sealed
Air for all losses and expenses incurred by the Company relating to pre-Merger tax liabilities and
Merger-related claims. Under the Settlement Agreement, upon confirmation of a plan that satisfies
the conditions of the Company’s payment obligation, this
litigation will be dismissed with prejudice.




     In April 2008, W.R. Grace & Co. announced an agreement in principle with the asbestos
creditors’ and equity security holders’ committees in the Grace Chapter 11 Proceedings to settle
all present and future asbestos-related personal injury claims. The agreement in principle and W.R.
Grace & Co.’s related bankruptcy reorganization plan are subject to conditions including resolution
of claims of other creditors and Bankruptcy Court and District Court approvals.



     On April 4, 2003, FMCH filed a suit in the U. S. District Court for the Northern District of
California, styled Fresenius USA, Inc., et al., v. Baxter International Inc., et al., Case No. C
03-1431, seeking a declaratory judgment that FMCH does not infringe on patents held by Baxter
International Inc. and its subsidiaries and affiliates (“Baxter”), that the patents are invalid,
and that Baxter is without right or authority to threaten or maintain suit against FMCH for alleged
infringement of Baxter’s patents. In general, the alleged patents concern the use of touch screen
interfaces for hemodialysis machines. Baxter filed counterclaims against FMCH seeking more than
$140,000 in monetary damages and injunctive relief, and alleging that FMCH willfully infringed on
Baxter’s patents. On July 17, 2006, a jury verdict was entered in favor of FMCH finding that all
the asserted claims of the Baxter patents are invalid as obvious and/or anticipated in light of
prior art. On February 13, 2007, the court granted Baxter’s motion to set aside the jury’s verdict
in favor of FMCH and reinstated the patents and entered judgment of infringement. Following a
retrial on damages, the court entered judgment on November 6, 2007 in favor of Baxter on a jury
award of $14,300. On April 4, 2008, the court denied Baxter’s motion for a new trial, established a
royalty payable to Baxter of 10% of the sales price for continuing sales of FMCH’s 2008K
hemodialysis machines and 7% of the sales price of related disposables, parts and service beginning
November 7, 2007, and enjoined sales of the 2008K machine effective January 1, 2009. We have
appealed the court’s rulings to the Court of Appeals for the Federal Circuit. We are confident that
we will prevail on appeal and have made no provision in our financial statements for any potential
liability in this matter. If we are unsuccessful on all appeals, including any appeal of the
royalty, the royalties payable to Baxter on the machines and disposable supplies that are subject
to the court’s order are estimated to be in the range of $2 million to $4 million per month. In the
interim period until our appeal is decided, we are funding a court-approved escrow account at the
rate noted above. If we win the appeal, the escrowed funds will be returned to us with interest. We
are pursuing design modifications to the 2008K machine that we expect will limit the scope of
royalty payment exposure and permit the continued sale of the modified 2008K machine after the
January 1, 2009 injunction effective date, irrespective of the outcome of our appeal.



     Gambro Pty Limited and Gambro Lundia AB (“Gambro AB” and, together with Gambro Pty Limited,
“the Gambro Group”) commenced litigation against FMC AG & Co. KGaA’s Australian subsidiary,
Fresenius Medical Care Australia Pty Limited (“Fresenius Medical Care Australia”) regarding
infringement and damages with respect to a Gambro AB patent protecting



2









 




intellectual property in relation to a system for preparation of dialysis or replacement fluid, the
Gambro Bicart device in Australia (the “Gambro Patent”). As a result of the commercialization of a
system for the preparation of dialysis fluid based on the Fresenius Medical Care Bibag device in
Australia, the Australian courts concluded that Fresenius Medical Care Australia infringed the
Gambro Patent. In May 2008, the Gambro Group and Fresenius Medical Care Australia and FMC AG & Co.
KGaA entered into a Deed of Settlement and Release pursuant to which Fresenius Medical Care made
certain cash payments to the Gambro Group and pursuant to which the proceedings and all claims
under the Gambro Patent, including any claims for relief for losses alleged to have been incurred
after the expiry of the Gambro Patent, were resolved.




     Two patent infringement actions have been pending in Germany between Gambro Industries
(“Gambro”) on the one side and D-GmbH and FMC AG & Co. KGaA on the other side (hereinafter
collectively “Fresenius Medical Care”). Gambro herein alleged patent infringements concerning a
patent on a device for the preparation of medical solutions by Fresenius Medical Care. The first
case was dismissed as being unfounded. Such decision has already become final. In the second case,
the District Court of Mannheim rendered a judgement on June 27, 2008 deciding in favor of Gambro
and declaring that Fresenius Medical Care has infringed a patent claim. Accordingly, the court
ordered Fresenius Medical Care to pay compensation (to be determined in a separate court
proceeding) for alleged infringement and to stop offering the alleged patent infringing technology
in its current form in Germany. Such verdict could be enforced provisionally by way of security to
be deposited by Gambro, however the Company has received no notice that Gambro has applied for
provisional enforceability, as yet. D-GmbH brought an invalidity action in the Federal German
Patent Court (“BPatG”) against Gambro’s patent. This case is currently pending with the Federal
Court of Justice as the court of appeal. Fresenius Medical Care has also filed an appeal against
the District Court’s verdict. Irrespective of the outcome of the appeal, Fresenius Medical Care
pursues to develop design modifications to the concerned devices that Fresenius Medical Care
expects will enable it to provide an alternative technical solution. In view of the pending appeal
against BPatG’s verdict and Fresenius Medical Care’s appeal against the District Court’s verdict,
Fresenius Medical Care continues to believe that the alleged patent infringing technology does not
infringe any valid patent claims of Gambro. Therefore, the Company has made no provision in the
financial statements for any potential liability in this matter.



Other Litigation and Potential Exposures




     Renal Care Group (“RCG”) was named as a nominal defendant in a second amended complaint filed
September 13, 2006 in the Chancery Court for the State of Tennessee Twentieth Judicial District at
Nashville against former officers and directors of RCG which purports to constitute a class action
and derivative action relating to alleged unlawful actions and breaches of fiduciary duty in
connection with the Company’s acquisition of RCG (the “RCG Acquisition”) and in connection with
alleged improper backdating and/or timing of stock option grants. The amended complaint was styled
Indiana State District Council of Laborers and Hod Carriers Pension Fund, on behalf of itself and
all others similarly situated and derivatively on behalf of RCG, Plaintiff, vs. RCG, Gary Brukardt,
William P. Johnston, Harry R. Jacobson, Joseph C. Hutts, William V. Lapham, Thomas A. Lowery,
Stephen D. McMurray, Peter J. Grua, C.



3









 




Thomas Smith, Ronald Hinds, Raymond Hakim and R. Dirk Allison, Defendants. The complaint sought
damages against former officers and directors and did not state a claim for money damages directly
against RCG. On August 30, 2007, this suit was dismissed by the trial court without leave to amend.
Plaintiff subsequently appealed and the matter remains pending in the appellate court of Tennessee.




     In October 2004, FMCH and its subsidiaries, including RCG (prior to the RCG Acquisition),
received subpoenas from the U.S. Department of Justice, Eastern District of New York in connection
with a civil and criminal investigation, which requires production of a broad range of documents
relating to FMCH’s and RCG’s operations, with specific attention to documents relating to
laboratory testing for parathyroid hormone (“PTH”) levels and vitamin D therapies. The Company is
cooperating with the government’s requests for information. The Company believes that it has
fulfilled all requests for information made by government investigators in this matter, and that it
has complied with applicable laws relating to PTH testing and use of vitamin D therapies.



     FMCH and its subsidiaries, including RCG (prior to the RCG Acquisition), received a subpoena
from the U.S. Department of Justice, Eastern District of Missouri, in connection with a joint civil
and criminal investigation. FMCH received its subpoena in April 2005. RCG received its subpoena in
August 2005. The subpoenas require production of a broad range of documents relating to FMCH’s and
RCG’s operations, with specific attention to documents related to clinical quality programs,
business development activities, medical director compensation and physician relationships, joint
ventures, and anemia management programs, RCG’s supply company, pharmaceutical and other services
that RCG provides to patients, RCG’s relationships to pharmaceutical companies, and RCG’s purchase
of dialysis equipment from FMCH. The Office of the Inspector General of the U.S. Department of
Health and Human Services and the U.S. Attorney’s office for the Eastern District of Texas have
also confirmed that they are participating in the review of the anemia management program issues
raised by the U.S. Attorney’s office for the Eastern District of Missouri. On July 17, 2007, the
U.S. Attorney’s office filed a civil complaint against RCG and FMCH in its capacity as RCG’s
current corporate parent in United States District Court, Eastern District of Missouri. The
complaint seeks monetary damages and penalties with respect to issues arising out of the operation
of RCG’s Method II supply company through 2005, prior to the date of FMCH’s acquisition of RCG. The
complaint is styled United States of America ex rel. Julie Williams et al. vs. Renal Care Group,
Renal Care Group Supply Company and FMCH. The Company believes that RCG’s operation of its Method
II supply company was in compliance with applicable law and will defend this litigation vigorously.
We will continue to cooperate in the ongoing investigation.



     In May 2006, RCG received a subpoena from the U.S. Department of Justice, Southern District of
New York in connection with an investigation into RCG’s administration of its stock option programs
and practices, including the procedure under which the exercise price was established for certain
of the option grants. The subpoena required production of a broad range of documents relating to
the RCG stock option program prior to the RCG Acquisition. The Company believes that is has
fulfilled all requests for information made by government investigators in this matter, and that
RCG complied with applicable laws relating to the issuance of stock options.



4









 





     In August 2007, the Sheet Metal Workers National Pension Fund filed a complaint in the United
States District Court for the Central District of California, Western Division (Los Angeles),
alleging that Amgen, Inc., the Company and DaVita Inc., marketed Amgen’s products, Epogen® and
Aranesp®, to hemodialysis patients for uses not approved by the FDA and thereby caused a putative
class of commercial insurers to pay for unnecessary prescriptions of these products. Although the
court dismissed the original allegations against the Company, it granted plaintiff leave to amend
and this litigation was subsequently consolidated with other cases against Epogen® and Aranesp®
Off-Label Marketing and Sales Practices Multidistrict Litigation and assigned to the Central
District of California. On July 2, 2008, a consolidated complaint was filed in the Multidistrict
Litigation that renews allegations against the Company and DaVita, in addition to those against
Amgen.



     On November 27, 2007, the United States District Court for the Western District of Texas (El
Paso) unsealed and permitted service of two complaints previously filed under seal by a qui tam
relator, a former FMCH local clinic employee (Qui tam is a legal provision under the United States
False Claims Act, which allows for private individuals to bring suit on behalf of the U.S. federal
government, as far as such individuals believe to have knowledge of presumable fraud committed by
third parties). The first complaint alleges that a nephrologist unlawfully employed in his practice
an assistant to perform patient care tasks that the assistant was not licensed to perform and that
Medicare billings by the nephrologist and FMCH therefore violated the False Claims Act. The second
complaint alleges that FMCH unlawfully retaliated against the relator by discharging her from
employment constructively. The United States Attorney for the Western District of Texas has
declined to intervene and to prosecute on behalf of the United States. Counsel for the nephrologist
has asserted that a criminal investigation of the relator’s allegations is continuing and has moved
the Court to stay all activity in the qui tam until the alleged criminal investigation has
concluded. FMCH has received no other notice of the pendency of any criminal investigation related
to this matter.



     From time to time, the Company is a party to or may be threatened with other litigation or
arbitration, claims or assessments arising in the ordinary course of its business. Management
regularly analyzes current information including, as applicable, the Company’s defenses and
insurance coverage and, as necessary, provides accruals for probable liabilities for the eventual
disposition of these matters.



     The Company, like other health care providers, conducts its operations under intense
government regulation and scrutiny. It must comply with regulations which relate to or govern the
safety and efficacy of medical products and supplies, the operation of manufacturing facilities,
laboratories and dialysis clinics, and environmental and occupational health and safety. The
Company must also comply with the Anti-Kickback Statute, the False Claims Act, the Stark Statute,
and other federal and state fraud and abuse laws. Applicable laws or regulations may be amended, or
enforcement agencies or courts may make interpretations that differ from the Company’s
interpretations or the manner in which it conducts its business. Enforcement has become a high
priority for the federal government and some states. In addition, the provisions of the False
Claims Act authorizing payment of a portion of any recovery to the party bringing the suit
encourage private plaintiffs to commence “whistle blower” actions. By virtue of this



5









 




regulatory environment, as well as the Company’s corporate integrity agreement with the U.S.
federal government, the Company’s business activities and practices are subject to extensive review
by regulatory authorities and private parties, and continuing audits, investigative demands,
subpoenas, other inquiries, claims and litigation relating to the Company’s compliance with
applicable laws and regulations. The Company may not always be aware that an inquiry or action has
begun, particularly in the case of “whistle blower” actions, which are initially filed under court
seal.




     The Company operates many facilities throughout the United States. In such a decentralized
system, it is often difficult to maintain the desired level of oversight and control over the
thousands of individuals employed by many affiliated companies. The Company relies upon its
management structure, regulatory and legal resources, and the effective operation of its compliance
program to direct, manage and monitor the activities of these employees. On occasion, the Company
may identify instances where employees, deliberately or inadvertently, have submitted inadequate or
false billings. The actions of such persons may subject the Company and its subsidiaries to
liability under the Anti-Kickback Statute, the Stark Statute and the False Claims Act, among other
laws.



     Physicians, hospitals and other participants in the health care industry are also subject to a
large number of lawsuits alleging professional negligence, malpractice, product liability, worker’s
compensation or related claims, many of which involve large claims and significant defense costs.
The Company has been and is currently subject to these suits due to the nature of its business and
expects that those types of lawsuits may continue. Although the Company maintains insurance at a
level which it believes to be prudent, it cannot assure that the coverage limits will be adequate
or that insurance will cover all asserted claims. A successful claim against the Company or any of
its subsidiaries in excess of insurance coverage could have a material adverse effect upon it and
the results of its operations. Any claims, regardless of their merit or eventual outcome, could
have a material adverse effect on the Company’s reputation and business.



     The Company has also had claims asserted against it and has had lawsuits filed against it
relating to alleged patent infringements or businesses that it has acquired or divested. These
claims and suits relate both to operation of the businesses and to the acquisition and divestiture
transactions. The Company has, when appropriate, asserted its own claims, and claims for
indemnification. A successful claim against the Company or any of its subsidiaries could have a
material adverse effect upon its business, financial condition, and the results of its operations.
Any claims, regardless of their merit or eventual outcome, could have a material adverse effect on
the Company’s reputation and business.



Accrued Special Charge for Legal Matters




     At December 31, 2001, the Company recorded a pre-tax special charge of $258,159 to reflect
anticipated expenses associated with the defense and resolution of pre-Merger tax claims,
Merger-related claims, and commercial insurer claims. The costs associated with the Settlement
Agreement and settlements with insurers have been charged against this accrual. With the



6









 




exception of the proposed $115,000 payment under the Settlement Agreement, all other matters
included in the special charge have been resolved. While the Company believes that its remaining
accrual reasonably estimates its currently anticipated costs related to the continued defense and
resolution of this matter, no assurances can be given that its actual costs incurred will not
exceed the amount of this accrual.





7












 




EXHIBIT B



Fresenius Medical Care

October 23, 2003


Giro Multi-Funding Corporation

c/o Global Securitization Services

114 West 47th Street, Suite 1715

New York, NY 10036


Paradigm Funding LLC

c/o WestLB AG, New York Branch

1211 Avenue of the Americas

New York, NY 10036


Asset One Securitization, LLC

c/o AMACAR Group, LLC

6525 Morrison Boulevard, Suite 318

Charlotte, North Carolina 28211


Liberty Street Funding Corp.

c/o Global Securitization Services, LLC

114 West 47th Street, Suite 1715

New York, NY 10036


WestLB AG, New York Branch, as Administrative Agent and as Agent

1211 Avenue of the Americas

New York, NY 10036


Bayerische Landesbank, New York Branch, as Administrative Agent

560 Lexington Avenue

New York, New York 10022


Société Générale, as Administrative Agent

1221 Avenue of the Americas

New York, NY 10020


The Bank of Nova Scotia, as Administrative Agent

One Liberty Plaza

New York, NY 10006


Each of the “Bank Investors”

(as defined in the Third Amended and Restated Transfer and

Administration Agreement described in this letter)


Arent Fox Kintner Plotkin & Kahn
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036-5339


Fresenius Medical Care North America

Corporate Headquarters 95 Hayden Avenue Lexington, MA 02420-9192 781-402-9000


 







 








October 23, 2003

Page 2





			
	RE:	 	Fresenius Medical Care Holdings, Inc., National Medical Care, Inc. and NMC
Funding Corporation — Third Amended and Restated Transfer and Administration Agreement




Ladies and Gentlemen




     I have acted as counsel to Fresenius Medical Care Holdings, Inc., a New York corporation
(“FMCH”), and National Medical Care, Inc., a Delaware corporation (“NMC”), in connection with (a)
the Receivables Purchase Agreement dated as of August 28, 1997 between NMC, as seller, and NMC
Funding Corporation (the “Transferor”), as purchaser (as amended, the “Receivables Purchase
Agreement”), (b) the Third Amended and Restated Transfer and Administration Agreement (as
amended, the “TAA”) dated as of October 23, 2003 among the Transferor, NMC as initial Collection
Agent, Paradigm Funding LLC (“Paradigm”), Giro Multi-Funding Corporation (“GMFC”), Asset One
Securitization, LLC (“Asset One”), Liberty Street Funding Corp. (“Liberty Street”), the Bank
Investors listed in such agreement, Bayerische Landesbank, New York Branch (“BayernLB”), Société
Générale (“SG”), The Bank of Nova Scotia (“Scotiabank”) and WestLB AG, New York Branch
(“WestLB”), as Administrative Agent and as Agent for the benefit of the Investors, (c) the Parent
Agreement dated as of August 28, 1997 among FMCH and Fresenius Medical Care AG , a corporation
organized and existing under the laws of the Federal Republic of Germany (“FMCAG”) in favor of
the Transferor, and the Agent (as amended by amendments Nos. 1-6 and by Amendment No. 7 dated the
date hereof, the “Parent Agreement”), (d) the Transferring Affiliate Letter dated as of August
28, 1997 between NMC, as Seller, and each of the Transferring Affiliates (as amended from time to
time, the “Transferring Affiliate Letter”), (e) the Investor Fee Letter dated October 23, 2003
among the Transferor, WestLB, BLB, SG, and Scotiabank (the “Investor Fee Letter”), (f) the Agent
Fee Letter among the Transferor and WestLB dated October 23, 2003 (the “Agent Fee Letter”), and
(g) the Amendment Agreement among the Transferor, NMC, GMFC, Asset One, BayernLB, SG, WestLB,
Bank of Ameirca, N.A., and the other-parties thereto, dated as of October 23, 2003 (the
“Amendment Agreement”). I have also acted as counsel to (x) each of the
corporations listed on Schedule I to this letter (each, a “Transferring Affiliate”, and
collectively, the “Transferring Affiliates” and together with FMCH, NMC and the Transferor
collectively, the “Parent Group Members”) and (y) for the limited purpose of rendering the
opinion set forth in Section 9(g) hereof, FMCAG. The Receivables Purchase Agreement, the TAA, the
Parent Agreement, the Transferring Affiliate Letter, the Investor Fee Letter, the Agent Fee
Letter and the Amendment Agreement together with each of the other instruments and agreements
listed on Schedule II hereto are collectively referred to herein as the “Transaction
Documents.” I am a Deputy General Counsel, Vice President and the Assistant Secretary of FMCH.
Capitalized terms not defined herein have the meanings assigned to them in the Transaction
Documents, except as otherwise indicated herein.



     I have examined and relied upon such corporate records and certificates of officers of the
Parent Group Members, certificates of public officials and the representations and warranties
of the Parent Group Members in the relevant Transaction Documents, and have made such
examination of law as I deemed relevant to the opinions set forth herein. Based upon the above,
and subject to the qualifications set forth below, it is my opinion that:


1. Organization, Existence and Good Standing.




     (a) FMCH is a corporation duly formed, validly existing and in good standing under the
laws of the State of New York, and is duly qualified and in good standing in each other state
in which the nature of the business it conducts or the assets it owns or leases requires such
qualification and in which the failure to be so qualified would have a Material Adverse Effect
on its business or operations.



 









 




October 23, 2003
Page 3


     (b) NMC is a corporation duly formed, validly existing and in good standing under the laws
of the State of Delaware, and is duly qualified and in good standing in each other state in
which the nature of the business it conducts or the assets it owns or leases requires such qualification and
in which the failure to be so qualified would have a Material Adverse Effect on its business or
operations.


     (c) Except as set forth in Schedule 1(c) hereto, each Transferring Affiliate is a corporation duly
formed, validly existing and in good standing under the laws of the state of its
incorporation, and is duly qualified and in good standing in each other state in which the nature of the business
it conducts or the assets it owns or leases requires such qualification and in which the failure to be in
good standing or so qualified would have a Material Adverse Effect on the business or operations of such
Transferring Affiliate.

2. Power and Authority.



     (a) FMCH has the requisite corporate power and authority to execute and deliver, and to
perform its obligations under, each of the Transaction Documents to which it is a party.


     (b) NMC has the requisite corporate power and authority to execute and deliver, and to
perform its obligations under, each of the Transaction Documents to which it is a party.


     (c) Each Transferring Affiliate has the requisite corporate power and authority to execute
and deliver, and to perform its obligations under, each of the Transaction Documents to which it
is a party.

3. Due Authorization.



     (a) The execution, delivery and performance of the Parent Agreement by FMCH have been duly
authorized by all necessary corporate action of FMCH.


     (b) The execution, delivery and performance of the Transaction Documents, to which
it is a party, by NMC have been duly authorized by all necessary corporate action of NMC.


     (c) The execution, delivery and performance of the Transaction Documents, to which it is a
party, by each Transferring Affiliate have been duly authorized by all necessary corporate action
of each Transferring Affiliate.

4. No Violation of Organic Documents.



     (a) FMCH’s execution and delivery of, and its performance of its obligations under, the
Parent Agreement will not violate its charter or
by-laws.


     (b) NMC’s execution and delivery of, and its performance of its obligations under, the
Transaction Documents to which it is a party will not violate its charter or by-laws.


     (c) Each Transferring Affiliate’s execution and delivery of, and its performance of its
obligations under, the Transaction Documents to which it is a party will not violate its
charter or by-laws.

5. Due Execution and Delivery; Validity; Binding Effect and General
Enforceability


     (a) FMCH has duly executed and delivered the Parent Agreement.


 







 




October 23, 2003
Page 4


     (b) NMC has duly executed and delivered each of the Transaction Documents to which it is a
party.


     (c) Each Transferring Affiliate has duly executed and delivered each of the Transaction
Documents to which it is a party.


     (d) The Parent Agreement constitutes the legal and valid obligation of, and is binding on and
enforceable against, FMCH in accordance with its terms.


     (e) Assuming that the transactions contemplated by the Transaction Documents bear a
reasonable relationship to the State of New York, in any action or proceeding arising out of
or relating to any Transaction Document in any court of The Commonwealth of Massachusetts or in any federal
court sitting in The Commonwealth of Massachusetts, such court should recognize and give effect to
the provisions thereof wherein the parties agree that such Transaction Document shall be governed
by, and construed in accordance with, the laws of the State of New York. However, in the event that
any such court shall determine that any of the Transaction Documents are governed by the laws of The
Commonwealth of Massachusetts, each of the Transaction Documents constitutes the legal and
valid obligation of, and is binding on and enforceable against, each of the Parent Group Members
parties thereto.


6. General Qualifications. The opinions set forth in Section 5 are subject to the following
qualifications:


     (a) The enforceability of the Transaction Documents may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other laws or other equitable
principles relating to or affecting the rights of creditors or other obligees generally.


     (b) The enforceability of the Transaction Documents may be limited by applicable principles
of equity, whether such principles are applied by a court of equity or a court of law, and I
express no opinion on whether a court would grant specific performance, injunctive relief or any
other equitable remedy.


     (c) The provisions regarding the remedies available to the Agent on default as set forth in
the Transaction Documents may be subject to certain procedural requirements that are not expressly
stated in the Transaction Documents, but neither the existence of these procedural requirements nor the
failure to specify them in the Transaction Documents make the remedies unenforceable.


     (d) A court could refuse to permit the Agent to foreclose any security interest in favor of
the Agent or enforce the Agent’s remedies under the Transaction Documents by reason of (i) a
waiver by the Agent, (ii) unconscionable conduct by the Agent, (iii) the exercise of remedies by the Agent
without providing adequate notice to FMCH, NMC or any of the Transferring Affiliates, as applicable of
the default and a reasonable opportunity to cure the default, (iv) the court’s determination that
FMCH, NMC or any of the Transferring Affiliates, as applicable are entitled to an opportunity to be
heard by the court before the Agent is entitled to exercise any remedies, (v) the court’s determination that a
remedy is a penalty or is unconscionable, (vi) the court’s determination that the Agent is seeking to
exercise remedies with respect to a breach that is immaterial or that does not adversely affect the Agent or the
Agent’s security, (vii) defenses arising from the Agent’s failure to act in accordance with the terms
and conditions of the Transaction Documents, (viii) defenses arising as a consequence of the passage of time
(e.g., laches or statutes of limitation), (ix) defenses arising as a result of the Agent’s failure to act in
a commercially reasonable manner or in good faith or (x) public policy considerations.


 







 




October 23, 2003
Page 5


     (e) I express no opinion with respect to any of the following provisions if they are
contained in any of the Transaction Documents: (i) self-help, non-judicial remedies or provisions
purporting to grant a right of possession without resort to judicial action to the extent
inconsistent with the Uniform Commercial Code or other applicable law; (ii) any provisions that
entitle the Agent, as a matter of right, to the appointment of a receiver; (iii) any provisions
imposing penalties, forfeitures, increased interest/discount rates and/or late payment charges
upon delinquency in payment or the occurrence of a default; (iv) any provisions under which FMCH,
NMC or any of the Transferring Affiliates, as applicable, waive any of its legal or equitable
rights except to the extent the waived rights are expressly waivable pursuant to a statute or
constitution provision; (v) any provisions entitling the Agent to obtain reimbursement for
attorneys’ fees and other costs incurred by the Agent; (vi) any provision permitting the Agent to
accelerate the Obligations or exercise any remedies in the event of a transfer or encumbrancing
of an immaterial portion of any collateral or immaterial changes in the beneficial ownership of
FMCH, NMC or any of the Transferring Affiliates, as applicable; (vii) any provision exonerating
or indemnifying the Agent (or any agent or employee of the Agent or any party acting on behalf of
the Agent) from the consequences of its own acts or omissions; (viii) any severability provision;
(ix) provisions relating to setoff rights; (x) any provision granting a power of attorney or
similar right; (xi) any provision to the effect that rights or remedies are not exclusive, that
every right or remedy is cumulative and may be exercised in addition to or with any other right
or remedy or that the election of a particular remedy does not preclude recourse to one or more
other remedies; (xii) any provision pursuant to which a party has granted to another party any
power to execute documents, settle claims or appear in judicial proceedings on behalf of such
party or to take any other action on behalf of such party; (xiii) any provision which purports to
affect jurisdiction or venue of any specified court or which purports to establish evidentiary
standards, or which waives trial by jury; (xiv) choice of law provision (except as discussed in
Section 5 above); (xv) any provision by which any party agrees to take action if that party’s
ability to take the action in question is subject to conditions another party to the Transaction
Documents controls; or (xvi) any provision that purports to grant the Agent relief from any
provisions of the Bankruptcy Code.

7. No Violations of Other Contracts.


     (a) FMCH’s execution, delivery and performance of the Parent Agreement will not breach any
Other Contract.


     (b) NMC’s execution, delivery and performance of the Transaction Documents to which it is
a party will not breach any Other Contract.


     (c) Each Transferring Affiliate’s execution, delivery and performance of the Transaction
Documents to which it is a party will not breach any Other Contract.


     (d) For purposes of this section, the term “Other Contract” means an indenture, mortgage,
deed of trust, loan agreement, or other material agreement or instrument of which I have
knowledge, to which, to the best of my knowledge, FMCH, NMC or any Transferring Affiliate is a party.


8. No Violations of Applicable Laws.


     (a) To the best of my knowledge, FMCH’s execution, delivery and performance of the
Parent Agreement will not violate any Applicable Law.


     (b) To the best of my knowledge, NMC’s execution, delivery and performance of the
Transaction Documents to which it is a party will not violate any Applicable Law.


 








 





October 23, 2003

Page 6




     (c) To the best of my knowledge, the Transferor’s and each Transferring Affiliate’s
execution, delivery and performance of the Transaction Documents to which it is a party will
not violate any Applicable Law.



     (d) For purposes of this paragraph, the term Applicable Law means, subject to the following
sentences, any provision of federal or Massachusetts law or regulation or Delaware General
Corporation Law that is generally applicable to organizations such as FMCH, NMC or any Transferring
Affiliate or that relates to transactions of this type. The term Applicable Law excludes federal and state
securities and blue-sky laws, tax laws, healthcare laws and related rules and regulations.


9. No Violations of Court Decrees or Orders and other Matters.




     (a) FMCH’s execution, delivery and performance of the Parent Agreement will not violate
any Court Decree or Order.



     (b) NMC’s execution, delivery and performance of the Transaction Documents to which it is
a party will not violate any Court Decree or Order.



     (c) Each Transferring Affiliate’s execution, delivery and performance of the Transaction
Documents to which it is a party will not violate any Court Decree or Order.



     (d) For purposes of this paragraph, the term Court Decree or Order means a decree, order or
other official action of any court or other governmental body that is, to the best of my
knowledge, specifically applicable to FMCH, NMC or any Transferring Affiliate as a named party.



     (e) The execution, delivery and performance by each Parent Group Member of the
Transaction Documents to which it is named as a party (a) to the best of my knowledge, does
not result in or require the creation of any lien, security interest or other charge or encumbrance upon or
with respect to any of such Person’s properties (except as may be specifically contemplated in the
Transaction Documents) and (b) does not require compliance with any bulk sales act or similar law.



     (f) To the best of my knowledge, no authorization, approval, consent or other action by, and
no notice to or filing with, any governmental authority or regulatory body is required for the
due execution, delivery and performance by any Parent Group Member of any Transaction Document to
which it is named as a party.



     (g) To the best of my knowledge, there are no actions, suits, orders, decrees, investigations,
or other proceedings pending or threatened at law, in equity, in arbitration or before any
governmental agency, commission or official against or affecting any Parent Group Member or FMCAG which
challenges or affects the legality, validity or enforceability of any Transaction Document or,
except as otherwise disclosed in Exhibit A attached hereto, which would otherwise be reasonably
likely to have a Material Adverse Effect.



     (h) To the best of my knowledge and belief there are no governmental authorization, approvals,
orders, licenses, certificates, franchises or permits of and from any governmental regulatory
officials and bodies, that are necessary in order for any Parent Group Member to own its respective
properties and to conduct its respective businesses as now being conducted, which have not been
obtained, except where the failure to have so obtained any such authorization, approvals, orders,
licenses, certificates franchises or permits, individually or in the aggregate, would not have a
Material Adverse Effect.



 









 




October 23, 2003

Page 7

10. Investment Company Act. Neither FMCH, NMC, the Transferor nor any Transferring Affiliate is
or is controlled by an “investment company” within the meaning of the Investment Company Act of
1940, as amended, and therefore none of them is subject to registration as an “investment company.”


11. Public Utility Holding Company Act. Neither FMCH, NMC, the Transferor nor any Transferring
Affiliate is a “holding company” within the meaning of the Public Utility Holding Company Act of
1935,
as amended.


12. The execution, delivery and performance of the TAA and the Parent Agreement (collectively, the
“Amendments”) would not cause me to modify any of the opinions or legal conclusions set forth in my
opinion dated September 27, 1999 (the “Original Opinion”), a copy of which is attached hereto as
Exhibit B. Subject to all applicable assumptions, limitations and qualifications set forth in the
Original Opinion
and in this opinion, I hereby reaffirm such opinions and legal conclusions as of the date hereof,
both
before and after giving effect to the Amendments.


The foregoing opinion is subject in its entirety to the following qualifications:


     The opinions expressed in this letter are solely for the use of the Agent, the Conduit
Investors, the Administrative Agents, and the Bank Investors and their permitted assignees and
participants, and their legal counsel. These opinions may not be relied on by any other persons,
may not be quoted in whole or in part, and may not be filed with any governmental agency, in each
case without my express prior written approval; provided that these opinions may be disclosed to,
and relied upon by, any rating agency then rating obligations of Paradigm, Asset One, GMFC,
Liberty Street, the Related CP Issuer, any Credit Support Provider, any Liquidity Provider and
Arent, Fox, Kintner, Plotkin & Kahn.


     The opinions expressed in this letter are rendered as of the date hereof and I express no
opinion as to circumstances or events that may occur in the future. The opinions expressed in this letter
are limited to the matters set forth in this letter, and no other opinions should be inferred beyond the
matters expressly stated.


     This opinion is based and relies upon the current status of the laws of The Commonwealth of
Massachusetts and the United States, and the General Corporation Law of the State of Delaware and
in all respects this opinion is subject to and may be limited by amendments or other changes in
such laws, rules and regulations, and any future laws, rules and regulations, as well as by
developing case law.


     I have relied without investigation on certificates and other communications from public
officials as to matters of fact. I have executed and delivered this opinion in my capacity as an
officer of Fresenius Medical Care Holdings, Inc.


Very truly yours,



Douglas G. Kott
Vice President, Assistant Secretary and
Deputy General Counsel


 







 




October 23, 2003
Page 8


Schedule 1(c)


Dialysis Specialists of Topeka, Inc. is currently not in good standing. The company did not file
its 2003 Annual Report. The company is in the process of filing the report and will then be in good
standing.


Santa Barbara Community Dialysis Services, Inc. is currently not in good standing. The company did
not file a Statement of Information. The company is in the process of filing the statement and
paying the necessary fees and will then be in good standing.


 







 







SCHEDULE I


LIST OF TRANSFERRING AFFILIATES


	 	 	 
	Chief Executive Office for each
	 	95 Hayden Avenue
	Transferring Affiliate:
	 	Lexington, Massachusetts 02420-9192





	 	 	 	 	 	 	 
		 		 	 	 
	Original Transferring Affiliates	 	State of	 		 
	(before December 21, 2001)
	 	Incorporation	 	FEIN	 
	Bio-Medical Applications Management Company, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Aquadilla, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Alabama, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Anacostia, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Arecibo, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Arizona, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Arkansas, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Bayamon, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Caguas, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of California, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Camarillo, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Capitol Hill, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Carolina, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Carson Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Columbia Heights, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Connecticut, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Delaware, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of East Orange, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Eureka, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Florida, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Fremont, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Fresno, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Georgia, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Glendora, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Guayama, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Hillside, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Humacao, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Illinois, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Indiana, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Irvington, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Jersey City, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Kansas, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Kentucky, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Las Americas, Inc.
	 	Delaware	 	 	*	 





 








 






	 	 	 	 	 	 	 
		 		 	 	 
	Original Transferring Affiliates	 	State of	 		 
	(before December 21, 2001)
	 	Incorporation	 	FEIN	 
	Bio-Medical Applications of Long Beach, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Los Gatos, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Louisiana, LLC
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Maine, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Maryland, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Massachusetts, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Mayaguez, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Michigan, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Minnesota, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Mission Hills, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Mississippi, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Missouri, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of MLK, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of New Hampshire, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of New Jersey, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of New Mexico, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of North Carolina, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Northeast, D.C., Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Oakland, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Ohio, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Oklahoma, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Pennsylvania, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Pine Brook, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Ponce, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Puerto Rico, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical
Applications of Rhode Island, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Rio Piedras, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of San German, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of San Juan, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of South Carolina, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Southeast Washington, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Tennessee, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Texas, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of The District of Columbia, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Trenton, Inc.
	 	Delaware	 		*	
	Bio-Medical Applications of Ukiah, Inc.
	 	Delaware	 		*	
	Bio-Medical Applications of Virginia, Inc.
	 	Delaware	 		*	
	Bio-Medical Applications of West Virginia, Inc.
	 	Delaware	 		*	
	Bio-Medical Applications of Wisconsin, Inc.
	 	Delaware	 		*	
	Bio-Medical Applications of Woonsocket, Inc.
	 	Delaware	 		*	
	FMC Dialysis Services — Oregon, LLC (f/k/a Willamette Valley Kidney Center, LLC)
	 	Oregon	 		*	
	FMC Dialysis Services Colorado, LLC (f/k/a Bio-Medical Applications of Colorado, Inc.)
	 	Delaware	 		*	
	Fresenius USA, Inc.
	 	Massachusetts	 		*	
	Home Intensive Care, Inc.
	 	Delaware	 		*	






 









 





	 	 	 	 	 	 	 
		 		 	 	 
	Original Transferring Affiliates	 	State of	 		 
	(before December 21, 2001)
	 	Incorporation	 	FEIN	 
	National Medical Care, Inc
	 	Delaware	 	 	*	 
	Neomedica, Inc
	 	Delaware	 	 	*	 
	San Diego Dialysis Services, Inc.
	 	Delaware	 	 	*	 
	Spectra East, Inc.
	 	Delaware	 	 	*	 
	Spectra Laboratories, Inc.
	 	Nevada	 	 	*	 






	 	 	 	 	 	 	 
	New Transferring Affiliates	 	State of	 	 	 
	(added on or after December 21, 2001)
	 	Incorporation	 	FEIN	 
	Bio-Medical Applications Home Dialysis Services, Inc.
	 	Delaware	 		*	 
	Bio-Medical Applications of Blue Springs, Inc
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Clinton, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Dover, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Essex, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Fayetteville, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Hoboken, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Manchester, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of Nevada, Inc
	 	Nevada	 	 	*	 
	Bio-Medical Applications of New York, Inc.
	 	Delaware	 	 	*	 
	Bio-Medical Applications of San Antonio, Inc.
	 	Delaware	 	 	*	 
	Con-Med Supply Company, Inc.
	 	Illinois	 	 	*	 
	Conejo Valley Dialysis, Inc.
	 	California	 	 	*	 
	Dialysis America Alabama, LLC
	 	Delaware	 	 	*	 
	Dialysis America Georgia, LLC
	 	Delaware	 	 	*	 
	Dialysis Associates of Northern Now Jersey, LLC
	 	New Jersey	 	 	*	 
	Dialysis Services, Inc.
	 	Texas	 	 	*	 
	Dialysis Services of Cincinnati, Inc.
	 	Ohio	 	 	*	 
	Dialysis Specialists of Topeka, Inc.
	 	Kansas	 	 	*	 
	Dialysis Specialists of Tulsa, Inc.
	 	Oklahoma	 	 	*	 
	DuPage Dialysis Ltd.
	 	Illinois	 	 	*	 
	Everest Healthcare Holdings, Inc.
	 	Delaware	 	 	*	 
	Everest Healthcare Indiana, Inc.
	 	Indiana	 	 	*	 
	Everest Healthcare Ohio, Inc.
	 	Ohio	 	 	*	 
	Everest Healthcare Rhode Island, Inc.
	 	Delaware	 	 	*	 
	Everest Healthcare Texas Holding Corp
	 	Delaware	 	 	*	 
	Everest Healthcare Texas, LP
	 	Delaware	 	 	*	 
	Everest Management, Inc.
	 	Delaware	 	 	*	 
	Fresenius Management Services, Inc.
	 	Delaware	 	 	*	 
	Fresenius USA Home Dialysis, Inc.
	 	Delaware	 	 	*	 
	Fresenius USA Marketing, Inc.
	 	Delaware	 	 	*	 
	Fresenius USA of Puerto Rico, Inc.
	 	Delaware	 	 	*	 
	Fresenius USA Sales, Inc.
	 	Massachusetts	 	 	*	 
	Gulf Region Mobile Dialysis, Inc.
	 	Delaware	 	 	*	 
	Haemo-Stat, Inc.
	 	California	 	 	*	 
	Home Dialysis of America, Inc.
	 	Arizona	 		*	
	Home Dialysis of Muhlenberg County, Inc.
	 	Kentucky	 		*	






 









 





	 	 	 	 	 	 	 
		 		 	 	 
	Original Transferring Affiliates	 	State of	 		 
	(before December 21, 2001)
	 	Incorporation	 	FEIN	 
	Mercy Dialysis Center, Inc.
	 	Wisconsin	 	 	*	 
	NMC A, LLC
	 	Delaware	 	 	*	 
	North Buckner Dialysis Center, Inc.
	 	Delaware	 	 	*	 
	Northern New Jersey Dialysis, LLC
	 	Delaware	 	 	*	 
	Prime Medical, Inc.
	 	Massachusetts	 	 	*	 
	Qualicenters, Inc.
	 	Colorado	 	 	*	 
	Renal Scientific Services, Inc.
	 	Delaware	 	 	*	 
	Santa Barbara Community Dialysis Center, Inc.
	 	California	 	 	*	 
	Terrell Dialysis Center, LLC
	 	Delaware	 	 	*	 
	WSKC Dialysis Services, Inc.
	 	Illinois	 	 	*	 




 







 





Schedule II




	1.	 	Amendment Agreement.
	 
	2.	 	Third Amended and Restated Transfer and Administration Agreement.
	 
	3.	 	Amended and Restated Transfer Certificate, reflecting transfer of rights of Agent to WestLB.
	 
	4.	 	Amendment to Concentration Account with JPMorgan Chase Bank, reflecting transfer of rights of
Agent to WestLB.
	 
	5.	 	Amendment No. 7 to Parent Agreement, relating to changes in financial covenants and
transfer of rights of Agent to WestLB.
	 
	6.	 	Amendment No. 4 to the Receivables Purchase Agreement, reflecting transfer of rights of Agent
to WestLB.
	 
	7.	 	Amendment No. 3 to Transferring Affiliate Letter, reflecting transfer of rights of Agent to
WestLB.
	 
	8.	 	Reaffirmation opinion of Douglas G. Kott.
	 
	9.	 	Reaffirmation opinion of Arent Fox Kintner Plotkin & Kahn.
	 
	10.	 	Certificate of the Secretary of the Transferor.
	 
	11.	 	Certificate of the Secretary of the Collection Agent.
	 
	12.	 	Good Standing Certificates for the Transferor from the Secretary of the Commonwealth of
Massachusetts and the Secretary of State of Delaware.
	 
	13.	 	Good Standing Certificates for the Collection Agent from the Secretary of the Commonwealth of
Massachusetts and the Secretary of State of Delaware.
	 
	14.	 	Investor Fee Letter.
	 
	15.	 	Agent Fee Letter.
	 
	16.	 	UCC financing statement assignments reflecting transfer of rights of Agent to WestLB.
	 
	17.	 	Certificate of the Secretary of NMC A, LLC.
	 
	18.	 	Good Standing Certificate for NMC A, LLC from the Secretary of State of Delaware.
	 
	19.	 	UCC-1 Financing Statement for NMC A, LLC.



 








 






	20.	 	Amendment to UCC-1 for Bio-Medical Applications of Louisiana, Inc. (change of name to
Bio-Medical Applications of Louisiana, LLC).
	 
	21.	 	Up-Front Fee Letter (WestLB).
	 
	22.	 	Up-Front Fee Letter (Scotiabank).
	 
	23.	 	Up-Front Fee Letter (SocGen).
	 
	24.	 	Up-Front Fee Letter (BayernLB).




2









 











EXHIBIT A



The following is an excerpt from the Form 10Q filing of Fresenius Medical Care Holdings, Inc. (the
“Company”) with the Securities and Exchange Commission for the period ending June 30, 2003:




LEGAL PROCEEDINGS




     COMMERCIAL LITIGATION



     The Company was formed as a result of a series of transactions pursuant to the Agreement and
Plan of Reorganization (the “Merger”) dated as of February 4, 1996 by and between W.R. Grace & Co.
and Fresenius AG. At the time of the Merger, a W.R. Grace & Co. subsidiary known as W.R. Grace &
Co.-Conn. had, and continues to have, significant potential liabilities arising out of
product-liability related litigation, pre-Merger tax claims and other claims unrelated to NMC,
which was Grace’s dialysis business prior to the Merger. In connection with the Merger, W.R. Grace
& Co.-Conn. agreed to indemnify the Company, and NMC against all liabilities of W.R. Grace & Co.,
whether relating to events occurring before or after the Merger, other than liabilities arising
from or relating to NMC’s operations. W.R. Grace & Co. and certain of its subsidiaries filed for
reorganization under Chapter 11 of the U.S. Bankruptcy Code (the “Grace Chapter 11 Proceedings”) on
April 2, 2001.



     Pre-Merger tax claims or tax claims that would arise if events were to violate the tax-free
nature of the Merger, could ultimately be the obligation of the Company. In particular W. R. Grace
& Co. has disclosed in its filings with the Securities and Exchange Commission that: its tax
returns for the l993 to 1996 tax years are under audit by the Internal Revenue Service (the
“Service”); W. R. Grace & Co. has received the Service’s examination report on tax periods 1993 to
1996; that during those years Grace deducted approximately $122.1 million in interest attributable
to corporate owned life insurance (“COLI”) policy loans; that W.R. Grace & Co. has paid $21.2
million of tax and interest related to COLI deductions taken in tax years prior to 1993; that a
U.S. District Court ruling has denied interest deductions of a taxpayer in a similar situation and
that W.R. Grace Co. is seeking a settlement of the Service’s claims. Subject to certain
representations made by W.R. Grace & Co., the Company and Fresenius AG, W.R. Grace & Co. and
certain of its affiliates agreed to indemnify the Company against this and other pre-Merger and
Merger related tax liabilities.



     Prior to and after the commencement of the Grace Chapter 11 Proceedings, class action
complaints were filed against W.R. Grace & Co. and the Company by plaintiffs claiming to be
creditors of W.R. Grace & Co.- Conn., and by the asbestos creditors’ committees on behalf of the
W.R. Grace & Co. bankruptcy estate in the Grace Chapter 11 Proceedings, alleging among other
things that the Merger was a fraudulent conveyance, violated the uniform fraudulent transfer act
and constituted a conspiracy. All such cases have been stayed and transferred to or are pending
before the U.S. District Court as part of the Grace Chapter 11 Proceedings.



 









 





     On February 6, 2003, the Company reached a definitive agreement with the asbestos creditors’
committees on behalf of the W.R. Grace and Co. bankruptcy estate in the matters pending in the
Grace Chapter 11 Proceedings for the settlement of all fraudulent conveyance claims against it and
other claims related to the Company that arise out of the bankruptcy of W.R. Grace & Co.
Subsequently, the settlement agreement was amended and W.R. Grace was added as a settling party.
Under the terms of the settlement agreement as amended (the “Settlement Agreement”), fraudulent
conveyance and other claims raised on behalf of asbestos claimants will be dismissed with
prejudice and the Company will receive protection against existing and potential future W.R. Grace
& Co. related claims, including fraudulent conveyance and asbestos claims, and indemnification
against income tax claims related to the non-NMC members of the W.R. Grace & Co. consolidated tax
group upon confirmation of a W.R. Grace & Co. bankruptcy reorganization plan that contains such
provisions. Under the Settlement Agreement, the Company will pay a total of $115 million to the
W.R. Grace & Co. bankruptcy estate, or as otherwise directed by the Court, upon plan confirmation.
No admission of liability has been or will be made. The Settlement Agreement has been approved by
the U.S. District Court. Subsequent to the Merger, W.R. Grace & Co. was involved in a multi-step
transaction involving Sealed Air Corporation (formerly known as Grace Holding, Inc.). The Company
is engaged in litigation with Sealed Air Corporation (“Sealed Air”) to confirm the Company’s
entitlement to indemnification from Sealed Air for all losses and expenses incurred by the Company
relating to pre-Merger tax liabilities and Merger-related claims. Under the Settlement Agreement,
upon confirmation of a plan that satisfies the conditions to the Company’s payment obligation,
this litigation will be dismissed with prejudice.



     In April 2003, the Company, NMC, and the certain NMC subsidiaries agreed to settle all
litigation filed by a group of insurance companies concerning allegations of inappropriate billing
practices and misrepresentations and the Company’s counterclaims against the plaintiffs in these
matters based on inappropriate claim denials and delays in claim payments. The costs of the
settlement will be charged against previously established accruals. See “Accrued Special Charge for
Legal Matters” below. Other private payors have contacted the Company regarding similar claims and
may file their own lawsuit seeking reimbursement and other damages. Although the ultimate outcome
on the Company of any such proceedings cannot be predicted at this time, an adverse result could
have a material adverse effect on the Company’s business, financial condition and results of
operations.



     On April 4, 2003, the Company filed a suit in the United States District Court for the
Northern District of California, Fresenius USA, Inc., et al., v. Baxter International Inc., et
al., Case No. C 03-1431, seeking a declaratory judgment that the Company does not infringe on
patents held by Baxter International, Inc. and its subsidiaries and affiliates (“Baxter”), that
the patents are invalid, and that Baxter is without right or authority to threaten or maintain
suit against the Company for alleged infringement of Baxter’s patents. In general, the alleged
patents concern touch screens, conductivity alarms, power failure data storages, and balance
chambers for hemodialysis machines. Baxter has filed



 









 




counterclaims against the Company seeking monetary damages and injunctive relief, and alleging
that the Company willfully infringes on the Baxter’s patents. The Company believes its claims are
meritorious, although the ultimate outcome of any such proceedings cannot be predicted at this
time and an adverse result could have a material adverse effect on the Company’s business,
financial condition, and results of operations.




     OTHER LITIGATION AND POTENTIAL EXPOSURES



     From time to time, the Company is a party to or may be threatened with other litigation
arising in the ordinary course of its business. Management regularly analyzes current information
including, as applicable, the Company’s defenses and insurance coverage and, as necessary,
provides accruals for probable liabilities for the eventual disposition of these matters.



     The Company, like other health care providers, conducts its operations under intense
government regulation and scrutiny. The Company must comply with regulations which relate to or
govern the safety and efficacy of medical products and supplies, the operation of manufacturing
facilities, laboratories and dialysis clinics, and environmental and occupational health and
safety. The Company must also comply with the Anti-Kickback Statute, the False Claims Act, the
Stark Statute, and other federal and state fraud and abuse laws. Applicable laws or regulations may
be amended, or enforcement agencies or courts may make interpretations that differ from the
Company’s or the manner in which the Company conduct its business. Enforcement has become a high
priority for the federal government and some states. In addition, the provisions of the False
Claims Act authorizing payment of a portion of any recovery to the party bringing the suit
encourage private plaintiffs to commence “whistle blower” actions. By virtue of this regulatory
environment, as well as our corporate integrity agreement with the government, the Company expects
that its business activities and practices will continue to be subject to extensive review by
regulatory authorities and private parties, and expects continuing inquiries, claims and litigation
relating to its compliance with applicable laws and regulations. The Company may not always be
aware that an inquiry or action has begun, particularly in the case of “whistle blower” actions,
which are initially filed under court seal.



     The Company operates many facilities throughout the U.S. In such a decentralized system, it
is often difficult to maintain the desired level of oversight and control over the thousands of
individuals employed by many affiliated companies. The Company relies upon its management
structure, regulatory and legal resources, and the effective operation of its compliance program
to direct, manage and monitor the activities of these employees. On occasion, the Company may
identify instances where employees, deliberately or inadvertently, have submitted inadequate or
false billings. The actions of such persons may subject the Company and its subsidiaries to
liability under the Anti-Kickback Statute, the Stark Statute and the False Claims Act, among
other laws.



     Physicians, hospitals and other participants in the health care industry are also subject
to a large number of lawsuits alleging professional negligence, malpractice,



 









 




product liability, worker’s compensation or related claims, many of which involve large claims and
significant defense costs. The Company has been subject to these suits due to the nature of its
business and the Company expects that those types of lawsuits may continue. Although the Company
maintains insurance at a level which it believes to be prudent, the Company cannot assure that the
coverage limits will be adequate or that insurance will cover all asserted claims. A successful
claim against the Company or any of its subsidiaries in excess of insurance coverage could have a
material adverse effect upon the Company and the results of its operations. Any claims, regardless
of their merit or eventual outcome, also may have a material adverse effect on the Company’s
reputation and business.




     The Company has also had claims asserted against it and has had lawsuits filed against it
relating to businesses that it has acquired or divested. These claims and suits relate both to
operation of the businesses and to the acquisition and divestiture transactions. The Company has
asserted its own claims, and claims for indemnification. Although the ultimate outcome on the
Company cannot be predicted at this time, an adverse result could have a material adverse effect
upon the Company’s business, financial condition, and results of operations.



     ACCRUED SPECIAL CHARGE FOR LEGAL MATTERS



     At December 31, 2001, the Company recorded a pre-tax special charge of $258 million to
reflect anticipated expenses associated with the continued defense and resolution of pre-Merger
tax claims, Merger-related claims, and commercial insurer claims. The costs associated with the
Settlement Agreement and settlement with insurers are charged against this accrual. While the
Company believes that its remaining accruals reasonably estimate the Company’s currently
anticipated costs related to the continued defense and resolution of the remaining matters, no
assurances can be given that the actual costs incurred by the Company will not exceed the amount
of these accruals.



 









 









September 27, 1999


Enterprise Funding Corporation

c/o Bank of America, N.A.

Bank of America, N.A. Corporate Center

Charlotte, NC 28255


Compass US Acquisition, LLC

c/o Westdeutsche Landesbank

Girozentrale, New York Branch

1211 Avenue of the Americas

New York, NY 10036


Bank of America, N.A., as Administrative Agent and as Agent

Bank of America Corporate Center

Charlotte, North Carolina 28255


Westdeutsche Landesbank

Girozentrale, New York Branch

1211 Avenue of the Americas

New York, NY 10036


Each of the “Bank Investors”

(as defined in the Amended and Restated Transfer and

Administration Agreement described in this letter)


Arent Fox Kintner Plotkin & Kahn

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036-5339



			
	RE:	 	Fresenius Medical Care Holdings, Inc., National Medical
Care, Inc. and NMC Funding Corporation — Amended and Restated Transfer and
Administration Agreement




Ladies and Gentlemen


     I have acted as counsel to Fresenius Medical Care Holdings, Inc., a New
York corporation (“FMCH”), and National Medical Care, Inc., a Delaware
corporation (“NMC”), in connection with (a) the Receivables Purchase Agreement
dated as of


Fresenius Medical Care North America



Corporate Headquarters: Two Ledgemont Center 95 Hayden Avenue Lexington, MA 02420-9192 (781) 402-9000


 








 




September 27, 1999
Page 2

August 28, 1997 between NMC, as seller, and NMC Funding Corporation (the “Transferor”), as
purchaser (the “Receivables Purchase Agreement”), (b) the Amended and Restated Transfer and
Administration Agreement (the “TAA”) dated as of the date hereof among the Transferor, NMC as
initial Collection Agent, Enterprise Funding Corporation (“Enterprise”), Compass US Acquisition,
LLC (“Compass”), the Bank Investors listed in such agreement, Westdeutsche Landesbank,
Girozentrale, New York Branch and Bank of America, N.A., as Administrative Agent and as Agent for
the benefit of Enterprise, Compass and the Bank Investors and (c) the Parent Agreement dated as of
August 28, 1997 among FMCH and Fresenius Medical Care AG, a corporation organized and existing
under the laws of the Federal Republic of Germany (“FMC AG”) in favor of the Transferor, Enterprise
and the Agent, as amended by Amendment No. 1 to Parent Agreement dated as of the date hereof by
FMCH and FMC AG (as amended, the “Parent Agreement”). I have also acted as counsel to (x) each of
the corporations listed on Schedule I to this letter (each, a “Transferring Affiliate”, and
collectively, the “Transferring Affiliates” and together with FMCH, NMC and the Transferor
collectively, the “Parent Group Members”) and (y) for the limited purpose of rendering the opinion
set forth in Section 9(g) hereof, FMC AG. The Receivables Purchase Agreement, the TAA, and the
Parent Agreement together with each of the other instruments and agreements listed on Schedule
II hereto are collectively referred to herein as the “Transaction Documents.” I am an Associate
General Counsel, Vice President and Assistant Secretary of FMCH. Capitalized terms not defined
herein have the meanings assigned to them in the Transaction Documents, except as otherwise
indicated herein.



     I have examined and relied upon such corporate records and certificates of officers of the Parent
Group Members, certificates of public officials and the representations and warranties of the
Parent Group Members in the relevant Transaction Documents, and have made such examination of law
as I deemed relevant to the opinions set forth herein. Based upon the above, and subject to the
qualifications set forth below, it is my opinion that:

1. Organization, Existence and Good Standing.



     (a) FMCH is a corporation duly formed, validly existing and in good standing under the laws of
the State of New York, and is duly qualified and in good standing in each other state in which the
nature of the business it conducts or the assets it owns or leases requires such qualification and
in which the failure to be so qualified would have a material adverse effect on its business or
operations.


     (b) NMC is a corporation duly formed, validly existing and in good standing under the laws of
the State of Delaware, and is duly qualified and in good standing in each other state in which the
nature of the business it conducts or the assets it owns or leases requires such qualification and
in which the failure to be so qualified would have a material adverse effect on its business or
operations.



 








 




September 27, 1999
Page 3


     (c) Each Transferring Affiliate is a corporation duly formed, validly existing and
in good standing under the laws of the state of its incorporation, and is duly qualified and
in good standing in each other state in which the nature of the business it conducts or the
assets it owns or leases requires such qualification and in which the failure to be in good
standing or so qualified would have a material adverse effect on the business or operations
of such Transferring Affiliate.

2. Power and Authority.



     (a) FMCH has the requisite corporate power and authority to execute and deliver, and to
perform its obligations under, each of the Transaction Documents to which it is a party.


     (b) NMC has the requisite corporate power and authority to execute and deliver, and to
perform its obligations under, each of the Transaction Documents to which it is a party.


     (c) Each Transferring Affiliate has the requisite corporate power and authority
to execute and deliver, and to perform its obligations under, each of the Transaction
Documents to which it is a party.

3. Due Authorization.



     (a) The execution, delivery and performance of the Parent Agreement by FMCH have been duly
authorized by all necessary corporate action of FMCH.


     (b) The execution, delivery and performance of the Transaction Documents by NMC have
been duly authorized by all necessary corporate action of NMC.


     (c) The execution, delivery and performance of the Transaction Documents by each
Transferring Affiliate have been duly authorized by all necessary corporate action of each
Transferring Affiliate.

4. No Violation of Organic Documents.



     (a) FMCH’s execution and delivery of, and its performance of its obligations
under, the Parent Agreement will not violate its charter or
by-laws.


     (b) NMC’s execution and delivery of, and its performance of its obligations under, the
Transaction Documents will not violate its charter or by-laws.


     (c) Each Transferring Affiliate’s execution and delivery of, and its performance of its
obligations under, the Transaction Documents will not violate its charter or by-laws.


 








 




September 27, 1999
Page 4


5. Due Execution and Delivery; Validity; Binding Effect and General
Enforceability


     (a) FMCH has duly executed and delivered the Parent Agreement.


     (b) NMC has duly executed and delivered each of the Transaction Documents to which
it is a party.


     (c) Each Transferring Affiliate has duly executed and delivered each of the Transaction
Documents to which it is a party.


     (d) The Parent Agreement constitutes the legal and valid obligation of, and is binding on and
enforceable against, FMCH in accordance with its terms.


     (e) In any action or proceeding arising out of or relating to any Transaction Document in any
court of The Commonwealth of Massachusetts or in any federal court sitting in The Commonwealth of
Massachusetts, such court should recognize and give effect to the provisions thereof wherein the
parties agree that such Transaction Document shall be governed by, and construed in accordance
with, the laws of the State of New York. However, in the event that any such court shall determine
that any of the Transaction Documents are governed by the laws of The Commonwealth of
Massachusetts, each of the Transaction Documents constitutes the legal and valid obligation of, and
is binding on and enforceable against, each of the Parent Group Members parties thereto.

6. General Qualifications. The opinions set forth in Section 5 are subject to the following
qualifications:



     (a) The enforceability of the Transaction Documents may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws or other equitable principles
relating to or affecting the rights of creditors or other obligees generally.


     (b) The enforceability of the Transaction Documents may be limited by applicable principles of
equity, whether such principles are applied by a court of equity or a court of law, and we express
no opinion on whether a court would grant specific performance, injunctive relief or any other
equitable remedy.


     (c) The provisions regarding the remedies available to the Agent on default as set forth in
the Transaction Documents may be subject to certain procedural requirements that are not expressly
staled in the Transaction Documents, but neither the existence of these procedural requirements nor
the failure to specify them in the Transaction Documents make the remedies unenforceable.


 








 





September 27, 1999

Page 5




     (d) A court could refuse to permit the Agent to foreclose any security interest in favor of
the Agent or enforce the Agent’s remedies under the Transaction Documents by reason of (i) a
waiver by the Agent, (ii) unconscionable conduct by the Agent, (iii) the exercise of remedies by
the Agent without providing adequate notice to FMCH, NMC or any of the Transferring Affiliates, as
applicable of the default and a reasonable opportunity to cure the default, (iv) the court’s
determination that FMCH, NMC or any of the Transferring Affiliates, as applicable are entitled to
an opportunity to be heard by the court before the Agent is entitled to exercise any remedies, (v)
the court’s determination that a remedy is a penalty or is unconscionable, (vi) the court’s
determination that the Agent is seeking to exercise remedies with respect to a breach that is
immaterial or that does not adversely affect the Agent or the Agent’s security, (vii) defenses
arising from the Agent’s failure to act in accordance with the terms and conditions of the
Transaction Documents, (viii) defenses arising as a consequence of the passage of time (e.g.,
laches or statutes of limitation), (ix) defenses arising as a result of the Agent’s failure to act
in a commercially reasonable manner or in good faith or (x) public policy considerations.



     (e) I express no opinion with respect to any of the following provisions if they are contained
in any of the Transaction Documents: (i) self-help, non-judicial remedies or provisions purporting
to grant a right of possession without resort to judicial action to the extent inconsistent with
the Uniform Commercial Code or other applicable law; (ii) any provisions that entitle the Agent, as
a matter of right, to the appointment of a receiver; (iii) any provisions imposing penalties,
forfeitures, increased interest/discount rates and/or late payment charges upon delinquency in payment or the
occurrence of a default; (iv) any provisions under which FMCH, NMC or any of the
Transferring Affiliates, as applicable, waive any of its legal or equitable rights except to the
extent the waived rights are expressly waivable pursuant to a statute or constitution provision;
(v) any provisions entitling the Agent to obtain reimbursement for attorneys’ fees and other costs
incurred by the Agent; (vi) any provision permitting the Agent to accelerate the Obligations or
exercise any remedies in the event of a transfer or encumbrancing of an immaterial portion of any
collateral or immaterial changes in the beneficial ownership of FMCH, NMC or any of the
Transferring Affiliates, as applicable; (vii) any provision exonerating or indemnifying the Agent
(or any agent or employee of the Agent or any party acting on behalf of the Agent) from the
consequences of its own acts or omissions; (viii) any severability provision; (ix) provisions
relating to setoff rights; (x) any provision granting a power of attorney or similar right; (xi)
any provision to the effect that rights or remedies are not exclusive, that every right or remedy
is cumulative and may be exercised in addition to or with any other right or remedy or that the
election of a particular remedy does not preclude recourse to one or more other remedies; (xii) any
provision pursuant to which a party has granted to another party any power to execute documents,
settle claims or appear in judicial proceedings on behalf of such party or to take any other action
on behalf of such party; (xiii) any provision which purports to affect jurisdiction or venue of any
specified court or which purports to establish evidentiary standards, or which waives trial by
jury; (xiv) choice of law provision (except as discussed in paragraph 5 above);



 









 





September 27, 1999

Page 6



(xv) any provision by which any party agrees to take action if that party’s ability to take the
action in question is subject to conditions another party to the Transaction Documents controls; or
(xvi) any provision that purports to grant the Agent relief from any provisions of the Bankruptcy
Code.



7. No Violations of Other Contracts.




     (a) FMCH’s execution, delivery and performance of the Parent Agreement and the Reaffirmation
Agreement will not breach any Other Contract.



     (b) NMC’s execution, delivery and performance of the Transaction Documents to which it
is a party will not breach any Other Contract.



     (c) Each Transferring Affiliate’s execution, delivery and performance of the Transaction
Documents to which it is a party will not breach any Other Contract.



     (d) For purposes of this section, the term Other Contract means an indenture, mortgage, deed
of trust, loan agreement, or other material agreement or instrument to which, to the best of my
knowledge, FMCH, NMC or any Transferring Affiliate is a party.


8. No Violations of Applicable Laws.




     (a) To the best of my knowledge, FMCH’s execution, delivery and performance of the
parent Agreement will not violate any Applicable Law.



     (b) To the best of my knowledge, NMC’s execution, delivery and performance of the Transaction
Documents to which it is a party will not violate any Applicable Law.



     (c) To the best of my knowledge, the Transferor’s and each Transferring Affiliate’s execution,
delivery and performance of the Transaction Documents to which it is a party will not violate any
Applicable Law.



     (d) For purposes of this paragraph, the term Applicable Law means, subject to the following
sentences, any provision of federal or Massachusetts law or regulation or Delaware General
Corporation Law that is generally applicable to organizations such as FMCH, NMC or any Transferring
Affiliate or that relates to transactions of this type. The term Applicable Law excludes federal
and state securities and blue-sky laws, tax laws, healthcare laws and related rules and
regulations.


9. No Violations of Court Decrees or Orders and other Matters.




     (a) FMCH’s execution, delivery and performance of the Parent Agreement will not
violate any Court Decree or Order.



 









 




September 27, 1999
Page 7


     (b) NMC’s execution, delivery and performance of the Transaction Documents to which it
is a party will not violate any Court Decree or Order.


     (c) Each Transferring Affiliate’s execution, delivery and performance of the Transaction
Documents to which it is a party will not violate any Court Decree or Order.


     (d) For purposes of this paragraph, the term Court Decree or Order means a decree, order or
other official action of any court or other governmental body that is, to the best of my knowledge,
specifically applicable to FMCH, NMC or any Transferring Affiliate as a named party.


     (e) The execution, delivery and performance by each Parent Group Member of the Transaction
Documents to which it is named as a party (a) to the best of my knowledge, does not result in or
require the creation of any lien, security interest or other charge or encumbrance upon or with
respect to any of such Person’s properties (except as may be specifically contemplated in the
Transaction Documents) and (b) does not require compliance with any bulk sales act or similar law.


     (f) To the best of my knowledge, no authorization, approval, consent or other action by, and
no notice to or filing with, any governmental authority or regulatory body is required for the due
execution, delivery and performance by any Parent Group Member of any Transaction Document to which
it is named as a party.


     (g) To the best of my knowledge, there are no actions, suits, orders, decrees, investigations, or other proceedings pending or threatened at law, in equity, in
arbitration or before any governmental agency, commission or official against or affecting any
Parent Group Member or FMC AG which challenges or affects the legality, validity or enforceability
of any Transaction Document or, except as otherwise disclosed in Exhibit A attached hereto,
which would otherwise be reasonably likely to have a Material Adverse Effect


     (h) To the best of my knowledge and belief there are no governmental authorization,
approvals, orders, licenses, certificates, franchises or permits of and from any governmental
regulatory officials and bodies, that are necessary in order for any Parent Group Member to own its
respective properties and to conduct its respective businesses as now being conducted, which have
not been obtained, except where the failure to have so obtained any such authorization, approvals,
orders, licenses, certificates franchises or permits, individually or in the aggregate, would not
have a Material Adverse Effect.

10. Investment Company Act. Neither FMCH, NMC, the Transferor nor any Transferring
Affiliate is or is controlled by an “investment company” within the



 








 




September 27, 1999
Page 8


meaning of the Investment Company Act of 1940, as amended, and therefore none of them is
subject to registration as an “investment company.”


11. Public Utility Holding Company Act. Neither FMCH, NMC, the Transferor nor any
Transferring Affiliate is a “holding company” within the meaning of the Public Utility Holding
Company Act of 1935, as amended.


The foregoing opinion is subject in its entirety to the following qualifications:


     The opinions expressed in this letter are solely for the use of the Agent, Enterprise,
Compass, the Administrative Agents and the Bank Investors, and their permitted assignees and
participants, and their legal counsel. These opinions may not be relied on by any other persons,
may not be quoted in whole or in part, and may not be filed with any governmental agency, in each
case without my express prior written approval; provided that these opinions may be disclosed to,
and relied upon by, any rating agency then rating obligations of Enterprise, Compass, the Related
CP Issuer, any Credit Support Provider, any Liquidity Provider and Arent, Fox, Kintner, Plotkin &
Kahn.


     The opinions expressed in this letter are rendered as of the date hereof and I express no
opinion as to circumstances or events that may occur in the future. The opinions expressed in
this letter are limited to the matters set forth in this letter, and no other opinions should be
inferred beyond the matters expressly stated.


     This opinion is based and relies upon the current status of the laws of The Commonwealth
of Massachusetts and the United States, and the General Corporation
Law of the State of Delaware and in all respects this opinion is subject to and may be limited
by amendments or other changes in such laws, rules and regulations, and any future laws, rules
and regulations, as well as by developing case law.


     I have relied without investigation on certificates and other communications from public
officials as to matters of fact.


Very truly yours,



Douglas G. Kott
Vice President, Assistant Secretary and
Associate General Counsel


 







 





September _, 1999

Page 9




SCHEDULE I

(LIST OF TRANSFERRING AFFILIATES)





 












 




Exhibit
[  ]

EXHIBIT A




LIST OF TRANSFERRING AFFILIATES




Transferring Affiliates




	 	 	 
	Chief Executive Office for each

	 	Two Ledgemont Center
	  Transferring Affiliation:

	 	95 Hayden Avenue
	 

	 	Lexington, Massachusetts 02420-9192






	 	 	 
	Dialysis Services	 	State of Incorporation
	 
	 	 
	Bio-Medical Applications Management Company, Inc

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Aguadilla,
Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Alabama, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Alameda
County, 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






Page 1









 





Exhibit [   ]




	 	 	 
	Dialysis Services	 	State of Incorporation
	 
	 	 
	Bio-Medical
Applications of Blue Springs,
Inc

	 	Delaware
	 
	 	 
	Bio-Medical Applications of
Caguas, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of
California, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of
Camarillo, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of
Capitol Hill, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of
Carolina, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of
Carson, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of
Clinton, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of
Colorado, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of
Columbia Heights, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of
Connecticut, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of
Delaware, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of
Dover, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of
East Orange, Inc

	 	Delaware
	 
	 	 
	Bio-Medical Applications of
Essex, Inc.

	 	Delaware






Page 2









 





Exhibit [   ]



	 	 	 
	Dialysis Services	 	State of Incorporation
	 
	 	 
	Bio-Medical Applications of
Eureka, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of
Fayetteville, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Florida,
Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Fremont,
Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Fresno, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Georgia,
Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Glendora,
Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Guayama,
Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of
Hillside, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Hoboken,
Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications Home Dialysis
Services, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Humacao,
Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Illinois,
Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Indiana,
Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Irvington,
Inc.

	 	Delaware
	 
	 	 





Page 3









 





Exhibit [   ]



	 	 	 
	Dialysis Services	 	State of Incorporation
	 
	 	 
	Bio-Medical Applications of Jersey
City, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Kansas, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Kentucky, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Las Americas,
Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Long Beach,
Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Los Angeles,
Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Los Gatos, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Louisiana, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Maine, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Manchester,
Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Maryland, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Massachusetts,
Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Mayaguez, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Michigan, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Minnesota, Inc.

	 	Delaware






Page 4









 





Exhibit [   ]



	 	 	 
	Dialysis Services	 	State of Incorporation
	 
	 	 
	Bio-Medical Applications of Mission Hills, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Mississippi, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Missouri, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of MLK, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Nevada, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of New Hampshire, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of New Jersey, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of New Mexico, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of New York, Inc.

	 	Delaware
	 
	 	 
	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






Page 5









 





Exhibit [   ]




	 	 	 
	Dialysis Services	 	State of Incorporation
	 
	 	 
	Bio-Medical Applications
of Pine Brook, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of
Ponce, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Port
Orange, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of
Puerto Rico, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of
Rhode Island, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Rio
Piedras, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of San
Antonio, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of San
German, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of San
Juan, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of
South Carolina, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of
South Queens, 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
	 
	 	 





Page 6









 





Exhibit [   ]




	 	 	 
	Dialysis Services	 	State of Incorporation
	 
	 	 
	Bio-Medical Applications of Torrance, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Trenton, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Ukiah, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Union City, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Virginia, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of West Virginia, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Wisconsin, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical Applications of Whittier, Inc.

	 	Delaware
	 
	 	 
	Bio-Medical
Applications of Woonsocket, Inc.

	 	Delaware
	 
	 	 
	Conejo Valley Dialysis, Inc.

	 	Delaware
	 
	 	 
	Dialysis Services, Inc.

	 	Delaware
	 
	 	 
	Dialysis America, LLC.

	 	Alabama Georgia
	 
	 	 
	FMC Dialysis Services — Oregon, LLC

	 	Oregon
	 
	 	 
	Gulf Region Mobile Dialysis, Inc.

	 	Delaware
	 
	 	 
	Fresenius Management Services, Inc.

	 	Delaware
	 
	 	 
	Haemo-Stat, Inc.

	 	California
	 
	 	 
	Home Intensive Care, Inc.

	 	Delaware
	 
	 	 
	National Medical Care, Inc

	 	Delaware






Page 7









 





Exhibit [   ]





	 	 	 
	Dialysis Services	 	State of Incorporation
	 
	 	 
	Neomedica, Inc

	 	Delaware
	 
	 	 
	Qualicenters, Inc.

	 	Colorado
	 
	 	 
	San Diego Dialysis Services, Inc.

	 	Delaware
	 
	 	 
	Santa Barbara Community Dialysis Center,
Inc

	 	Delaware
	 
	 	 
	Willamette Valley Kidney Center, LLC

	 	Oregon






Page 8









 






Exhibit Q




	 	 	 
	Dialysis Products	 	 
	 
	 	 
	Fresenius USA, Inc

	 	Massachusetts
	 
	 	 
	Fresenius USA Home Dialysis, Inc

	 	Delaware
	 
	 	 
	Fresenius USA Marketing, Inc

	 	Delaware
	 
	 	 
	Fresenius USA of Puerto Rico, Inc.

	 	Delaware
	 
	 	 
	Fresenius USA Sales, Inc

	 	Massachusetts
	 
	 	 
	Life
Assist Medical Products Corp

	 	Puerto Rico
	 
	 	 
	NMC Medical Products, Inc

	 	Delaware
	 
	 	 
	Prime Medical, Inc.

	 	Delaware
	 
	 	 
	Renal Scientific Services, Inc.

	 	Delaware







Page 9









 








September       , 1999

Page 10




SCHEDULE II

(LIST OF TRANSACTION DOCUMENTS)




 









 





AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT




Dated as of September 27, 1999




NMC FUNDING CORPORATION,

as Transferor




LIST OF CLOSING DOCUMENTS




A. Transfer and Sale Documentation




          1. Amended and Restated Transfer and Administration Agreement (the “Amended and
Restated TAA”) dated as of September 27, 1999 among Enterprise Funding Corporation (“Enterprise”),
Compass US Acquisition LLC (“Compass”), NMC Funding Corporation (the “Transferor”), National
Medical Care, Inc., as collection agent (the “Collection Agent”), the Bank Investors, Westdeutsche
Landesbank Girozentrale, New York Branch (“WestLB”), as Administrative Agent, and Bank of America,
N.A. (“Bank of America”), as Administrative Agent and as Agent (#127126).




          2.
Fee Letter among the Transferor, Bank of America and Enterprise
(#128368).




          3. Fee Letter among the Transferor, WestLB and Compass (#129611).




          4. Amendment to the Parent Agreement (#129357).




          5. Assignment Agreement between Compass and Enterprise (#129431).




B. Opinions




          6. Opinion of Douglas G. Kott.




          7. Opinion of Arent Fox Kintner Plotkin & Kahn, Special Counsel to the Transferor.




          8. Opinion of Nutter McClennen & Fish, LLP, special Massachusetts counsel.




          9. Opinion of Rainer Runte, General Counsel of FMC.




 









 





C. Corporate Documents




          10. Good Standing Certificates for the Transferor from the Secretary of the
Commonwealth of Massachusetts and the Secretary of State of Delaware.




          11. Good Standing Certificates for the Collection Agent from the Secretary of the
Commonwealth of Massachusetts and the Secretary of State of Delaware.




          12. A Certificate of the Secretary of the Transferor substantially in the form of Exhibit
L of the TAA.




          13. A Certificate of the Secretary of the Collection Agent substantially in the form of
Exhibit L of the TAA.




          14. UCC-3 Amendments to the financing statements filed against the Transferor, filed
in the offices of the Town Clerk of Massachusetts and the Secretary of the Commonwealth of
Massachusetts (#130060).




2









 





September
     , 1999

Page 11




EXHIBIT A

(LEGAL PROCEEDINGS)




 









 





EXHIBIT A



LIST OF ACTIONS AND SUITS




Exhibit A

Page 1





 









 







[Excerpted from Fresenius Medical Care Holdings. Inc.’s Report filed on Form 10-Q filed with the
Securities Exchange Commission for the quarter ended June 30, 1999 (the “10-Q”). Defined terms not
capitalized herein have the meaning given to them in the 10-Q]




NOTE 5. COMMITMENTS AND CONTINGENCIES




     Contingent Non-NMC Liabilities of Grace New York (Now Known as Fresenius Medical Care
Holdings, Inc.)



     In connection with the Merger, Grace Chemicals has agreed to indemnify the Company and NMC
against all liabilities of the Company and its successors, whether relating to events occurring
before or after the Merger, other than liabilities arising from or relating to NMC operations.
After the Merger the Company will remain contingently liable for certain liabilities with respect
to pre-Merger matters that are not related to NMC operations. The Company believes that in view of
the nature of the non-NMC liabilities and the expected impact of the Merger on Grace Chemicals’
financial position, the risk of significant loss from non-NMC liabilities is remote.



     Were events to violate the tax-free nature of the Merger, the resulting tax liability would
be the obligation of the Company. Subject to representations by Grace Chemicals, the Company, and
Fresenius AG, Grace Chemicals has agreed to indemnify the Company for such a tax liability. If the
Company was not able to collect on the indemnity, the tax liability would have a material adverse
effect on the Company’s business, the financial condition of the Company and the results of
operations.



Legal Proceedings




     Government Investigations



     OIG Investigative Subpoenas



     In October 1995, NMC received five investigative subpoenas from the Office of the Inspector
General (“OIG”) of the Department of Health and Human Services. The subpoenas were issued in
connection with an investigation being conducted by the OIG, the U.S. Attorney for the District of
Massachusetts and others concerning possible violations of federal laws, including the
anti-kickback statutes and the False Claims Act (the “OIG Investigation”). The subpoenas call for
extensive document production relating to various aspects of NMC’s business.



     In connection with the OIG Investigation, the Company continues to receive additional
subpoenas directed to NMC or the Company to obtain supplemental information and documents
regarding the above-noted issues, or to clarify the scope of the original subpoenas.



     The Company is cooperating with the OIG Investigation in providing supplemental information
and documents. The Company believes that the government continues to review and evaluate the
voluminous information the Company has provided. As



Exhibit A

Page 2





 









 







indicated above, the government continues, from time to time, to seek supplementing and/or
clarifying information from the Company. The Company understands that the government has utilized a
grand jury to investigate these matters. The Company expects that this process will continue while
the government completes its evaluation of the issues.




     The OIG Investigation covers the following areas: (a) NMC’s dialysis services business
(“Dialysis Services”), principally relating to its Medical Director contracts and compensation;
(b) NMC’s treatment of credit balances resulting from overpayments received under the Medicare,
Medicaid, CHAMPUS and other government and commercial payors, its billing for home dialysis
services, and its payment of supplemental medical insurance premiums on behalf of indigent
patients; (c) NMC’s LifeChem laboratory subsidiary’s (“LifeChem”) business, including testing
procedures, marketing, customer relationships, competition, overpayments totaling approximately
$4.9 million that were received by LifeChem from the Medicare program with respect to laboratory
services rendered between 1989 and 1993, a 1997 review of dialysis facilities’ standing orders,
and the provision of discounts on products from NMC’s products division, grants, equipment and
entertainment to customers; and (d) NMC’s homecare division (“Homecare”) and, in particular,
information concerning intradialytic parenteral nutrition (“IDPN”) utilization, documentation of
claims and billing practices including various services, equipment and supplies and payments made
to third parties as compensation for administering IDPN therapy.



     The government has indicated that the areas identified above are not exclusive, and that it
may pursue additional areas. As noted, the penalties applicable under the anti-kickback statutes,
the U.S. Federal False Claims Act (the “False Claims Act”) and other federal and state statutes
and regulations applicable to NMC’s business can be substantial. While NMC asserts that it is able
to offer legal and/or factual defenses with respect to many of the areas the government has
identified, it is expected that the government will assert that NMC has violated multiple
statutory and regulatory provisions. Additionally, qui tam actions alleging that NMC submitted
false claims to the government have been filed under seal by former or current NMC employees or
other individuals who may have familiarity with one or more of the issues under investigation. As
noted, under the False Claims Act, any such private plaintiff could pursue an action against NMC
in the name of the U.S. at his or her own expense if the government declines to do so.



     Since October 1995 when the initial subpoenas were served NMC and the government have met
periodically to discuss issues in connection with the OIG Investigation, including theories of
liability. NMC and the government have been exploring the possibility of settling the matters
which are encompassed by the OIG Investigation and, as referenced below, have settled the
diagnostics investigation matter. There can be no assurance that any of the other matters subject
to the OIG Investigation will be settled. If however, one or more of the matters encompassed by
the OIG Investigation is settled, it may result in NMC acknowledging that its past practices
violated federal statutes, as well as NMC incurring substantial civil and criminal financial
penalties which could have a material adverse effect on the Company. If one or more of these
matters is not settled, the government may be expected to seek



Exhibit A

Page 3




 









 




substantial civil and criminal financial penalties and other sanctions including the suspension of
payments by, and the exclusion of NMC and its subsidiaries from, the Medicare program, Medicaid
program and other federal health care programs. See “Management’s Discussion and Analysis of
Financial Condition and Results of Operations — Contingencies.”




     Diagnostics Subpoena



     In October 1996, Biotrax International, Inc. (“Biotrax”) and NMC Diagnostics, Inc., (“DSI”)
both of which are subsidiaries of NMC, received a civil investigative subpoena from the OIG
concerning the possible submission of false or improper claims to, and their payment by, the
Medicare program. In May, 1999 the Company and the government entered into a settlement agreement
pursuant to which, among other things, the government has agreed to release the Company with
respect to this matter in exchange for a payment of approximately $16.8 million from the Company.



     Medical Director Compensation



     The government is investigating whether Dialysis Services compensation arrangements with its
Medical Directors constitute payments to induce referrals, which would be illegal under the
anti-kickback statutes, rather than payment for services rendered. Dialysis Services compensated
the substantial majority of its Medical Directors on the basis of a percentage of the earnings of
the dialysis center for which the Medical Director was responsible from the inception of NMC’s
predecessor in 1972 until January 1, 1995, the effective date of
Stark II. Under the arrangements
in effect prior to January 1, 1995, the compensation paid to Medical Directors was adjusted to
include “add backs.” which represented a portion of the profit earned by NMC’s Medical Products
Group (“MPG”) on products purchased by the Medical
Director’s facility from MPG and (until January 1, 1992) a portion of the profit earned by LifeChem on laboratory services provided to patients at
the Medical Director’s facility. These adjustments were designed to allocate a profit factor to
each dialysis center relating to the profits that could have been realized by the center if it had
provided the items and services directly rather than through a subsidiary of NMC. The percentage of
profits paid to any specific Medical Director was reached through negotiation, and was typically a
provision of a multi-year consulting agreement.



     To comply with provisions of OBRA 93 (as hereinafter defined) known as “Stark II” if
Designated Health Services (as defined in Stark II) are involved, Medical Director compensation
must not exceed fair market value and may not take into account the volume or value of referrals
or other business generated between the parties. Since January 1, 1995, Dialysis Services has
compensated its Medical Directors on a fixed compensation arrangement intended to comply with the
requirements of Stark II. In renegotiating its Medical Director compensation arrangements in
connection with Stark II, Dialysis Services took and continues to take account of the
compensation levels paid to its Medical Directors in prior years.



Exhibit A

Page 4




 









 





     Certain government representatives have expressed the view in meetings with counsel for NMC
that arrangements where the Medical Director was or is paid amounts
in excess of the “fair market
value” of the services rendered may evidence illegal payments to induce referrals, and that hourly
compensation is a relevant measure for evaluating the “fair market value” of the services. Dialysis
Services does not compensate its Medical Directors on an hourly basis and has asserted to the
government that hourly compensation is not a determinative measure of fair market value. Although
the Company believes that the compensation paid to its Medical Directors is generally reflective of
fair market value, there can be no assurances that the government will agree with this position or
that the Company ultimately will be able to defend its position successfully. Because of the wide
variation in local market factors and in the profit percentage contractually negotiated between
Dialysis Services and its Medical Directors prior to January 1, 1995, there is a wide variation in
the amounts that have been paid to Medical Directors.



     As a result, the compensation that Dialysis Services has paid and is continuing to pay to a
material number of its Medical Directors could be viewed by the government as being in excess of
“fair market value,” both in absolute terms and in terms of hourly compensation. NMC has asserted
to the government that its compensation arrangements do not constitute Illegal payments to induce
referrals. NMC has also asserted to the government that OIG auditors repeatedly reviewed NMC’s
compensation arrangements with its Medical Directors in connection with their audits of the costs
claimed by Dialysis Services that the OIG stated in its audit reports that, with the exception of
certain technical issues, NMC had complied with applicable Medicare laws and regulations
pertaining to the ESRD program; and that NMC reasonably relied on these audit reports in
concluding that its program for or compensating Medical Directors was
lawful. There has been no
indication that the government will accept NMC’s assertions
concerning the legality of NMC’s arrangements generally or
NMC’s assertion that NMC reasonably relied on OIG audits, or
that the government will not focus on specific arrangements that Dialysis Services has made with one or
more Medical Directors and assert that those specific arrangements were or are unlawful.



     The government is also investigating whether Dialysis Services profit sharing arrangements
with its Medical Directors influenced them to order unnecessary ancillary services and items. NMC
has asserted to the government that the rate of utilization of ancillary services and items by its
Medical Directors is reasonable and that it did not provide illegal inducements to Medical
Directors to order ancillary services and items.



     Credit Balances



     In the ordinary course of business, medical service providers like Dialysis Services receive
overpayments from Medicare intermediaries and other payors for services that they provide to
patients. Medicare intermediaries commonly direct such providers to notify them of the
overpayment and not remit such amounts to the intermediary by check or otherwise unless
specifically requested to do so. In 1992, the Health Care Financing Administration (“HCFA”)
adopted a regulation requiring certain Medicare providers, including dialysis centers, to file a
quarterly form listing unrecouped overpayments with the Medicare intermediary responsible for
reimbursing the provider.



Exhibit A

Page 5





 









 







The first
such filing was required to be made as of June 30, 1992 for the period beginning with
the initial date that the provider participated in the Medicare program and ending on June
30, 1992.




     The government is investigating whether Dialysis Services intentionally understated the
Medicare credit balance reflected on its books, and records for the period ending June 30, 1992 by
reversing entries out of its credit balance account and taking overpayments into income in
anticipation of the institution of the new filing requirement. Dialysis Services policy was to
notify Medicare intermediaries in writing of overpayments upon receipt and to maintain unrecouped
Medicare overpayments as credit balances on the books and records of Dialysis Services for four
years; overpayments not recouped by Medicare within four years would be reversed from the credit
balance account and would be available to be taken into income. NMC asserts that Medicare
overpayments that have not been recouped by Medicare within four years are not subject to recovery
under applicable regulations and that its initial filing with the intermediaries disclosed the
credit balance on the books and records of Dialysis Services as shown in accordance with its
policy, but there can be no assurance that the government will accept NMC’s views. The government
has inquired whether other divisions including Homecare, LifeChem and DSI have appropriately
treated Medicare credit balances as well as credit balances of other
payors.



     The government is also investigating whether Dialysis Services failed to disclose Medicare
overpayments that resulted from Dialysis Services obligation to
rebill commercial payors for
amounts originally billed to Medicare under HCFA’s Initial implementation of the Omnibus Budget
Reconciliation Act of 1993 (“OBRA 93”) amendments to the
secondary payor provisions of the Medicare
Act. Dialysis Services experienced delays in reporting a material amount of overpayments after the
Implementation of the OBRA 93 amendments. NMC asserts that most of these delays were the result of
the substantial administrative burdens placed on Dialysis Services as a consequence of the
changing and inconsistent instructions issued by HCFA with respect to the OBRA 93 amendments and
were not intentional. Substantially all overpayments resulting from the rebilling effort associated
with the OBRA 93 amendments have now been reported. Procedures are in place that are designed to
ensure that subsequent overpayments resulting from the OBRA 93 amendments will be reported on a
timely basis.



Exhibit A

Page 6




 









 





     LifeChem made these disclosures to the government as part of an application to be admitted
to a voluntary disclosure program begun by the government in mid-1995. At the time of the
disclosures, LifeChem tendered repayment to the government of the $4.9 million in overpayments.
After the OIG Investigation was announced, the government indicated that LifeChem had not been
accepted into its voluntary disclosure program. The government has deposited the $4.9 million
check with NMC’s approval. The matters disclosed in LifeChem’s September 22, 1995 voluntary
disclosure are a subject of the OIG Investigation.



     On June 7, 1996, LifeChem voluntarily disclosed an additional billing problem to the
government that had resulted in LifeChem’s receipt of between $40,000 and $160,000 in overpayments
for laboratory services rendered in 1991. LifeChem advised the government that this overpayment
resulted from the submission for payment of a computer billing tape that had not been subjected to
a “billing rules” program designed to eliminate requests for payments for laboratory tests that are
included in the Composite Rate and that were not eligible for separate reimbursement. LifeChem also
advised the government that there may have been additional instances during the period from 1990 to
1992 when other overpayments were received as a result of the submission of computer billing tapes
containing similar errors and that it was in the process of determining whether such additional
overpayments were received. On June 21, 1996, LifeChem advised the government that the 1991 billing
problem disclosed on June 7, 1996 resulted in an overpayment of approximately $112,000. LifeChem
also advised the government that certain records suggested instances in July 1990 and August 31
through September 11, 1990, when billing tapes may have been
processed without rules processing.
LifeChem continued its effort to determine whether any other
overpayments  occurred relating to
the “billing rules” problem and, in March 1997, advised the government that an additional
overpayment of approximately $260,000 was made by Medicare.



     On
April 6, 1999, LifeChem voluntarily disclosed an additional billing problem to the
government that resulted in LifeChem’s receipt of overpayments for laboratory services rendered
between 1994 and 1999. In 1994, as a result of the advice of a billing consultant, LifeChem
began to bill for platelet testing performed in connection with complete blood counts. This
advice was confirmed by the consultant in 1997 as part of a review performed by the consultant
under the auspices of LifeChem’s then outside counsel. In 1999, however, an internal inquiry
resulted in a reexamination of this advice and LifeChem determined that the prior advice was
incorrect. As a result LifeChem voluntarily disclosed and repaid the overpayment to the
government in the amount of $8.6 million. LifeChem also has notified the government of the
disclosure. There can be no assurances that the government will agree that LifeChem’s
disclosure should not result in a sanction beyond repayment of the
overpayment amount.



     Capitation for routine tests and panel design. In October 1994, the OIG issued a special
fraud alert in which it stated its view that the industry practice of offering to perform or
performing the routine tests covered by the composite rate payment method (the “Composite
Rate”) at a price below fair market value, coupled with an agreement by a dialysis center to
refer all or most of its non-Composite Rate tests to the laboratory,



Exhibit A

Page 8




 









 





     Supplemental Medical Insurance



     Dialysis Services provided grants or loans for the payment of premiums for supplemental
medical insurance (under which Medicare Part B coverage is provided) on behalf of a small
percentage of its patients who are financially needy. The practice of providing loans or grants
for the payment of supplemental medical insurance premiums by NMC was one of the subjects of
review by the government as part of the OIG Investigation.



     The Government, however, advised the Company orally that it is no longer pursuing this
issue. Furthermore, as a result of the passage of HIPAA, the Company terminated making such
payments on behalf of its patients. Instead, the Company, together with other representatives
of the industry, obtained an advisory opinion from the OIG, whereby, consistent with specified
conditions, the Company and other similarly situated providers may make contributions to a
non-profit organization that has volunteered to make these payments on behalf of indigent ESRD
patients, Including patients of the Company. In addition, the government has indicated that it
is investigating the method by which NMC made Medigap payments on behalf of its indigent
patients.



     Overpayments for Home Dialysis Services



     NMC acquired Home Intensive Care, Inc. (“HIC”), an in-center and home dialysis service
provider, in 1993. At the time of the acquisition, HIC was the subject of a claim by HCFA that HIC
had received payments for home dialysis services in excess of the Medicare reasonable charge for
services rendered prior to February 1, 1990. NMC settled the HCFA claim against HIC in 1994. The
government is investigating whether the settlement concerning the alleged overpayments made to
HIC resolved all issues relating to such alleged overpayments. The government is also investigating
Whether an NMC subsidiary, Home Dialysis Services, Inc. (“HDS”), received payments similar to the
payments that HIC received, and whether HDS improperly billed for home dialysis services in excess
of the monthly cost cap for services rendered on or after February 1, 1990. The government is
investigating whether NMC was overpaid for services rendered. NMC asserts that the billings by HDS
were proper, but there can be no assurance that the government will accept NMC’s view.



     LifeChem



     Overpayments. On September 22, 1995, LifeChem voluntarily disclosed certain billing
problems to the government that had resulted In LifeChem’s receipt of approximately $4.9
million in overpayments from the Medicare program for laboratory services rendered between
1989 and 1993. LifeChem asserts that most of these overpayments relate to errors caused by a
change in LifeChem’s computer systems and that the remainder of the overpayments were the
result of the incorrect practice of billing for a complete blood count with differential when
only a complete blood count was ordered and performed, and of the incorrect practice of
billing for a complete blood count when only a hemoglobin or hematocrit test was ordered.
LifeChem asserts that the overpayments it received were not caused by fraudulent activity, but
there can be no assurance that the government will accept LifeChem’s view.



Exhibit A

Page 7




 









 




violates the anti-kickback statutes. In response to this alert, LifeChem changed its practices
with respect to testing covered by the Composite Rate to increase the amount charged to both
Dialysis Services and third-party dialysis centers and reduce the number of tests provided for the
fixed rate. The government is investigating LifeChem’s practices with respect to these tests.




     Benefits provided to dialysis centers and persons associated with dialysis centers. The
government is investigating whether Dialysis Services or any third-party dialysis center or any
person associated with any such center was provided with benefits in order to induce them to use
LifeChem services. Such benefits could include, for example, discounts on products or supplies,
the provision of computer equipment, the provision of money for the purchase of computer
equipment, the provision of research grants and the provision of entertainment to customers. NMC
has identified certain instances in which benefits were provided to customers who purchased
medical products from NMC Medical Products, Inc., NMC’s products
company, and used LifeChem’s
laboratory services. The government may assert that the provision of such benefits violates,
among other things, the anti-kickback statutes. In December 1998, the former Vice President of
Sales responsible for NMC’s laboratory and products divisions plead guilty to the payment of
illegal kickbacks to obtain laboratory business for LifeChem. In February 1999, the former
President of NMC Medical Products, Inc. was indicted by the government for the payment of these
same and/or similar kickbacks.



     Business and testing practices. As noted above, the government has identified a number of
specific categories of documents that it is requiring NMC to produce in connection with LifeChem
business and testing practices. In addition to documents relating to the areas discussed above,
the government has also required LifeChem to produce documents relating to the equipment and
systems used by LifeChem in performing and billing for clinical laboratory blood tests, the design
of the test panels offered and equisition forms used by LifeChem, the utilization rate for
certain tests performed by LifeChem, recommendations concerning diagnostic codes to be used in
ordering tests for patients with given illnesses or conditions, internal and external audits and
Investigations relating to LifeChem’s billing and testing. Subsequently, the government served an
investigative subpoena for documents concerning the Company’s 1997 review of dialysis facilities’
standing orders, and responsive documents were provided. The government has served investigative
subpoenas requiring NMC to update its production on the above issues and to produce contract files
for twenty-three identified dialysis clinic customers. The government is investigating each of
these areas, and asserts that LifeChem and/or NMC have violated the False Claims Act and/or the
Anti-Kickback Statute through the test ordering, paneling, requisitioning, utilization, coding,
billing and auditing practices described above. In June 1999, a former Vice President of Marketing
of NMC Medical Products, Inc. plead guilty to a charge of conspiracy to defraud Medicare in
connection with the marketing of certain hepatitis tests.



     Intradialytic Parenteral Nutrition



     Administration kits. One of the activities of SRM is to provide IDPN therapy to dialysis
patients at both NMC-owned facilities and at facilities owned by other providers.



Exhibit A

Page 9




 









 




IDPN therapy was provided by Homecare prior to its divestiture. IDPN therapy is typically
provided to the patient 12-13 times per month during dialysis
treatment. Bills are submitted
to Medicare on a monthly basis and include separate claims for reimbursement for supplies,
including, among other things, nutritional solutions, administration kits and infusion pumps.
In February 1991, the Medicare carrier responsible for processing Homecare’s IDPN claims
issued a Medicare advisory to all parenteral and enteral nutrition suppliers announcing a
coding change for reimbursement of administration kits provided in connection with IDPN
therapy for claims filed for items provided on or after April 1, 1991. The Medicare allowance
for administration kits during this period was approximately $625 per month per patient. The
advisory stated that IDPN providers were to indicate the “total number of actual days” when
administration kits were “used,” instead of indicating that a one-month supply of
administration kits had been provided. In response, Homecare billed for administration kits on
the basis of the number of days that the patient was on an IDPN treatment program during the
billing period, which typically represented the entire month, as opposed to the number of days
the treatment was actually administered. During the period from April 1991 to June 1992,
Homecare had an average of approximately 1,200 IDPN patients on service.




     In May 1992, the carrier issued another Medicare advisory to all PEN suppliers in which
it stated that it had come to the carrier’s attention that some IDPN suppliers had not been
prorating their billing for administration kits used by IDPN patients and that providers
should not bill for administration kits on the basis of the number of days that the patient
was on an IDPN treatment program during the billing period. The advisory stated further that
the carrier would be conducting “a special study to determine whether or not overpayments
have occurred as a result of incorrect billing” and that “if overpayments have resulted,
providers that have incorrectly billed” would “be contacted so that refunds can be
recovered.” Homecare revised its billing practices in response to
this advisory for claims filed for items provided or after July 1,
1992. Home care was
not asked to refund any amounts relating to its billings for administration kits following
the issuance of the second advisory.



     The government asserts that NMC submitted false claims for administration kits during
the period from 1988 to June 30, 1996, and that Homecare’s billing for administration kits
during this period violated, among other things, the False Claims Act.



     Infusion
Pumps and IV Poles. During the time period covered by the
subpoenas,  Medicare
regulations permitted IDPN providers to bill Medicare for the infusion pumps and, until 1992,
for IV poles provided to IDPN patients in connection with the administration of IDPN
treatments. These regulations do not expressly specify that a particular pump and IV pole be
dedicated to a specific patient, and NMC asserts that these regulations permitted Homecare to
bill Medicare for an infusion pump and IV pole so long as the patient was infused using a
pump and IV pole. Despite the absence of an express regulatory specification, Homecare
developed a policy to deliver to a dialysis center a dedicated infusion pump and IV pole for
each patient, although the Company cannot represent that Homecare followed this policy in
every instance. The government is investigating the propriety of Homecare’s billings for
infusion pumps and IV poles and asserts that Homecare’s billings violate the False Claims
Act.



Exhibit A

Page 10





 











 




     As noted above, under the new policies published by HCFA with respect to IDPN therapy, the
Company has not been able to bill for infusion pumps after July 1, 1996. The government
discontinued reimbursement for IV poles in 1992.


     “Hang fees” and other payments. IDPN therapy is typically provided to the patient during
dialysis by personnel employed by the dialysis center treating the patient with supplies provided
and billed to Medicare by Homecare in accordance with the Medicare parenteral nutrition supplier
rules. In order to compensate dialysis centers for the costs incurred in administering IDPN
therapy and monitoring the patient during therapy, Homecare followed the practice common in the
industry of paying a “hang fee” to the center. Dialysis centers are responsible for reporting such
fees to HCFA on their cost reports. For Dialysis Services dialysis centers, the fee was $30 per
administration, based upon internal Dialysis Services cost calculations. For third-party dialysis
centers, the fee was negotiated with each center, typically pursuant to a written contract, and
ranged from $15 to $65 per administration. The Company has identified instances in which other
payments and amounts beyond that reflected in a contract were paid to these third-party centers.
The Company has stopped paying “hang fees” to both Dialysis Services and third-party facilities.


     In July 1993, the OIG issued a management advisory alert to HCFA in which it stated that
“hang fees” and other payments made by suppliers of IDPN to dialysis centers “appear to be illegal
as well as unreasonably high.” The government is investigating the nature and extent of the “hang
fees” and other payments made by Homecare as well as payments by Homecare to physicians whose
patients have received IDPN therapy. The government asserts that the payments by Homecare to
dialysis centers violate, among other things, the anti-kickback statutes.


     Utilization of IDPN. Since 1984, when HCFA determined that Medicare should cover IDPN and
other parenteral nutrition therapies, the Company has been an industry leader in identifying
situations in which IDPN therapy is beneficial to end-stage renal disease (“ESRD”) patients. It is
the policy of the Company to seek Medicare reimbursement for IDPN therapy only when it is
prescribed by a patient’s treating physician and when it believes that the circumstances satisfy
the requirements published by HCFA and its carrier agents. Prior to 1994, HCFA and its carriers
approved for payment more than 90% of the IDPN claims submitted by Homecare. After 1993, the rate
of approval for Medicare reimbursement for IDPN claims submitted by Homecare for new patients and
by the infusion industry in general, fell to approximately 9%. The Company contends that the
reduction in rates of approval occurred because HCFA and its carriers implemented an unauthorized
change in coverage policy without giving notice to providers. While NMC continued to offer IDPN to
patients pursuant to the prescription of the patients’ treating physicians and to submit claims
for Medicare reimbursement when it believed the requirements stated in HCFA’s published
regulations were satisfied, other providers responded to the drop in the approval rate for new
Medicare IDPN patients by abandoning the Medicare IDPN business, cutting back on the number of
Medicare patients to whom they provide IDPN, or declining to add new Medicare patients. Beginning
in 1994 the number of patients to whom NMC provided IDPN increased as a result.


Exhibit A
Page 11







 





     The government is investigating the utilization rate of IDPN therapy among NMC
patients, whether NMC submitted IDPN claims to Medicare for patients who were not eligible for
coverage, and whether documentation of eligibility was adequate. NMC asserts that the utilization
rate of IDPN therapy among its dialysis patients, which, in 1995, averaged less than 3.5%, is the
result of the factors discussed above and that it is the policy of Homecare to seek Medicare
reimbursement for IDPN therapy prescribed by the patients’ treating physician in accordance with
the requirements published by HCFA and its carrier agents. There can be no assurance that the
government will accept NMC’s view. The government asserts that Homecare submitted IDPN claims for
individuals who were not eligible for coverage and/or with inadequate documentation of eligibility.



     The Company believes that it has presented to the government substantial defenses which
support NMC’s interpretation of coverage rules of IDPN as HCFA and its carriers published and
explained them, and which demonstrated that HCFA and its carriers improperly implemented
unpublished, more restrictive criteria after 1993. Nevertheless, the government is expected to
assert in the OIG Investigation that, on a widespread basis, NMC submitted and received payments
on claims for IDPN to Medicare for patients who were not eligible for coverage, and for whom the
documentation of eligibility was inadequate.



     In addition, the government asserts that, in a substantial number of cases, documentation of
eligibility was false or inaccurate. With respect to some claims, the Company has determined that
false or inaccurate documentation was submitted, deliberately
or otherwise. The
government continues to investigate the IDPN claims.



     Qui Tam Actions



     The Company and NMC is aware that certain qui tam actions have been filed in various
jurisdictions. Each of these actions is under seal and in each action, pursuant to court order the
seal has been modified to permit the Company, NMC and other affiliated defendants to disclose the
complaint to any relevant investors, financial institutions and/or underwriters, their successors
and assigns and their respective counsel and to disclose the allegations in the complaints in
their respective U.S. Securities and Exchange Commission (the “SEC” or the “Commission”) and New
York Stock Exchange (“NYSE”) periodically required filings.



     A
qui tam action was filed in the United States District Court for the
Southern District of
Florida in June 1994, amended on July 8, 1996 and disclosed to the Company on July 10, 1996. It
alleges, among other things, that Grace Chemicals and NMC violated the False Claims Act in
connection with certain billing practices regarding IDPN and the administration of EPO and that as
a result of this allegedly wrongful conduct, the United States suffered actual damages in excess
of $200 million. The Amended Complaint also seeks the imposition of a constructive trust on the
proceeds of the NMC dividend to Grace Chemicals for the benefit of the United States on the ground
that the Merger constitutes a fraudulent conveyance that will render NMC unable to satisfy the
claims asserted in the Amended Complaint.



Exhibit A
Page 12









 




     A qui tam action was filed in the United States District Court for the Southern
District of Florida in December 1994 and disclosed to the Company on April 16, 1999. It alleges,
among other things, that NMC violated the False Claims Act in connection with certain billing
practices regarding IDPN and the cost relating thereto. The second qui tam was filed by the same
relator which filed the first qui tam and covers the same services covered by the first qui tam
complaint.


     A qui tam action was filed in the United States District Court for the Middle District of
Florida in 1995 and disclosed to the Company on or before November 7, 1996. It alleges, among
other things, that NMC and certain NMC subsidiaries violated the False Claims Act in connection
with the alleged retention of over-payments made under the Medicare program, the alleged
submission of claims in violation of applicable cost caps and the payment of supplemental Medicare
insurance premiums as an alleged inducement to patients to obtain dialysis products and services
from NMC. The complaint alleges that as a result of this allegedly wrongful conduct, the United
States suffered damages in excess of $10 million including applicable fines.


     A qui tam action was filed in the United States District Court for the Eastern District of
Pennsylvania in May 1995 and was disclosed to the Company in August 1997. It alleges, among other
things, that Biotrax violated the False Claims Act in connection with its submission of claims to
the Medicare program for diagnostic tests and induced overutilization of such tests in the medical
community through improper marketing practices also in violation of the False Claims Act. This qui
tam action was dismissed as part of the diagnostics civil investigation settlement reached in May
1999. See “Note 5 -Commitments and Contingencies — Diagnostics Subpoena.


     A
qui tam action was filed in the United States District Court for the Eastern District of
Pennsylvania in August 1996 and was disclosed to the Company in
August 1997. It alleges, among
other things, that Biotrax and NMC Diagnostic Services induced overutilization of diagnostic tests
by several named and unnamed physician defendants in the local medical community, through improper
marketing practices and fee arrangements, in violation of the False
Claims Act. This qui tam action
was dismissed as part of the diagnostics civil investigation settlement reached in May 1999. See
“Note 5 — Commitments and Contingencies — Diagnostics Subpoena.”


     A qui tam action was filed in the United States District Court for the Eastern District of
Pennsylvania in November 1996 and was disclosed to the Company in August 1997. It alleges, among
other things, that NMC, DSI and Biotrax violated the False Claims Act in connection with the
submission of claims to the Medicare program by improperly upcoding and otherwise billing for
various diagnostic tests. This qui tam action was dismissed as part of the diagnostics civil
investigation settlement reached in May 1999. See “Note 5 — Commitments and Contingencies —
Diagnostics Subpoena.”


     A qui tam action was filed in the United States District Court for the District of Delaware
in January 1997 and was disclosed to the Company in September 1997. It alleges, among other
things, that NMC and Biotrax violated the False Claims Act in connection with the submission of
claims to the Medicare program for diagnostic tests,


Exhibit A
Page 13







 




and induced overutilization of such tests through improper marketing practices which
provided impermissible incentives to health care providers to order these tests. This qui tam
action was dismissed as part of the diagnostics civil investigation settlement reached in May
1999. See “Note 5 — Commitments and Contingencies — Diagnostics Subpoena.”




     A qui tam action was filed in the United States District Court for the District of New
Jersey in February 1997 and was disclosed to the Company in September 1997. It alleges, among
other things, that DSI and NMC violated the False Claims Act in connection with the submission
of claims to the Medicare program for reimbursement for diagnostic tests, by causing unnamed
physicians to overutilize these tests though a variety of fee arrangements and other
impermissible inducements. This qui tam action was dismissed as part of the diagnostics civil
investigation settlement reached in May 1999. See “Note 5 — Commitments and Contingencies —
Diagnostics Subpoena.”



     A qui tam was filed in the United States District Court for the District of Massachusetts
in 1994 and was disclosed to the Company in February 1999. It alleges among other things that
NMC violated the False Claims Act and the Anti-Kickback Statute in connection with certain
billing and documentation practices regarding IDPN therapy, home oxygen therapy and certain
medical billings in NMC’s Chicago office.



     Each of the qui tam complaints asserts that as a result of the allegedly wrongful conduct,
the United States suffered damages and that the defendants are liable to the United States for
three times the amount of the alleged damages plus civil penalties of up to $10,000 per false
claim. An adverse result in any of the qui tam actions could have a material adverse effect on
the Company’s business, financial condition or results of operations.



OIG Agreements




     As a result of discussions with representatives of the United States in connection with the
OIG Investigation, certain agreements (the “OIG Agreements”) have been entered into to guarantee
the payment of any obligations of NMC to the United States (an “Obligation”) relating to or
arising out of the OIG Investigation and the qui tam action filed in the Southern District of
Florida (the “Government Claims”). For the purposes of the OIG Agreements, an Obligation is (a)
a liability or obligation of NMC to the United States in respect of a Government Claim pursuant
to a court order (i) which is final and nonappealable or (ii) the enforcement of which has not
been stayed pending appeal or (b) a liability or obligation agreed to be an Obligation in a
settlement agreement executed by Fresenius Medical Care, the Company or NMC, on the one hand,
and the United States, on the other hand. As stated elsewhere herein, the outcome of the OIG
Investigation cannot be predicted.



     Pursuant to the OIG Agreements, upon consummation of the Merger, FMC, the Company and NMC
provided the United States with a joint and several unconditional guarantee of payment when due
of all Obligations (the “Primary Guarantee”). As credit support for this guarantee, NMC
delivered an irrevocable standby letter of credit in the amount of $150 million. The United
States will return such letter of credit (or any renewal




Exhibit A
Page 14









 







or replacement) for cancellation when all Obligations have been paid in full or it is
determined that NMC has no liability in respect of the Government Claims. Under the terms of the
Merger, any potential resulting monetary liability has been retained
by NMC, and the Company has
indemnified Grace Chemicals against all potential liability arising from or relating to the OIG
Investigation.




     FMC and the Company and the United States state in the OIG Agreements that they will
negotiate in good faith to attempt to arrive at a consensual resolution of the Government Claims
and, in the context of such negotiations, will negotiate in good faith as to the need for any
restructuring of the payment of any Obligations arising under such resolution, taking into account
the ability of FMC and the Company to pay the Obligations. The OIG Agreements state that the
foregoing statements shall not be construed to obligate any person to enter into any settlement of
the Government Claims or to agree to a structured settlement. Moreover, the OIG Agreements state
that the statements described in the first sentence of this paragraph are precatory and statements
of intent only and that (a) compliance by the United States with such provisions is not a
condition or defense to the obligations of FMC and the Company under the OIG Agreements and (b)
breach of such provisions by the United States cannot and will not be
raised by FMC and the
Company to excuse performance under the OIG Agreements. Neither the entering into of the OIG
Agreements nor the providing of the Primary Guarantee and the $150 million letter of credit is an
admission of liability by any party with respect to the OIG Investigation, nor does it indicate
the liability, if any, which may result therefrom.



     The foregoing describes the material terms of the OIG Agreements, copies of which were
previously filed with the Commission and copies of which may be examined without charge at the
public reference facilities maintained by the Commission at
Room 1024, 450 Fifth Street, N.W.
Washington, D.C. 20549, and at the Regional Offices of the Commission located at Suite 1400,
Citicorp Center, 500 West Madison Street, Chicago, Illinois 60661-2551 and Room 1300, 7 World
Trade Center, New York, New York 10048. Copies of such material will also be made available by mail
from the Public Reference Branch of the Commission at 450 Fifth
Street, N.W. Washington, D.C.
20549, at prescribed rates. The foregoing description does not purport to be complete and is
qualified in its entirety by reference to such agreements.



     An adverse determination with respect to any of the issues addressed by the subpoenas, or
any of the other issues that have been or may be identified by the government, could result in
the payment of substantial fines, penalties and forfeitures, the suspension of payments or
exclusion of the Company or one or more of its subsidiaries from the Medicare program and other
federal programs, and changes in billing and other practices that could adversely affect the
Company’s revenues. Any such result could have a material adverse effect on the Company’s
business, financial condition and results of operations.



     Omnibus Budget Reconciliation Act of 1993



     OBRA 93 affected the payment of benefits under Medicare and employer health plans for
certain eligible ESRD patients. In July 1994, HCFA issued an instruction to



Exhibit A
Page 15









 




Medicare claims processors to the effect that Medicare benefits for the patients affected
by OBRA 93 would be subject to a new 18-month “coordination of benefits” period. This instruction
had a positive impact on NMC’s dialysis revenues because, during the 18-month coordination of
benefits period, patients’ employer health plans were responsible for payment, which was
generally at rates higher than that provided under Medicare.


     In April 1995, HCFA issued a new instruction, reversing its original instruction in a
manner that would substantially diminish the positive effect of the original instruction on
NMC’s dialysis business. HCFA further proposed that its new instruction be effective retroactive
to August 1993, the effective date of OBRA 93.


     NMC ceased to recognize the incremental revenue realized under the original Program
Memorandum as of July 1, 1995, but it continued to bill employer health plans as primary payors
for patients affected by OBRA 93 through December 31, 1995. As of January 1, 1996, NMC commenced
billing Medicare as primary payor for dual eligible ESRD patients affected by OBRA 93, and then
began to rebill in compliance with the revised policy for services rendered between-April 24 and
December 31, 1995.


     On May 5, 1995, NMC filed a complaint in the U.S. District Court for the District of Columbia
(National Medical Care, Inc. and Bio-Medical Applications of Colorado, Inc. d/b/a Northern
Colorado Kidney Center v. Shalala, C.A. No. 95-0860 (WBB)) seeking to preclude HCFA from
retroactively enforcing its April 24, 1995 implementation of the OBRA 93 provisions relating to
the coordination of benefits for dual eligible ESRD patients. On May 9, 1995, NMC moved for a
preliminary injunction to preclude HCFA from enforcing its new policy retroactively, that is, to
billings for services provided between August 10, 1993 and April 23, 1995. On June 6, 1995, the
court granted NMC’s request for a preliminary injunction and in December of 1996, NMC moved for
partial summary judgment seeking a declaration from the Court that HCFA’s retroactive
application of the April 1995 rule was legally invalid.
HCFA cross moved for summary judgment on the grounds that the April 1995 rule was validly
applied prospectively. In January 1998, the court granted NMC’s motion for partial summary
judgment and entered a declaratory judgment in favor of NMC, holding HCFA’s retroactive
application of the April 1995 rule legally invalid, and based on its finding, the Court also
permanently enjoined HCFA from enforcing and applying the April 1995 rule retroactively against
NMC. The Court took no action on HCFA’s motion for summary judgment pending completion of
outstanding discovery. On October 5, 1998 NMC filed it’s own motion for summary judgment
requesting that the Court declare HCFA’s prospective application of the April 1995 rule invalid
and permanently enjoin HCFA from prospectively enforcing and applying the April 1995 rule. The
Court has not yet ruled on the parties’ motions. HCFA elected not to appeal from the Court’s June
1995 and January 1998 orders. HCFA may, however, appeal all rulings at the conclusion of the
litigation. If HCFA should successfully appeal so that the revised interpretation would be applied
retroactively, Dialysis Services may be required to refund the payments received from employer
health plans for services provided after August 10, 1993 under HCFA’s original implementation, and
to re-bill Medicare for the same services, which would result in a net loss to Dialysis Services
of approximately $120 million attributable to all periods prior to December 31, 1995. Also, in
such event, the Company’s business, financial position and results of operations would be
materially adversely affected.


Exhibit A
Page 16







 





     Intradialytic Parenteral Nutrition Coverage Issues



     SRM administers IDPN therapy to chronic dialysis patients who suffer from severe
gastrointestinal malfunctions. IDPN therapy was provided by Homecare prior to its divestiture.
After 1993, Medicare claims processors sharply reduced the number of IDPN claims approved for
payment as compared to prior periods. NMC believes that the reduction in IDPN claims represented an
unauthorized policy coverage change. Accordingly, NMC and other IDPN providers pursued various
administrative and legal remedies, including administrative appeals, to address this reduction.



     In November 1995, NMC filed a complaint in the U.S. District Court for the Middle District of
Pennsylvania seeking a declaratory judgment and injunctive relief to prevent the implementation of
this policy coverage change. (National Medical Care, Inc. v. Shalala, 3:CV-95-1922 (RPC)).
Subsequently, the District Court affirmed a prior report of the magistrate judge dismissing NMC’s
complaint, without considering any substantive claims, on the grounds that the underlying cause of
action should be submitted fully to the administrative review processes available under the
Medicare Act. NMC decided not to appeal the Court’s decision, but rather, to pursue the claims
through the available administrative processes.



     NMC was successful in pursuing these claims through the administrative process, receiving
favorable decisions from Administrative Law Judges in more than 80% of its cases. In early 1998, a
group of claims which had been ruled on favorably were remanded by the Medicare Appeals Council to
a single Administrative Law Judge (the “ALJ”) with
extensive instructions concerning the review of
these decisions. A hearing was scheduled on the remanded claims to take place in July, but later
postponed until October 1998.



     Prior
to the July hearing date, the United States Attorney for the District of Massachusetts requested that the hearing be
stayed pending resolution of the OIG Investigation, on the basis that proceeding could adversely
effect the government’s investigation as well as the government’s efforts to confirm its belief
that these claims are false. Prior to the ALJ issuing a decision on the stay request, the U.S.
Attorney’s Office requested that NMC agree to a stay in the proceedings in order to achieve a
potential resolution of the IDPN claims subject to the OIG Investigation as well as those which are
subject to the administrative appeals process. NMC agreed to this request, and together with the
U.S. Attorney’s Office requested a stay. The ALJ agreed to this request in order to allow the
parties the opportunity to resolve both the IDPN claims which are the subject of the OIG
Investigation and the IDPN claims which are the subject of the administrative proceedings. In March
1999 negotiations between NMC and the U.S. Attorney’s Office failed to progress and NMC requested
that the stay be lifted. The ALJ agreed to NMC’s request and on April 19, 1999 the ALJ hearing
began. The hearing process is expected to proceed for several months. At the same time, NMC and the
U.S. Attorney’s Office are continuing to discuss potential settlement of both the claims relating
to the OIG Investigation and the claims which are subject to administrative appeals. At this time,
it is not possible to determine whether NMC and



Exhibit A
Page 17









 







the government will be able to resolve issues
surrounding the IDPN claims. Further proceedings on other administrative appeals related to unpaid
claims remain stayed.



Exhibit A
Page 18









 





     Although NMC management believes that those unpaid IDPN claims were consistent with
published Medicare coverage guidelines and ultimately will be approved for payment, there can be no
assurance that the claims on appeal will be approved for payment or, to the extent approved,
collected in full. Such claims represent substantial accounts receivable of NMC, amounting to
approximately $150 million as of June 30, 1999.



     If NMC is unable to collect its IDPN receivable, either through the administrative appeal
process or through negotiation, or if IDPN coverage is reduced or eliminated, depending on the
amount of the receivable that is not collected and/or the nature of the coverage change, the
Company’s business, financial condition and results of operations could be materially adversely
affected. NMC’s IDPN receivables are included in the net assets of the Company’s discontinued
operations. However, these receivables have not been sold and will remain classified as
discontinued operations until they have been settled. See Notes to Consolidated Financial
Statements Note 4 -“Discontinued Operations.”



     Other Legal Proceedings



     District of New Jersey Investigation



     NMC has received multiple subpoenas from a federal grand jury in the District of New Jersey
investigating, among other things, whether NMC sold defective products, the manner in which NMC
handled customer complaints and certain matters relating to the development of a new dialyzer
product line. NMC is cooperating with this investigation and has provided the grand jury with
extensive documents. In February, 1996, NMC received a letter from the U.S. Attorney for the
District of New Jersey indicating that it is the target of a federal grand jury investigation into
possible violations of criminal law-in connection with Its efforts to
persuade the FDA to lift a January 1991 import
hold issued with respect to NMC’s Dublin, Ireland,
manufacturing facility. In June 1996, NMC
received a letter from the U.S. Attorney for the District of New Jersey indicating that the U.S.
Attorney had declined to prosecute NMC with respect to a submission related to NMC’s effort to
lift the import hold. The letter added that NMC remains a subject of a federal grand jury’s
investigation into other matters. NMC has produced documents in response to a June 1996 subpoena
from the federal grand jury requesting certain documents in connection with NMC’s imports of the
FOCUS(R) dialyzer from January 1991 to November 1995. The government investigators and the Company
have narrowed the issues with respect to which the government has previously expressed concerns
and are continuing discussions in order to resolve this investigation. However, the outcome and
impact, if any, of these discussions and potential resolution on the Company’s business, financial
condition or results of operations cannot be predicted at this time.



     Commercial Insurer Litigation



     In 1997, the Company, NMC and certain named NMC subsidiaries, were served with a civil
complaint filed by Aetna Life Insurance Company in the U.S. District Court for the Southern
District of New York (Aetna Life Insurance Company v. National Medical Care,



Exhibit A
Page 19









 




Inc. et al, 97-Civ-9310). In April 1999, Aetna amended its complaint to include its
affiliate, Aetna U.S. Healthcare, Inc., as an additional plaintiff, and to make certain other
limited changes in its pleading. Based in large part on information contained in prior securities
filings, the lawsuit alleges inappropriate billing practices for nutritional therapy, diagnostic
and clinical laboratory tests and misrepresentations. The amended complaint seeks unspecified
damages and costs. This matter is at a relatively early stage in the litigation process, with
substantial discovery just beginning and its outcome and impact on the Company cannot be predicted
at this time. However, the Company, NMC and its subsidiaries believe that they have substantial
defenses to the claims asserted, and intend to continue to vigorously defend the lawsuit. Other
private payors have contacted the Company and may assert that NMC received excess payments and
similarly, may join the lawsuit and seek reimbursement and other damages from NMC. An adverse
result could have a material adverse effect on the Company’s business, financial condition or
results of operations.




     In May 1999, the Company filed counter-claims against Aetna Life Insurance Company and Aetna
U.S. Healthcare, Inc. based on inappropriate claim denials and delays in claim payments. The
Company is also investigating similar counter-claims against the other private payors which have
contacted the Company.



     Administrative Appeals



     The Company regularly pursues various administrative appeals relating to reimbursement issues
in connection with its dialysis facilities. One such appeal consists of a challenge to the
Medicare regulation which capped reimbursement for the bad debts incurred by dialysis facilities.
In 1998, the United States Court of Appeals for the District of Columbia ruled in favor of the
Company in connection with the bad debt Issue, holdinig that the Secretary of Health & Human
Services had not adequately justified the bad debt regulation and ruling that the government’s
order adopting the rule was arbitary and capricious. The Court of Appeals remanded the matter to
the Secretary to provide a more adequate explanation of the bad debt cap or to abandon It.
Subsequently, the Court modified its holding to continue the bad debt regulation in effect pending
remand. The Company is continuing settlement discussions with the government in an attempt to
recover reimbursement for disallowed bad debt expenses. The Company cannot predict the outcome of
these discussions.




Exhibit A
Page 20












 





ITEM 1. LEGAL PROCEEDINGS





     As discussed in greater detail below, most aspects of NMC’s U.S. businesses are the subject of
criminal or civil investigations by several federal agencies and authorities, the outcome of which
cannot be predicted. If the government were successfully to pursue claims arising from any of these
investigations, NMC and one or more of its subsidiaries could be subject to civil or criminal
penalties, including substantial fines, suspension of payments or exclusion from the Medicare and
Medicaid programs as well as other federal health care benefit programs, which provide over 60% of
NMC’s revenues. In addition, NMC could be required to change billing or other practices which could
adversely affect NMC’s revenues. In addition, as discussed below, NMC has become aware that it is
the subject of qui tam or “whistleblower” actions with respect to some or all of the issues raised
by the government investigations, which whistleblower actions are filed under seal as a matter of
law in the first instance, thereby preventing disclosure to the Company and to the public except by
court order. In the process of unsealing federal whistleblower complaints, it is not unusual for
courts to allow the government to inform the Company and its counsel of a complaint prior to the
time the Company may be legally permitted to disclose it to the public. NMC may be the subject of
other “whistleblower” actions not known to the Company. Fresenius Medical Care and the Company have
guaranteed NMC’s obligations relating to or arising out of the
OIG Investigation and the qui tam
proceedings, and indemnified Grace Chemicals for any such liabilities.



     An adverse determination with respect to any of the issues addressed by the subpoenas, or any
of the other issues that have been or may be identified by the government, could result in the
payment of substantial fines, penalties and forfeitures, the suspension of payments or exclusion
of the Company or one or more of its subsidiaries from the Medicare program and other federal
programs, and changes in billing and other practices that could adversely affect the Company’s
revenues. Any such result could have a material adverse effect on the Company’s business,
financial condition and results of operations.



     OIG Investigation



     In October 1995, NMC received five investigative subpoenas from the OIG. The subpoenas were
issued in connection with an investigation being conducted by the OIG, the U.S. Attorney for the
District of Massachusetts and others concerning possible violations of federal laws, including the
anti-kickback statutes and the False Claims Act. The subpoenas call for extensive document
production relating to various aspects of NMC’s business.



     In connection with the OIG Investigation, the Company continues to receive additional
subpoenas directed to NMC or the Company to obtain supplemental



Exhibit A

Page 21




 









 




information and documents regarding the above-noted issues, or to clarify the scope of the
original subpoenas.




     The Company is cooperating with the OIG Investigation in providing supplemental
information and documents. The Company believes that the government continues to review and
evaluate the voluminous information the Company has provided. As indicated above, the
government continues, from time to time, to seek supplementing and/or clarifying information
from the Company. The Company understands that the government has utilized a grand jury to
investigate these matters. The Company expects that this process will continue while the
government completes its evaluation of the issues.



     The OIG Investigation covers the following areas: (a) NMC’s dialysis services business
(“Dialysis Services”), principally relating to its Medical Director contracts and compensation;
(b) NMC’s treatment of credit balances resulting from overpayments received under the Medicare,
Medicaid, CHAMPUS and other government and commercial payors, its billing for home dialysis
services, and its payment of supplemental medical insurance premiums on behalf of indigent
patients; (c) LifeChem’s laboratory business, including testing procedures, marketing, customer
relationships, competition, overpayments totaling approximately $4.9 million that were received
by LifeChem from the Medicare program with respect to laboratory services rendered between 1989
and 1993, a 1997 review of dialysis facilities’ standing orders, and the provision of discounts
on products from NMC’s products division, grants, equipment and entertainment to customers; and
(d) Homecare and, in particular, information concerning IDPN utilization, documentation of
claims and billing practices including various services, equipment and supplies and payments
made to third parties as compensation for administering IDPN therapy.



     The government has indicated that the areas identified above are not exclusive, and that it
may pursue additional areas. As noted, the penalties applicable under the anti-kickback statutes,
the False Claims Act and other federal and state statutes and regulations applicable to NMC’s
business can be substantial. While NMC asserts that it is able to offer legal and/or factual
defenses with respect to many of the areas the government has identified, it is expected that the
government will assert that NMC has violated multiple statutory and regulatory provisions.
Additionally, qui tam actions alleging that NMC submitted false claims to the government have been
filed under seal by former or current NMC employees or other individuals who may have familiarity
with one or more of the issues under investigation. As noted, under the False Claims Act, any such
private plaintiff could pursue an action against NMC in the name of the U.S. at his or her own
expense if the government declines to do so.



     Since October 1995 when the initial subpoenas were served NMC and the government have met
periodically to discuss issues in connection with the OIG Investigation, including theories of
liability. NMC and the government have been exploring the possibility of settling the matters
which are encompassed by the OIG Investigation and, as referenced below, have settled the
diagnostics investigation matter. There can be no assurance that any of the other matters
subject to the OIG Investigation will be settled. If, however, one or more of the matters
encompassed by the OIG Investigation is settled, it may result in NMC acknowledging that its
past



Exhibit A

Page 22




 









 



practices violated federal statutes, as well as NMC incurring substantial civil and criminal
financial penalties which could have a material adverse effect on the Company. If one or more of
these matters is not settled, the government may be expected to seek substantial civil and
criminal financial penalties and other sanctions including the suspension of payments by, and the
exclusion of NMC and its subsidiaries from, the Medicare program, Medicaid program and other
federal health care programs. See “Management’s Discussion and Analysis of Financial Condition and
Results of Operations — Contingencies.”




     An adverse determination with respect to any of the issues addressed by the subpoenas, or
any of the other issues that have been or may be identified by the government, could result in
the payment of substantial fines, penalties and forfeitures, the suspension of payments or
exclusion of the Company or one or more of its subsidiaries from the Medicare program and other
federal programs, and changes in billing and other practices that could adversely affect the
Company’s revenues. Any such result could have a material adverse effect on the Company’s
business, financial condition and results of operations. Under the terms of the Merger, any
potential resulting monetary liability has been retained by NMC, and the Company has indemnified
Grace Chemicals against all potential liability arising from or relating to the OIG
Investigation. The Company has provided the U.S. government with a guarantee of payment of the
obligations, if any, arising from the OIG Investigation. In support of this guarantee, the
Company has delivered to the U.S. government a standby letter of credit in the amount of 

$150
million.



     Medical Director Compensation



     The government is investigating whether Dialysis Services, compensation arrangements with its
Medical Directors constitute payments to induce referrals, which would be illegal under the
anti-kickback statutes, rather than payment for services rendered. Dialysis Services
compensated the substantial majority of its Medical
Directors on the basis of a percentage of the earnings of the dialysis center for which the
Medical Director was responsible from the inception of NMC’s predecessor in 1972 until January 1,
1995, the effective date of Stark II. Under the arrangements in effect prior to January 1, 1995,
the compensation paid to Medical Directors was adjusted to include “add backs,” which represented
a portion of the profit earned by MPG on products purchased by the Medical Director’s facility
from MPG and (until January 1, 1992) a portion of the profit earned by LifeChem on laboratory
services provided to patients at the Medical Director’s facility. These adjustments were designed
to allocate a profit factor to each dialysis center relating to the profits that could have been
realized by the center if it had provided the items and services directly rather than through a
subsidiary of NMC. The percentage of profits paid to any specific Medical Director was reached
through negotiation, and was typically a provision of a multi-year consulting agreement.



     To
comply with Stark II if Designated Health Services are involved, Medical Director
compensation must not exceed fair market value and may not take into account the volume or value
of referrals or other business generated between the parties. Since January 1, 1995, Dialysis
Services has compensated its Medical Directors on a fixed



Exhibit A

Page 23




 









 



compensation arrangement intended to comply with the requirements of Stark II. In renegotiating
its Medical Director compensation arrangements in connection with Stark II, Dialysis Services took
and continues to take account of the compensation levels paid to its Medical Directors in prior
years.




     Certain government representatives have expressed the view in meetings with counsel for NMC
that arrangements where the Medical Director was or is paid amounts in excess of the “fair market
value” of the services rendered may evidence illegal payments to induce referrals, and that
hourly compensation is a relevant measure for evaluating the “fair market value” of the services.
Dialysis Services does not compensate its Medical Directors on an hourly basis and has asserted
to the government that hourly compensation is not a determinative measure of fair market value.
Although the Company believes that the compensation paid to its Medical Directors is generally
reflective of fair market value, there can be no assurances that the government will agree with
this position or that the Company ultimately will be able to defend its position successfully.
Because of the wide variation in local market factors and in the profit percentage contractually
negotiated between Dialysis Services and its Medical Directors prior to January 1, 1995, there is
a wide variation in the amounts that have been paid to Medical Directors.



     As a result, the compensation that Dialysis Services has paid and is continuing to pay to a
material number of its Medical Directors could be viewed by the government as being in excess of
“fair market value,” both in absolute terms and in terms of hourly compensation. NMC has asserted
to the government that its compensation arrangements do not constitute illegal payments to induce
referrals. NMC has also asserted to the government that OIG auditors repeatedly reviewed Dialysis
Services’ compensation arrangements with its Medical Directors in connection with their audits of
the costs claimed by Dialysis Services; that the OIG stated in its audit reports that, with the
exception of certain technical issues, Dialysis Services had complied with applicable
Medicare laws and regulations pertaining to the ESRD program; and that Dialysis Services
reasonably relied on these audit reports in concluding that its program for compensating Medical
Directors was lawful. There has been no indication that the government will accept NMC’s
assertions concerning the legality of its arrangements generally or NMC’s assertion that it
reasonably relied on OIG audits, or that the government will not focus on specific arrangements
that DSD has made with one or more Medical Directors and assert that those specific arrangements
were or are unlawful.



     The government is also investigating whether Dialysis Services’ profit sharing arrangements
with its Medical Directors influenced them to order unnecessary ancillary services and items. NMC
has asserted to the government that the rate of utilization of ancillary services and items by
its Medical Directors is reasonable and that it did not provide illegal inducements to Medical
Directors to order ancillary services and items.



     Credit Balances



     In the ordinary course of business, medical service providers like Dialysis Services receive
overpayments from Medicare intermediaries and other payors for



Exhibit A

Page 24




 









 




services that they provide to patients. Medicare intermediaries commonly direct such providers to
notify them of the overpayment and not remit such amounts to the intermediary by check or otherwise
unless specifically requested to do so. In 1992, HCFA adopted a regulation requiring certain
Medicare providers, including dialysis centers, to file a quarterly form listing unrecouped
overpayments with the Medicare intermediary responsible for reimbursing the provider. The first
such filing was required to be made as of June 30, 1992 for the period beginning with the initial
date that the provider participated in the Medicare program and ending on June 30, 1992.




     The government is investigating whether DSD intentionally understated the Medicare credit
balance reflected on its books and records for the period ending June 30, 1992 by reversing
entries out of its credit balance account and taking overpayments into income in anticipation of
the institution of the new filing requirement. Dialysis Services policy was to notify Medicare
intermediaries in writing of overpayments upon receipt and to maintain unrecouped Medicare
overpayments as credit balances on the books and records of Dialysis Services for four years;
overpayments not recouped by Medicare within four years would be reversed from the credit balance
account and would be available to be taken into income. NMC asserts that Medicare overpayments
that have not been recouped by Medicare within four years are not subject to recovery under
applicable regulations and that its initial filing with the intermediaries disclosed the credit
balance on the books and records of Dialysis Services as shown in accordance with its policy, but
there can be no assurance that the government will accept NMC’s views. The government has inquired
whether other divisions including Homecare, LifeChem and DSI have appropriately treated Medicare
credit balances as well as credit balances of other payors.



     The government is also investigating whether Dialysis Services failed to disclose
Medicare overpayments that resulted from Dialysis Services, obligation to rebill commercial payors
for amounts originally billed to Medicare under HCFA’s initial implementation of the OBRA 93
amendments to the secondary payor provisions of the Medicare Act. Dialysis Services experienced
delays in reporting a material amount of overpayments after the implementation of the OBRA 93
amendments. NMC asserts that most of these delays were the result of the substantial
administrative burdens placed on Dialysis Services as a consequence of the changing and
inconsistent instructions issued by HCFA with respect to the OBRA 93 amendments and were not
intentional. Substantially all overpayments resulting from the rebilling effort associated with
the OBRA 93 amendments have now been reported. Procedures are in place that are designed to ensure
that subsequent overpayments resulting from the OBRA 93 amendments will be reported on a timely
basis.



     Supplemental Medical Insurance



     Dialysis Services provided grants or loans for the payment of premiums for supplemental
medical insurance (under which Medicare Part B coverage is provided) on behalf of a small
percentage of its patients who are financially needy. The practice of providing loans or grants
for the payment of supplemental medical insurance premiums by NMC was one of the subjects of
review by the government as part of the OIG Investigation.



Exhibit A

Page 25




 









 





     The Government, however, advised the Company orally that it is no longer pursuing this
issue. Furthermore, as a result of the passage of HIPAA, the Company terminated making such
payments on behalf of its patients. Instead, the Company, together with other representatives of
the industry, obtained an advisory opinion from the OIG, whereby, consistent with specified
conditions, the Company and other similarly situated providers may make contributions to a
non-profit organization that has volunteered to make these payments on behalf of indigent ESRD
patients, including patients of the Company. In addition, the government has indicated that it is
investigating the method by which NMC made Medigap payments on behalf of its indigent patients.



     Overpayments for Home Dialysis Services



     NMC acquired HIC, an in-center and home dialysis service provider, in 1993. At the time of
the acquisition, HIC was the subject of a claim by HCFA that HIC had received payments for home
dialysis services in excess of the Medicare reasonable charge for services rendered prior to
February 1, 1990. NMC settled the HCFA claim against HIC in 1994. The government is investigating
whether the settlement concerning the alleged overpayments made to HIC resolved all issues
relating to such alleged overpayments. The government is also investigating whether HDS received
payments similar to the payments that HIC received, and whether HDS improperly billed for home
dialysis services in excess of the monthly cost cap for services rendered on or after February 1,
1990. The government is investigating whether NMC was overpaid for services rendered. NMC asserts
that the billings by HDS were proper, but there can be no assurance that the government will
accept NMC’s view.



     LifeChem



     Overpayments. On September 22, 1995, LifeChem voluntarily disclosed certain billing problems
to the government that had resulted in LifeChem’s receipt of approximately $4.9 million in
overpayments from the Medicare program for laboratory services rendered between 1989 and 1993.
LifeChem asserts that most of these overpayments relate to errors caused by a change in LifeChem’s
computer systems and that the remainder of the overpayments were the result of the incorrect
practice of billing for a complete blood count with differential when only a complete blood count
was ordered and performed, and of the incorrect practice of billing for a complete blood count when
only a hemoglobin or hematocrit test was ordered. LifeChem asserts that the overpayments it
received were not caused by fraudulent activity, but there can be no assurance that the government
will accept LifeChem’s view.



     LifeChem made these disclosures to the government as part of an application to be admitted
to a voluntary disclosure program begun by the government in mid-1995. At the time of the
disclosures, LifeChem tendered repayment to the government of the $4.9 million in overpayments.
After the OIG Investigation was announced, the government indicated that LifeChem had not been
accepted into its voluntary disclosure program. The government has deposited the $4.9 million
check with NMC’s approval. The matters



Exhibit A

Page 26




 









 




disclosed in LifeChem’s September 22, 1995 voluntary disclosure are a subject of the OIG
Investigation.




     On
June 7, 1996, LifeChem voluntarily disclosed an additional billing problem to the
government that had resulted in LifeChem’s receipt of between $40,000 and $160,000 in overpayments
for laboratory services rendered in 1991. LifeChem advised the government that this overpayment
resulted from the submission for payment of a computer billing tape that had not been subjected to
a “billing rules” program designed to eliminate requests for payments for laboratory tests that are
included in the Composite Rate and that were not eligible for separate reimbursement. LifeChem also
advised the government that there may have been additional instances during the period from 1990 to
1992 when other overpayments were received as a result of the submission of computer billing tapes
containing similar errors and that it was in the process of determining whether such additional
overpayments were received. On June 21, 1996, LifeChem advised the government that the 1991 billing
problem disclosed on June 7, 1996 resulted in an overpayment of approximately $112,000. LifeChem
also advised the government that certain records suggested instances in July 1990 and August 31
through September 11, 1990, when billing tapes may have been processed without rules processing.
LifeChem continued its effort to determine whether any other overpayments occurred relating to the
“billing rules” problem and, in March 1997, advised the government that an additional overpayment
of approximately $260,000 was made by Medicare.



     On April 6, 1999, LifeChem voluntarily disclosed an additional billing problem to
the government that resulted in LifeChem’s receipt of overpayments for laboratory
services rendered between 1994 and 1999. In 1994, as a result of the advice  of a
billing
consultant, LifeChem began to bill for platelet testing performed in connection with
complete blood counts. This advice was confirmed by the consultant in 1997 as part of
a review performed by the consultant under the auspices of LifeChem’s then outside
counsel. In 1999, however, an internal inquiry resulted in a reexamination of this advice
and LifeChem determined that the prior advice was incorrect. As a result LifeChem voluntarily
disclosed and repaid the overpayment to the government in the amount of $8.6 million. LifeChem
also has notified the government of the disclosure. There can be no assurances that the government
will agree that LifeChem’s disclosure should not result in a sanction beyond repayment of the
overpayment amount.



     Capitation for routine tests and panel design. In October 1994, the OIG issued a special
fraud alert in which it stated its view that the industry practice of offering to perform or
performing the routine tests covered by the Composite Rate at a price below fair market value,
coupled with an agreement by a dialysis center to refer all or most of its non-Composite Rate
tests to the laboratory, violates the anti-kickback statutes. In response to this alert, LifeChem
changed its practices with respect to testing covered by the Composite Rate to increase the
amount charged to both Dialysis Services and third-party dialysis centers and reduce the number
of tests provided for the fixed rate. The government is investigating LifeChem’s practices with
respect to these tests.



     Benefits provided to dialysis centers and persons associated with dialysis centers. The
government is investigating whether Dialysis Services or any third-party



Exhibit A

Page 27




 









 




dialysis center or any person associated with any such center was provided with benefits in order
to induce them to use LifeChem services. Such benefits could include, for example, discounts on
products or supplies, the provision of computer equipment, the provision of money for the
purchase of computer equipment, the provision of research grants and the provision of
entertainment to customers. NMC has identified certain instances in which benefits were provided
to customers who purchased medical products from NMC Medical Products, Inc., NMC’s products
company, and used LifeChem’s laboratory services. The government asserts that the provision of
such benefits violates, among other things, the anti-kickback statutes. In December 1998, the
former Vice President of Sales responsible for NMC’s laboratory and products divisions plead
guilty to the payment of illegal kickbacks to obtain laboratory business for LifeChem. In
February 1999, the former President of NMC Medical Products, Inc., was indicted by the government
for the payment of these same and/or similar kickbacks.




     Business and testing practices. As noted above, the government has identified a
number of specific categories of documents that it is requiring NMC to produce in
connection with LifeChem business and testing practices. In addition to documents
relating to the areas discussed above, the government has also required LifeChem to
produce documents relating to the equipment and systems used by LifeChem in
performing and billing for clinical laboratory blood tests, the design of the test panels
offered and requisition forms used by LifeChem, the utilization rate for certain tests
performed by LifeChem, recommendations concerning diagnostic codes to be used in
ordering tests for patients with given illnesses or conditions, Internal and external audits
and investigations relating to LifeChem’s billing and testing. Subsequently, the
government served an investigative subpoena for documents concerning the Company’s
1997 review of dialysis facilities standing orders, and responsive documents were
provided. The government has served investigative subpoenas requiring NMC to update
its production on the above issues and to produce contract files for twenty-three
identified dialysis clinic customers. The government is investigating each of these
areas, and asserts that LifeChem and/or NMC have violated the False Claims Act and/or the
Anti-Kickback Statute through the test ordering, paneling, requisitioning, utilization, coding,
billing and auditing practices described above. In June 1999, a former Vice President of
Marketing of NMC Medical Products, Inc. plead guilty to a charge of conspiracy to defraud
Medicare in connection with the marketing of certain hepatitis tests.



     IDPN



     Administration kits. As discussed above, one of the activities of SRM is to provide IDPN
therapy to dialysis patients at both NMC-owned facilities and at facilities owned by other
providers. IDPN therapy was provided by Homecare prior to its divestiture. IDPN therapy is
typically provided to the patient 12-13 times per month during dialysis treatment. Bills are
submitted to Medicare on a monthly basis and include separate claims for reimbursement for
supplies, including, among other things, nutritional solutions, administration kits and infusion
pumps. In February 1991, the Medicare carrier responsible for processing Homecare’s IDPN claims
issued a Medicare advisory to all parenteral and enteral nutrition suppliers announcing a coding
change for reimbursement of administration kits provided in connection with IDPN therapy for



Exhibit A

Page 28





 












 






claims filed for items provided on or after April 1, 1991. The Medicare allowance for
administration kits during this period was approximately $625 per month per patient. The advisory
stated that IDPN providers were to indicate the “total number of actual days” when administration
kits were “used,” instead of indicating that a one-month supply of administration kits had been
provided. In response, Homecare billed for administration kits on the basis of the number of days
that the patient was on an IDPN treatment program during the billing period, which typically
represented the entire month, as opposed to the number of days the treatment was actually
administered. During the period from April 1991 to June 1992, Homecare had an average of
approximately 1,200 IDPN patients on service.




     In May 1992, the carrier issued another Medicare advisory to all PEN suppliers in which it
stated that it had come to the carrier’s attention that some IDPN suppliers had not been prorating
their billing for administration kits used by IDPN patients and that providers should not bill for
administration kits on the basis of the number of days that the patient was on an IDPN treatment
program during the billing period. The advisory stated further that the carrier would be
conducting “a special study to determine whether or not overpayments have occurred as a result of
incorrect billing” and that “if overpayments have resulted, providers that have incorrectly
billed” would “be contacted so that refunds can be recovered.” Homecare revised its billing
practices in response to this advisory for claims filed for items provided on or after July 1,
1992. Homecare was not asked to refund any amounts relating to its billings for administration
kits following the issuance of the second advisory.



     The government asserts that NMC submitted false claims for administration kits during the
period from 1998 to June 30, 1996, and that Homecare’s billing for administration kits during
this period violated, among other things, the False Claims Act.



     Infusion Pumps and IV Poles. During the time period covered by the subpoenas, Medicare
regulations permitted IDPN[ providers to bill Medicare for the
infusion pumps and, until 1992,
for IV poles provided to IDPN patients in connection with the administration of IDPN treatments.
These regulations do not expressly specify that a particular pump and IV pole be dedicated to a
specific patient, and NMC asserts that these regulations permitted Homecare to bill Medicare for
an infusion pump and IV pole so long as the patient was infused using a pump and IV pole. Despite
the absence of an express regulatory specification, Homecare developed a policy to deliver to a
dialysis center a dedicated infusion pump and IV pole for each patient, although the Company
cannot represent that Homecare followed this policy in every instance. The government is
investigating the propriety of Homecare’s billings for infusion pumps and IV poles and asserts
that Homecare’s billings violate the False Claims Act.



     As noted above, under the new policies published by HCFA with respect to IDPN therapy, the
Company has not been able to bill for infusion pumps after July 1, 1996. The government
discontinued reimbursement for IV poles in 1992.



     “Hang fees” and other payments. IDPN therapy is typically provided to the patient during
dialysis by personnel employed by the dialysis center treating the patient with supplies
provided and billed to Medicare by Homecare in accordance with the



Exhibit A

Page 29




 









 





Medicare parenteral nutrition supplier rules. In order to compensate dialysis centers for the
costs incurred in administering IDPN therapy and monitoring the patient during therapy, Homecare
followed the practice common in the industry of paying a “hang fee” to the center. Dialysis
centers are responsible for reporting such fees to HCFA on their cost reports. For Dialysis
Services dialysis centers, the fee was $30 per administration, based upon internal Dialysis
Services cost calculations. For third-party dialysis centers, the fee was negotiated with each
center, typically pursuant to a written contract, and ranged from $15 to $65 per administration.
The Company has identified instances in which other payments and amounts beyond that reflected in
a contract were paid to these third-party centers. The Company has stopped paying “hang fees” to
both Dialysis Services and third-party facilities.




     In
July 1993, the OIG issued a management advisory alert to HCFA in which it stated that
“hang fees” and other payments made by suppliers of IDPN to dialysis centers “appear to be
illegal as well as unreasonably high.” The government is investigating the nature and extent of
the “hang fees” and other payments made by Homecare as well as payments by Homecare to physicians
whose patients have received IDPN therapy. The government asserts that the payments by Homecare
to dialysis centers violate, among other things, the anti-kickback statutes.



     Utilization of IDPN. Since 1984, when HCFA determined that Medicare should cover IDPN and
other parenteral nutrition therapies, the Company has been an industry leader in identifying
situations in which IDPN therapy is beneficial to ESRD patients. It is the policy of the Company
to seek Medicare reimbursement for IDPN therapy only when it is prescribed by a patient’s treating
physician and when it believes that the circumstances satisfy the requirements published by HCFA
and its carrier agents. Prior to 1994, HCFA and its carriers approved for payment more than 90% of
the IDPN claims submitted by Homecare. After 1993, the rate of approval for Medicare reimbursement
for IDPN claims submitted by Homecare for new patients, and by the infusion industry in general,
fell to approximately 9%. The Company contends that the reduction in rates of approval occurred
because HCFA and its carriers implemented an unauthorized change in coverage policy without giving
notice to providers. While NMC continued to offer IDPN to patients pursuant to the prescription of
the patients’ treating physicians and to submit claims for Medicare reimbursement when it believed
the requirements stated in HCFA’s published regulations were satisfied, other providers responded
to the drop in the approval rate for new Medicare IDPN patients by
abandoning the Medicare IDPN,
business, cutting back on the number of Medicare patients to whom they provide IDPN, or declining
to add new Medicare patients. Beginning in 1994 the number of patients to whom NMC provided IDPN
increased as a result.



     The government is investigating the utilization rate of IDPN therapy among the NMC
patients, whether the NMC submitted IDPN claims to Medicare for patients who were not eligible
for coverage, and whether documentation of eligibility was adequate. NMC asserts that the
utilization rate of IDPN therapy among its dialysis patients, which, in 1995, averaged less than
3.5%, is the result of the factors discussed above and that it is the policy of Homecare to seek
Medicare reimbursement for IDPN therapy prescribed by the patients’ treating physician in
accordance with the requirements published by HCFA and its carrier agents. There can be no
assurance that the government will



Exhibit A

Page 30





 









 








accept the NMC’s view. The government asserts that Homecare submitted IDPN claims for individuals
who were not eligible for coverage and/or with inadequate documentation of eligibility.




     The Company believes that it has presented to the government substantial defenses which
support NMC’s interpretation of coverage rules of IDPN as HCFA and its carriers published and
explained them, and which demonstrated that HCFA and its carriers improperly implemented
unpublished, more restrictive criteria after 1993. Nevertheless, the government is expected to
assert in the OIG Investigation that, on a widespread basis, NMC submitted and received payments on
claims for IDPN to Medicare for patients who were not eligible for coverage, and for whom the
documentation of eligibility was inadequate.



     In addition, the government asserts that, in a substantial number of cases, documentation of
eligibility was false or inaccurate. With respect to some claims, the Company has determined that
false or inaccurate documentation was submitted, deliberately or otherwise. The government
continues to investigate the IDPN claims.



     Qui Tam Actions



     The Company and NMC is aware that certain qui tam actions have been filed in various
jurisdictions. Each of these actions is under seal and in each action, pursuant to court order the
seal has been modified to permit the Company, NMC and other affiliated defendants to disclose the
complaint to any relevant investors, financial institutions and/or underwriters, their successors
and assigns and their respective counsel and to disclose the allegations in the complaints in
their respective U.S. Securities and Exchange Commission (the “SEC” or the Commission”) and New
York Stock Exchange (“NYSE”) periodically required filings.



     A qui tam action was filed in the United States District Court for the Southern District of
Florida in June 1994, amended on July 8, 1996 and disclosed to the Company on July 10, 1996. It
alleges, among other things, that Grace Chemicals and NMC violated the False Claims Act in
connection with certain billing practices regarding IDPN and the administration of EPO and that as
a result of this allegedly wrongful conduct, the United States suffered actual damages in excess
of $200 million. The Amended Complaint also seeks the imposition of a constructive trust on the
proceeds of the NMC dividend to Grace Chemicals for the benefit of the United States on the ground
that the Merger constitutes a fraudulent conveyance that will render NMC unable to satisfy the
claims asserted in the Amended Complaint.



     A qui tam action was filed in the United States District Court for the Southern District of
Florida in December 1994 and disclosed to the Company on
April 16, 1999. It alleges, among other
things, that NMC violated the False Claims Act in connection with certain billing practices
regarding IDPN and the cost relating thereto. The second qui tam was filed by the same relator
which filed the first qui tam and covers the same services covered by
the first qui tam complaint.



Exhibit A

Page 31




 









 





     A qui tam action was filed in the United States District Court for the Middle District of
Florida in 1995 and disclosed to the Company on or before November 7, 1996. It alleges, among other
things, that NMC and certain NMC subsidiaries violated the False Claims Act in connection with the
alleged retention of over-payments made under the Medicare program, the alleged submission of
claims in violation of applicable cost caps and the payment of supplemental Medicare insurance
premiums as an alleged inducement to patients to obtain dialysis products and services from NMC.
The complaint alleges that as a result of this allegedly wrongful conduct, the United States
suffered damages in excess of $10 million including applicable fines.



     A qui tam action was filed in the United States District Court for the Eastern District of
Pennsylvania in May 1995 and was disclosed to the Company in August 1997. It alleges, among other
things, that Biotrax violated the False Claims Act in connection with its submission of claims to
the Medicare program for diagnostic tests and induced overutilization of such tests in the medical
community through improper marketing practices also in violation of the False Claims Act. This qui
tam action was dismissed as part of the diagnostics civil investigation settlement reached in May
1999. See “Part II, Item 1, Legal Proceedings — Commitments and Contingencies — Diagnostics
Subpoena.”



     A qui tam action was filed in the United States District Court for the Eastern District of
Pennsylvania in August 1996 and was disclosed to the Company in August 1997. It alleges, among
other things, that Biotrax and NMC Diagnostic Services induced overutilization of diagnostic tests
by several named and unnamed physician defendants in the local medical community, through improper
marketing practices and fee arrangements, in violation of the False Claims Act. This qui tam
action was dismissed as part of the diagnostics civil investigation settlement reached in May
1999. See “Part II, Item 1. Legal Proceedings —
Commitments and Contingencies — Diagnostics Subpoena.”



     A qui tam action was filed in the United States District Court for the Eastem District of
Pennsylvania in November 1996 and was disclosed to the Company in August 1997. It alleges, among
other things, that NMC, DSI and Biotrax violated the False Claims Act in connection with the
submission of claims to the Medicare program by improperly upcoding and otherwise billing for
various diagnostic tests. This qui tam action was dismissed as part of the diagnostics civil
investigation settlement reached in May 1999. See “Part II, Item 1, Legal Proceedings —
Commitments and Contingencies — Diagnostics Subpoena.”



     A qui tam action was filed in the United States District Court for the District of Delaware
in January 1997 and was disclosed to the Company in September 1997. It alleges, among other
things, that NMC and Biotrax violated the False Claims Act in connection with the submission of
claims to the Medicare program for diagnostic tests, and induced
overutilization of such tests
through improper marketing practices which provided impermissible incentives to health care
providers to order these tests. This qui tam action was dismissed as part of the diagnostics
civil investigation settlement reached in May 1999. See “Part II, Item 1, Legal Proceedings —
Commitments and Contingencies — Diagnostics Subpoena.”



Exhibit A

Page 32




 









 





     A qui tam action was filed in the United States District Court for the District of New Jersey
in February 1997 and was disclosed to the Company in September 1997. It alleges, among other
things, that DSI and NMC violated the False Claims Act in connection with the submission of claims
to the Medicare program for reimbursement for diagnostic tests, by causing unnamed physicians to
overutilize these tests though a variety of fee arrangements and other impermissible inducements.
This qui tam action dismissed as part of the diagnostics civil investigation settlement reached in
May 1999. See “Part II, Item 1, Legal Proceedings — Commitments and Contingencies —Diagnostics
Subpoena.”



     A qui tam was filed in the United States District Court for the District of Massachusetts in
1994 and was disclosed to the Company in February 1999. It alleges among other things that NMC
violated the False Claims Act and the Anti-Kickback Statute in connection with certain billing and
documentation practices regarding IDPN therapy, home oxygen therapy and certain medical billings
in NMC’s Chicago office.



     Each of the qui tam complaints asserts that as a result of the allegedly wrongful conduct,
the United States suffered damages and that the defendants are liable to the United States for
three times the amount of the alleged damages plus civil penalties of up to $10,000 per false
claim. An adverse result in any of the qui tam actions could have a material adverse effect on the
Company’s business, financial condition or results of operations.



     OIG Agreements



     As a result of discussions with representatives of the United States in connection with the
OIG Investigation, certain agreements (the “OIG Agreements”) have been entered into to
guarantee the payment of any obligations of NMC to the United States (an “Obligation”) relating
to or arising out of the OIG Investigation and the qui tam action filed in the Southern District
of Florida (the “Government Claims”). For the purposes of the OIG Agreements, an Obligation is (a)
a liability or obligation of NMC to the United States in respect of a Government Claim pursuant to
a court order (i) which is final and nonappealable or (ii) the enforcement of which has not been
stayed pending appeal or (b) a liability or obligation agreed to be an Obligation in a settlement
agreement executed by Fresenius Medical Care, the Company or NMC, on the one hand, and the United
States, on the other hand. As stated elsewhere herein, the outcome of the OIG Investigation cannot
be predicted.



     Pursuant
to the OIG Agreements, upon consummation of the Merger, Fresenius Medical Care, the
Company and NMC provided the United States with a joint and several unconditional guarantee of
payment when due of all Obligations (the “Primary Guarantee”). As credit support for this
guarantee, NMC delivered an irrevocable standby letter of credit in the amount of $150 million.
The United States will return such letter of credit (or any renewal or replacement) for
cancellation when all Obligations have been paid in full or it is determined that NMC has no
liability in respect of the Government Claims. Under the terms of the Merger, any potential
resulting monetary



Exhibit A

Page 33





 









 







liability has been retained by NMC, and the Company has indemnified Grace Chemicals against all
potential liability arising from or relating to the OIG Investigation.




     FMC and the Company and the United States state in the OIG Agreements that they will negotiate
in good faith to attempt to arrive at a consensual resolution of the Government Claims and, in the
context of such negotiations, will negotiate in good faith as to the need for any restructuring of
the payment of any Obligations arising under such resolution, taking into account the ability of
FMC and the Company to pay the Obligations. The OIG Agreements state that the foregoing statements
shall not be construed to obligate any person to enter into any settlement of the Government Claims
or to agree to a structured settlement. Moreover, the OIG Agreements state that the statements
described in the first sentence of this paragraph are precatory and statements of intent only and
that (a) compliance by the United States with such provisions is not a condition or defense to the
obligations of FMC and the Company under the OIG Agreements and (b) breach of such provisions by
the United States cannot and will not be raised by FMC and the Company to excuse performance under
the OIG Agreements. Neither the entering into of the OIG Agreements nor the providing of the
Primary Guarantee and the $150 million letter of credit is an admission of liability by any party
with respect to the OIG Investigation, nor does it indicate the liability which may result
therefrom.



     The foregoing describes the material terms of the OIG Agreements, copies of which were
previously filed with the Commission and copies of which may be examined without charge at the
public reference facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W.
Washington, D.C. 20549, and at the Regional Offices of the Commission located at Suite 1400,
Citicorp Center, 500 West Madison Street, Chicago, Illinois 60661-2551 and Room 1300, 7 World
Trade Center, New York, New York 10048. Copies of such material will also be made available by mail
from the Public Reference Branch of the commission at 450 Fifth
Street, N.W. Washington, D.C. 20549, at
prescribed rates. The foregoing description does not purport to be completes and is qualified
in its entirety by reference to such agreements.



     Diagnostics Subpoena



     In October 1996, Biotrax International, Inc. (“Biotrax”) and NMC Diagnostics, Inc., (“DSl”)
both of which are subsidiaries of NMC, received a civil investigative subpoena from the OIG
concerning the possible submission of false or improper claims to, and their payment by, the
Medicare program. In May, 1999 the Company and the government entered into a settlement agreement
pursuant to which, among other things, the government has agreed to release the Company with
respect to this matter in exchange for a payment of approximately $16.8 million from the Company.



     District of New Jersey Investigation



     NMC has received multiple subpoenas from a federal grand jury in the District of New Jersey
investigating, among other things, whether NMC sold defective products, the manner in which NMC
handled customer complaints and certain matters relating to the development of a new dialyzer
product line NMC is cooperating with this



Exhibit A

Page 34





 









 







investigation
and has provided the grand jury with extensive documents. In February, 1996, NMC
received a letter from the U.S. Attorney for the District of New Jersey indicating that it is the

target of a federal grand jury investigation into possible violations of criminal law in connection
with its efforts to persuade the FDA to lift a January 1991 import hold issued with respect to
NMC’s Dublin, Ireland manufacturing facility. In June 1996, NMC received a letter from the U.S.
Attorney for the District of New Jersey indicating that the U.S. Attorney had declined to prosecute
NMC with respect to a submission related to NMC’s effort to lift the import hold. The letter added
that NMC remains a subject of a federal grand jury’s investigation into other matters. NMC has
produced documents in response to a June 1996 subpoena from the federal grand jury requesting
certain documents in connection with NMC’s imports of the FOCUS(R) dialyzer from January 1991 to
November 1995. The government investigators and the Company have narrowed the issues with respect
to which the government has previously expressed concerns and are continuing discussions in order
to resolve this investigation. However, the outcome and impact, if any, of these discussions and
potential resolution on the Company’s business, financial condition or results of operations cannot
be predicted at this time.




Exhibit A

Page 35





 












 




     Commercial Insurer Litigation


     In 1997, the Company, NMC, and certain named NMC subsidiaries, were served with a civil
complaint filed by Aetna Life Insurance Company in the U.S. District Court for the Southern
District of New York (Aetna Life Insurance Company v. National
Medical Care, Inc. et al,
97-Civ-9310). In April 1999, Aetna amended its complaint to include its affiliate, Aetna U.S.
Healthcare, Inc., as an additional plaintiff, and to make certain other limited changes in its
pleading. Based in large part on information contained in prior securities filings, the lawsuit
alleges inappropriate billing practices for nutritional therapy, diagnostic and clinical
laboratory tests and misrepresentations. The amended complaint seeks unspecified damages and
costs. This matter is at a relatively early stage in the litigation process, with substantial
discovery just beginning, and its outcome and impact on the Company cannot be predicted at this
time. However, the Company, NMC and its subsidiaries believe that they have substantial defenses
to the claims asserted, and intend to continue to vigorously defend the lawsuit. Other private
payors have contacted the Company and may assert that NMC received excess payments and similarly,
may join the lawsuit and seek reimbursement and other damages from NMC. An adverse result could
have a material adverse effect on the Company’s business, financial condition or results of
operations.


     In May 1999, the Company filed counter-claims against Aetna Life Insurance Company and
Aetna U.S. Healthcare, Inc. based on inappropriate claim denials and delays in claim payments.
The Company is also investigating similar counter-claims against two other private payors which
have contacted the Company.


     OBRA 93


     OBRA 93 affected the payment of benefits under Medicare and employer health
plans for certain eligible ESRD patients. In July 1994, HCFA issued an instruction to Medicare
claims processors to the effect that Medicare benefits for the patients affected by OBRA 93 would
be subject to a new 18-month “coordination of benefits” period. This instruction had a positive
impact on NMC’s dialysis revenues because, during the 18-month coordination of benefits period,
patients’ employer health plans were responsible for payment, which was generally at rates higher
than that provided under Medicare.


     In April 1995, HCFA issued a new instruction, reversing its original instruction in a
manner that would substantially diminish the positive effect of the original instruction on
NMC’s dialysis business. HCFA further proposed that its new instruction be effective retroactive
to August 1993, the effective date of OBRA 93.


     NMC ceased to recognize the incremental revenue realized under the original Program
Memorandum as of July 1, 1995, but it continued to bill employer health plans as primary payors
for patients affected by OBRA 93 through December 31, 1995. As of January 1, 1996, NMC commenced
billing Medicare as primary payor for dual eligible ESRD patients affected by OBRA 93, and then
began to rebill in compliance with the revised policy for services rendered between April 24 and
December 31,1995.


Exhibit A
Page 36


 







 




     On May 5, 1995, NMC filed a complaint in the U.S. District Court for the
District of Columbia (National Medical Care, Inc. and Bio-Medical Applications of
Colorado, Inc. d/b/a Northern Colorado Kidney Center v. Shalala, C.A. No. 95-0860
(WBB)) seeking to preclude HCFA from retroactively enforcing its April 24, 1995
implementation of the OBRA 93 provisions relating to the coordination of benefits
for dual eligible ESRD patients. On May 9, 1995, NMC moved for a preliminary
injunction to preclude HCFA from enforcing its new policy retroactively, that is,
to billings for services provided between August 10, 1993 and April 23, 1995. On
June 6, 1995, the court granted NMC’s request for a preliminary injunction and in
December of 1996, NMC moved for partial summary judgment seeking a declaration
from the Court that HCFA’s retroactive application of the April 1995 rule was
legally invalid. HCFA cross-moved for summary judgment on the grounds that the
April 1995 rule was validly applied prospectively. In January 1998, the court
granted NMC’s motion for partial summary judgment and entered a declaratory
judgment in favor of NMC, holding HCFA’s retroactive application of the April 1995
rule legally invalid, and based on its finding, the Court also permanently
enjoined HCFA from enforcing and applying the April 1995 rule retroactively
against NMC. The Court took no action on HCFA’s motion for summary judgment
pending completion of the outstanding discovery. On October 5, 1998 NMC filed it’s
own motion for summary judgment requesting that the Court declare HCFA’s
prospective application of the April 1995 rule invalid and permanently enjoin HCFA
from prospectively enforcing and applying the April 1995 rule. The Court has not
yet ruled on the parties’ motions. HCFA elected not to appeal from the Court’s
June 1995 and January 1998 orders. HCFA may, however, appeal all rulings at the
conclusion of the litigation. If HCFA should successfully appeal so that the
revised interpretation would be applied retroactively NMC may be required to
refund the payments received from employer health plans for services provided
after August 10, 1993 under HCFA’s original implementation, and to re-bill
Medicare for the same services, which would result in a net loss to NMC of
approximately $120 Million attributable to all periods prior to December 31,1995.
Also, in such event, the Company’s business, financial position and results of
operations would be materially adversely affected.


     IDPN Coverage Issues


     SRM administers IDPN therapy to chronic dialysis patients who suffer from
severe gastrointestinal malfunctions. IDPN therapy was provided by Homecare prior
to its divestiture. After 1993, Medicare claims processors sharply reduced the
number of IDPN claims approved for payment as compared to prior periods. NMC
believes that the reduction in IDPN claims represented an unauthorized policy
coverage change. Accordingly, NMC and other IDPN providers pursued various
administrative and legal remedies, including administrative appeals, to address
this reduction.


     In November 1995, NMC filed a complaint in the U.S. District Court for the
Middle District of Pennsylvania seeking a declaratory judgment and injunctive
relief to prevent the implementation of this policy coverage change. (National
Medical Care, Inc. v. Shalala, 3:CV-95-1922 (RPC)). Subsequently, the District
Court affirmed a prior report of the magistrate judge dismissing NMC’s complaint,
without considering any substantive claims, on the grounds that the underlying
cause of action should be


Exhibit A
Page 37


 







 




submitted fully to the administrative review processes available under the
Medicare Act. NMC decided not to appeal the Court’s decision, but rather,
to pursue the claims through the available administrative processes.



     NMC was successful in pursuing these claims through the administrative
process, receiving favorable decisions from Administrative Law Judges in
more than 80% of its cases. In early 1998, a group of claims which had been
ruled on favorably were remanded by the Medicare Appeals Council to a
single Administrative Law Judge (the “ALJ”) with extensive instructions
concerning the review of these decisions. A hearing was scheduled on the
remanded claims to take place in July, but later postponed until October
1998.


     Prior to the July hearing date, the United States Attorney for the
District of Massachusetts requested that the hearing be stayed pending
resolution of the OIG Investigation, on the basis that proceeding could
adversely effect the government’s investigation as well as the government’s
efforts to confirm it belief that these claims are false. Prior to the ALJ
issuing a decision on the stay request, the U.S. Attorney’s Office requested
that NMC agree to a stay in the proceedings in order to achieve a potential
resolution of the IDPN claims subject to the OIG Investigation as well as
those which are subject to the administrative appeals process. NMC agreed to
this request, and together with the U.S. Attorney’s Office requested a stay.
The ALJ agreed to this request in order to allow the parties the opportunity
to resolve both the IDPN claims which are the subject of the OIG
Investigation and the IDPN claims which are the subject of the
administrative proceedings. In March 1999 negotiations between NMC and the
U.S. Attorney’s Office failed to progress and NMC requested that the stay be
lifted. The ALJ agreed to NMC’s request and on April 19, 1999 the ALJ
hearing began. The hearing process is expected to proceed for several
months. At the same time, NMC and the U.S. Attorney’s Office are continuing
to discuss potential settlement of both the claims relating to the OIG investigation and the claims which are subject to
administrative appeals. At this time, it is not possible to determine whether NMC and
the government will be able to resolve issues surrounding the IDPN claims.
Further proceedings on other administrative appeals related to unpaid
claims remain stayed.


     Although NMC management believes that those unpaid IDPN claims were
consistent with published Medicare coverage guidelines and ultimately will
be approved for payment, there can be no assurance that the claims on
appeal will be approved for payment in full or, to the extent approved,
collected in full. Such claims represent substantial accounts receivable of
NMC, amounting to approximately $150 million as of June 30, 1999.


     If NMC is unable to collect its IDPN receivable, either through the
administrative appeal process or through negotiation, or if IDPN coverage
is reduced or eliminated, depending on the amount of the receivable that
is not collected and/or the nature of the coverage change, NMC’s business,
financial condition and results of operations could be materially
adversely affected. NMC’s IDPN receivables are included in the net assets
of the Company’s discontinued operations. However, these receivables have
not been sold and will remain classified as discontinued operations until
they have been


Exhibit A

Page 38



 








 




settled. See Notes to Consolidated Financial Statements, Note 4 — “Discontinued
Operations.”


     Administrative Appeals


     The Company regularly pursues various administrative appeals relating to reimbursement
issues in connection with its dialysis facilities. One such appeal consists of a challenge
to the Medicare regulation which capped reimbursement for the bad debts incurred by
dialysis facilities. In 1998, the United States Court of Appeals for the District of
Columbia ruled in favor of the Company in connection with the bad debt issue, holding that
the Secretary of Health & Human Services had not adequately justified the bad debt
regulation, and ruling that the government’s order adopting the rule was arbitrary and
capricious. The Court of Appeals remanded the matter to the Secretary to provide a more
adequate explanation of the bad debt cap or to abandon it. Subsequently, the Court modified
its holding to continue the bad debt regulation in effect pending remand. The Company is
continuing settlement discussions with the government in an attempt to recover
reimbursement for disallowed bad debt expenses. The Company cannot predict the outcome of
these discussions.


     Spectra Corporate Integrity Agreement


     Spectra was acquired by the Company in June 1997. Prior to Spectra’s acquisition by the
Company, Spectra settled an investigation by the government and entered into a Corporate Integrity
Agreement (the “Agreement”). In February 1999 the government advised Spectra that it may be in
breach of the Agreement and on March 15, 1999 issued a subpoena to Spectra requesting certain
documents related to the Agreement. Spectra has complied with the subpoena and is currently
working with the government to determine if any corrective action is necessary. While there can be
no assurances, the Company does not believe the outcome of this matter will have a material adverse
effect on the company.


     Other Litigation and Potential Exposures


     In recent years, physicians, hospitals and other participants in the health care
industry have become subject to an increasing number of lawsuits alleging professional
negligence, malpractice, product liability, workers’ compensation or related claims, many
of which involve large claims and significant defense costs. The Company and NMC and their
subsidiaries have been, and the Company can be expected to continue from time to time to
be, subject to such suits due to the nature of the Company’s business. Although the
Company maintains insurance at a level which it believes to be prudent, there can be no
assurance that the coverage limits will be adequate or that all asserted claims will be
covered by insurance. In addition, there can be no assurance that liability insurance will
continue to be available at acceptable costs. A successful claim against the Company or
any of its subsidiaries in excess of insurance coverage could have a material adverse
effect upon the Company and the results of its operations. Any claims, regardless of their
merit or eventual outcome, also may have a material adverse effect on the reputation and
business of the Company. The Company, NMC and their subsidiaries operate a large number
and wide variety of facilities throughout the U.S. in


Exhibit A
Page 39


 







 




such a decentralized system it is often difficult to maintain the desired level of oversight and
control over the thousands of individuals employed by many affiliate companies. The Company relies
upon its management structure, regulatory and legal resources, and the effective operation of its
compliance program to direct, manage and monitor the activities of these employees. However, on
occasion, the Company, NMC and their subsidiaries have identified instances where employees,
deliberately or inadvertently, have submitted inadequate or false billings while employed by an
affiliated company. The illegal actions of such persons may subject NMC to liability under the
False Claims Act, among other laws, and the Company cannot predict whether such law enforcement
authorities may use such information to initiate further investigations of the business practices
disclosed or any other business activities of the Company. In addition, the Company asserts claims
and suits arising in the ordinary course of business, the ultimate resolution of which would not,
in the opinion of the Company, have a material adverse effect on its financial condition.


Exhibit A
Page 40


 







 





EXHIBIT L




to




FOURTH AMENDED AND RESTATED




TRANSFER AND ADMINISTRATION AGREEMENT




FORMS OF SECRETARY’S CERTIFICATE





 












 





Certificate of Secretary



I, the undersigned, being the Secretary of NMC Funding Corporation, a Delaware corporation
(the “Company”), DO HEREBY CERTIFY that:



The person named below has been duly appointed, is duly qualified as and is on the date hereof an
officer of the Company, and the signature below set opposite his name is his genuine signature.




	 	 	 	 	 
	Name	 	Office	 	Signature
	 
	 	 	 	 
	Mark Fawcett

	 	Treasurer
	 	/s/ Mark Fawcett
	 

	 	 	 	 




Attached hereto as Exhibit A is a true and complete copy of the Company’s
Certificate/Articles of Incorporation, or its equivalent, as filed in the Office of the
Secretary of State, or its equivalent, of the State of incorporation, together with all
amendments thereto adopted through the date hereof.



Attached hereto as Exhibit B is a true and complete copy of the Company’s by-laws as in effect on
the date hereof, together with all amendments thereto adopted through the date hereof.



Attached hereto as Exhibit C are true and correct copies of the resolutions duly adopted by the
Company’s board of directors on October 16, 2008 by written consent, which resolutions have not
been revoked, modified, amended, or rescinded and are in full force and effect as of the date
hereof. Except as attached hereto as Exhibit C, no resolutions have been adopted by the Company’s
board of directors which deal with matters set forth in Exhibit C.



IN WITNESS WHEREOF, I have hereunto set my hand this 16th day of October, 2008.




	 	 	 	 	 
	 	 	 
	 	                                                      /s/ Douglas G. Kott
 	 
	 	Douglas G. Kott 	 
	 	Secretary 	 
	 




 









 





PAGE 1




State of Delaware




Office of the Secretary of State




 






     I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE
ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF INCORPORATION OF “NMC FUNDING
CORPORATION”, FILED IN THIS OFFICE ON THE FOURTEENTH DAY OF AUGUST, A.D. 1997, AT 12:15 O’CLOCK
P.M.



     A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF
DEEDS FOR RECORDING.



	
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 
	 	/s/ Edward J. Freel	 	 
	 	 	 	 
	 	Edward J. Freel, Secretary of State	 	 
	 	 	 	 	 	 	 	 
	2785199 8100

	 	AUTHENTICATION:
	 	 	8606253	 	 	 
	 
	 	 	 	 	 	 	 	 
	971272145

	 	DATE:
	 	 	08-14-97	 	 	 







 











 





CERTIFICATE OF INCORPORATION




of




NMC FUNDING CORPORATION




     FIRST: This corporation’s name is “NMC Funding Corporation” (hereinafter called
the“Corporation”).



     SECOND: The address of the Corporation’s registered office in the State of Delaware is 1209
Orange Street, Wilmington, New Castle County, Delaware 19801. The name of the Corporation’s
registered agent at such address is The Corporation Trust Company



     THIRD: The nature of the business or purposes to be conducted or promoted by the
Corporation are:




     (a) to enter into, perform and comply with a receivables purchase agreement (the
“Purchase Agreement”) with National Medical Care, Inc. (“Seller”), pursuant to which
agreement the Corporation may, among other things, purchase from Seller some or all of
its accounts receivable and related security interests and rights (the “Receivables”);




     (b) to own, hold and service (or arrange for an agent to service) the Receivables;




     (c) to fund the Corporation’s purchases of Receivables by selling interests in the
Receivables to, or borrowing from, one or more trusts, banks, financial institutions,
commercial paper issuers, insurance companies or similar entities (collectively,
“Financial Entities”), and, in connection with any such financing arrangements (whether
a
sale or a borrowing, a “Financial Transaction”), to sell, or pledge as security, all or
substantially all of the Corporation’s assets, including all of its right, title and
interest to
and in the Receivables;




     (d) to invest the proceeds derived from the sale or ownership of the Receivables as
determined by the Corporation’s board of directors (the “Board”); and




     (e) to engage in any lawful act or activity and to exercise any powers permitted to
corporations organized under the General Corporation Law of the State of Delaware
(“Delaware General Corporation Law”) that, in either case, are incidental to and
necessary
or convenient for the accomplishment of the above-mentioned purposes.




     FOURTH: The total number of shares of all classes of capital stock that the
Corporation is authorized to issue is One Thousand (1,000) shares, all of which shares



 









 






shall be common stock, par value $.10 per share (“Common Stock”). All Common Stock will be
identical and will entitle the holders thereof to the same rights and privileges.



          a. Voting Rights. Except as set forth herein or as otherwise required by law, all
outstanding Common Stock shall be entitled to vote on each matter on which the Corporation’s
stockholders shall be entitled to vote, and each holder of Common Stock shall be entitled to
one
vote for each share of Common Stock held by such holder.




          b. Dividends and Other Distributions. The Board may cause dividends to be paid
to holders of Common Stock out of funds legally available for the payment of dividends. Any
dividend or distribution on the Common Stock shall be payable on all Common Stock share and
share alike.




          c. Liquidation. In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, after payment or provision for payment of the
Corporation’s debts and other liabilities, the holders of Common Stock shall be entitled to
share
ratably, share alike, in the Corporation’s remaining net assets.




          FIFTH: In furtherance and not in limitation of the powers conferred by statute, the Board is
expressly authorized to alter, amend, repeal or adopt the Corporation’s bylaws (the “Bylaws”);
provided, however, that any such alteration, amendment, repeal or adoption that relates to
or affects in any way the criteria for, qualifications of, or requirement that the Corporation
maintain at least one “Independent Director” (as defined in the Seventh Article), must receive the
prior affirmative vote or written consent of each Independent Director.




          SIXTH: Elections of directors need not be by written ballot unless, and to the extent, so
provided in the Bylaws.




          SEVENTH: The Corporation shall at all times (except as noted hereafter in the event of death,
incapacity, resignation or removal) have at least one director (an “Independent Director”) who (a)
is not and has not, during the past five years, been a stockholder (whether direct, indirect or
beneficial), customer, advisor or supplier of Seller or any of its affiliates (provided
that indirect stock ownership of Seller or of any affiliate by any person through a mutual fund or
similar diversified investment pool shall not disqualify such person from being an Independent
Director unless such person maintains direct or indirect control of the investment decisions of
such mutual fund or similar diversified investment pool); (b) is not and has not, during the past
five years, been a director, officer, employee, affiliate or associate of Seller or any of its
affiliates (other than the Corporation) (Seller and its affiliates other than the Corporation being
hereinafter referred to as the “Corporate Group”); (c) is not a person related to any person
referred to in clauses (a) and (b); (d) is not and has not, during the past five years, been a
trustee, conservator or receiver for any member of the Corporate Group; and (e) has (i) prior
experience as an independent director for a corporation whose charter documents required the
unanimous consent of all independent directors thereof before such corporation could consent to the




2









 




institution of bankruptcy or insolvency proceedings against it or could file a petition seeking
relief under any applicable federal or state law relating to bankruptcy and (ii) at least three
years of employment experience with one or more entities that provide, in the ordinary course of
their respective businesses, advisory, management or placement services to issuers of
securitization or structured finance instruments, agreements or securities. The Corporation shall
cause each Independent Director to be paid a fee of at least $ 1,000 per year. In the event of the
death, incapacity, resignation or removal of any Independent Director, the Board shall promptly
appoint a replacement Independent Director. The Board shall not vote on any matter requiring the
vote of an Independent Director under this Certificate of Incorporation unless at least one
Independent Director is then serving on the Board.




          EIGHTH: To the extent permitted under the Delaware General Corporation Law, none of the
Corporation’s directors shall be liable to the Corporation or its stockholders for monetary damages
as a result of breaching any fiduciary duty as a director. Any repeal or modification of this
Eighth Article by the Corporation’s stockholders shall be prospective only, and shall not adversely
affect any limitation on the personal liability of any director of the Corporation existing at the
time of such repeal or modification.




          NINTH: Subject to the limitations of an Independent Director in the Seventh Article, to the
extent permitted under the Delaware General Corporation Law, any person (including stockholders,
directors, officers and employees of the Corporation or any affiliate of the Corporation) may
engage in or possess an interest in other business ventures of every nature and description,
independently or with others, whether such ventures are competitive with the Corporation or
otherwise, and neither the Corporation nor its stockholders shall have any right in or to such
independent ventures or to the income or profits derived therefrom.




          TENTH: Notwithstanding any other provision of this Certificate of Incorporation and any
provision of law, the Corporation shall not do any of the following:





     (a) engage in any business or activity other than as set forth in the Third Article
hereof;




     (b) without the affirmative vote of all of the Board members (which must include
the affirmative vote of at least one duly appointed Independent Director), (i)
dissolve or
liquidate, in whole or in part, or institute proceedings to be adjudicated bankrupt or
insolvent, (ii) consent to the institution of bankruptcy or insolvency proceedings
against
it, (iii) file a petition seeking or consenting to reorganization or relief under any
applicable federal or state law relating to bankruptcy or insolvency, (iv) consent to
the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other
similar
official) of the Corporation or a substantial part of its property, (v) make a general
assignment for the benefit of creditors, (vi) admit in writing its inability to pay
its debts
generally as they become due or (vii) take any corporate action in furtherance of the
actions set forth in clauses (i) through (vi) of this paragraph;



3









 






     (c) without the affirmative vote of all of the Board members (which must include
the affirmative vote of at least one duly appointed Independent Director) merge or
consolidate with any other corporation, company or entity or, except to the extent
contemplated by the Third Article hereof, sell all or substantially all of its assets
or
acquire all or substantially all of the assets or capital stock or other ownership
interest of
any other corporation, company or entity; or




     (d) without the affirmative vote of all of the Board members (which must include
the affirmative vote of at least one duly appointed Independent Director), incur or
assume
any indebtedness for borrowed money except (i) indebtedness contemplated by paragraph
(c) of the Third Article hereof or (ii) indebtedness to Seller for the purchase of
Receivables on a deferred payment basis and incurred pursuant to the Purchase
Agreement.



          When voting on whether the Corporation will take any action described in paragraph (b), (c) or
(d) above, each Director shall owe its primary fiduciary duty or other obligation to the
Corporation (including the Corporation’s creditors) and not to the stockholders (except as may
otherwise be required by the Delaware General Corporation Law). Every stockholder of the
Corporation shall be deemed to have consented to the foregoing by virtue of such stockholder’s
consent to this Certificate of Incorporation.




     ELEVENTH: The Corporation shall ensure at all times that (a) it conducts its business from an
office that is separate and distinct from those of each member of the Corporate Group, even if such
office space is subleased from, or is on or near premises occupied by, a Corporate Group member,
(b) it maintains separate corporate records and books of account from those of each member of the
Corporate Group, (c) none of the Corporation’s assets will be commingled with those of any member
of the Corporate Group; (d) any employee, consultant or agent of the Corporation or any other
operating expense incurred by the Corporation, will be paid from the assets of the Corporation; and
(e) it maintains an arm’s length relationship with Seller and each other member of the Corporate
Group.



     TWELFTH: The Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation in any manner now or hereafter provided herein or by
statute; provided, however, that the Corporation shall not amend, alter, change or repeal
any provision of the Third, Fifth, Seventh, Tenth, Eleventh, or Twelfth Article of this Certificate
of Incorporation (the “Restricted Articles”) without the affirmative vote of all (which shall be at
least one) Independent Directors, and provided, further, that the Corporation shall not
amend or change any provision of any Article other than the Restricted Articles so as to be
inconsistent with the Restricted Articles.



4









 





     THIRTEENTH: The sole incorporator’s name and mailing address are as follows:



	 	 	 	 	 
	 

	 	Carter Strong
	 	1050 Connecticut Avenue, N.W.
	 

	 	 	 	Washington, D.C. 20036-5339






          THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the Delaware General Corporation Law, makes this
Certificate, hereby declaring and certifying that the facts herein stated are true, and
accordingly
has hereunto set his hand this 14th day of August 1997




	 	 	 	 	 
	 	 	 
	 	                                              /s/  Carter Strong
 	 
	 	Carter Strong 	 
	 	Incorporator 	 
	 




5











 





BYLAWS




OF




NMC FUNDING CORPORATION*




ARTICLE I




OFFICES




     Section 1. The registered office of NMC Funding Corporation (the “Corporation”)
shall be in the City of Wilmington, State of Delaware.



     Section 2. The Corporation may also have offices at such other places both within and without
the State of Delaware as the board of directors (the “Board”) may from time to time determine or
the Corporation’s business may require.



     Section 3. The Corporation shall maintain a business office through which its business will be
conducted separate from those of National Medical Care, Inc. and its affiliates.



ARTICLE II




MEETINGS OF STOCKHOLDERS




     Section 1. Meetings of stockholders shall be held at any place within or outside the State of
Delaware designated by the Board. In the absence of any such designation, stockholders’ meetings
shall be held at the Corporation’s principal executive office.



     Section 2. The annual meeting of stockholders shall be held each year on a date and at a time
designated by the Board. At each annual meeting, directors shall be elected and any other proper
business may be transacted.



     Section 3. A majority of the Corporation’s capital stock outstanding and entitled to vote at
any meeting of stockholders, the holders of which are present in person or represented by proxy,
shall constitute a quorum for the transaction of business except as otherwise provided by law, by
the Corporation’s Certificate of Incorporation (the “Certificate of Incorporation”), or by these
Bylaws. A quorum, once established, shall not be broken by the withdrawal of enough votes to leave
less than a quorum and the votes present may continue to transact business until adjournment. If,
however, such quorum shall not be present or represented at any meeting of the stockholders, a
majority of the voting stock represented in person or by proxy may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a





 




			
	*	 	As duly adopted by the Corporation’s sole incorporator on August 14, 1997 and by the Board as of
August 15, 1997.
















 







quorum shall be present or represented. At such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been transacted at the
meeting as originally notified. If the adjournment is for more than 30 days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote thereat.




     Section 4. When a quorum is present at any meeting, the vote of the holders of a majority of
the stock having voting power present in person or represented by proxy shall decide any question
brought before such meeting, unless the question is one upon which by express provision of the
statutes, or the Certificate of Incorporation, or these Bylaws, a different vote is required in
which case such express provision shall govern and control the decision of such question.



     Section 5. At each meeting of the stockholders, each stockholder having the right to vote may
vote in person or may authorize another person or persons to act for him by proxy appointed by an
instrument in writing subscribed by such stockholder and bearing a date not more than three years
prior to said meeting, unless said instrument provides for a longer period. All proxies must be
filed with the Corporation’s Secretary at the beginning of each meeting in order to be counted in
any vote at the meeting. Each stockholder shall have one vote for each share of stock having voting
power, registered in his name on the Corporation’s books on the record date set by the Board as
provided in Article V, Section 6 hereof. All elections shall be had and all questions decided by a
plurality vote.



     Section 6. Special meetings of the stockholders, for any purpose, or purposes, unless
otherwise prescribed by statute or by the Certificate of Incorporation, may be called by the
President and shall be called by the President or the Secretary at the request in writing of a
majority of the Board, or at the request in writing of stockholders owning a majority in amount of
the Corporation’s capital stock outstanding and entitled to vote. Such request shall state the
purpose or purposes of the proposed meeting. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.



     Section 7. Whenever stockholders are required or permitted to take any action at a meeting, a
written notice of the meeting shall be given which notice shall state the place, date and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting
is called. The written notice of any meeting shall be given to each stockholder entitled to vote at
such meeting not fewer than 10 nor more than 60 days before the date of the meeting. If mailed,
notice is given when deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the Corporation’s records.



     Section 8. The officer who has charge of the Corporation’s stock ledger shall prepare and
make, at least 10 days before every meeting of stockholders a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.




2









 







Such list shall be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least 10 days prior to the meeting,
either at a place within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is present.




     Section 9. Unless otherwise provided in the Certificate of Incorporation, any action required
to be taken at any annual or special meeting of stockholders, or any action which may be taken at
any annual or special meeting of such stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those stockholders who have not
consented in writing.



ARTICLE III




DIRECTORS




     Section 1. The number of directors which shall constitute the whole Board shall be not fewer
than two nor more than six. The directors need not be stockholders or citizens of the United States
or residents of the State of Delaware. The Corporation shall at all times, except as noted
hereafter, have at least one Independent Director (as such term is defined in the Certificate of
Incorporation). In the event of the death, incapacity, resignation or removal of any Independent
Director, or if any director acting as an Independent Director shall cease to satisfy the
eligibility conditions for an Independent Director, the Board shall promptly appoint a replacement
Independent Director; provided, however, that the Board shall not vote on any
matter requiring the vote of an Independent Director unless and until at least one Independent
Director has been duly appointed to serve on the Board. The directors shall be elected at the
annual meeting of the stockholders, except as provided in Section 2 of this Article, and each
director elected shall hold office until his successor is elected and qualified; provided,
however that unless otherwise restricted by the Certificate of Incorporation or by law, any
director or the entire Board may be removed, either with or without cause, from the Board at any
meeting of stockholders by a majority of the stock represented and entitled to wrote thereat.



     Section 2. Vacancies on the Board by reason of death, resignation, retirement,
disqualification, or increase in the authorized number of directors may, subject to Section 1
above, be filled by a majority of the directors then office, although less than a quorum, or by a
sole remaining director. The directors so chosen shall hold office until the next annual election
of directors and until their successors are duly elected and shall quality, unless sooner
displaced. If there are no directors in office, then an election of directors may be held in the
manner




3











 




provided by statute. If, at the time of filling any vacancy, the directors then in office shall
constitute less than a majority of the whole Board (as constituted immediately prior to any such
increase), the Court of Chancery may, upon application of stockholders holding at least ten percent
of the total number of the shares at the time outstanding having the right to vote for such
directors, summarily order an election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then in office.




     Section 3. The Corporation’s property and business shall be managed by or under the direction
of the Board. In addition to the powers and authorities by these Bylaws expressly conferred upon
them, the Board may exercise all such powers of the corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these Bylaws directed or
required to be exercised or done by the stockholders.



MEETING OF THE BOARD




     Section 4. The directors may hold their meetings and have one or more offices, and keep the
Corporation’s books outside of the State of Delaware.



     Section 5. Regular meetings of the Board may be held without notice at such time and place as
shall from time to time be determined by the Board.



     Section 6. Special meetings of the Board may be called by the President on forty-eight hours’
notice to each director, either personally, by telegram or by telecopy. Special meetings shall be
called by the President or the Secretary in like manner and on like notice on the written request
of two directors unless the Board consists of only one director; in which case special meetings
shall be called by the President or Secretary in like manner or on like notice on the written
request of the sole director.



     Section 7. At all meetings of the Board, one-half of the entire Board shall be necessary and
sufficient to constitute a quorum for the transaction of business, and the vote of a majority of
the directors present at any meeting at which there is a quorum, shall be the act of the Board,
except as may be otherwise specifically provided by statute, by the Certificate of Incorporation or
by these Bylaws and except that one Independent Director must be present to form a quorum for any
matter which, pursuant to the Certificate of Incorporation or these Bylaws, requires the vote of
each Independent Director. If a quorum shall not be present at any meeting of the Board, the
directors present thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present. If only one director is authorized,
such director shall constitute quorum.



     Section 8. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws,
any action required or permitted to be taken at any meeting of the Board or of any committee
designated by the Board (“Committee”) may be taken without a meeting, if all



4









 




members of the Board or Committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board or Committee.




     Section 9. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws,
members of the Board, or any Committee designated by the Board, may participate in a meeting of the
Board or any Committee, by means of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other, and such participation
in a meeting shall constitute presence in person at such meeting.



COMMITTEES OF DIRECTORS




     Section 10. The Board may, by resolution passed by a majority of the whole Board, designate
one or more Committees, each such Committee to consist of one or more of the Board members. The
Board may designate one or more directors as alternate members of any Committee, who may replace
any absent or disqualified member at any meeting of the Committee. In the absence or
disqualification of a member of a Committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously
appoint another Board member to act at the meeting in the place of any absent or disqualified
member. Any such Committee, to the extent provided in the resolution of the Board, and subject to
the requirements of Article III, shall have and may exercise all the powers and authority of the
Board in the management of the Corporation’s business and affairs, and may authorize the seal for
the Corporation to be affixed to all papers which say require it; but no such Committee shall have
the power or authority in reference to amending the Certificate of Incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange
of all or substantially all of the Corporation’s property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution, amending the
Bylaws, or taking any other action which, pursuant to the Certificate of Incorporation, requires
the vote of each Independent Director; and, unless the resolution or the Certificate of
Incorporation expressly so provides, no such Committee shall have the power or authority to declare
a dividend or to authorize the issuance of stock.



     Section 11. Each Committee shall keep regular minutes of its meetings and report the same to
the Board when required.



COMPENSATION OF DIRECTORS




     Section 12. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws,
the Board shall have the authority to fix the compensation of directors. The directors may be paid
their expenses, if any, of attendance at each Board meeting and may be paid a fixed sum for
attendance at each meeting of the Board or a stated salary as director; provided,
however, that services provided by any director which are determined by the Board to



5









 





be ministerial and of negligible value will not be compensated. No such payment shall preclude any
director from serving the Corporation in any other capacity and receiving compensation therefor.
Members of special or standing Committees may be allowed like compensation for attending Committee
meetings.




INDEMNIFICATION




     Section 13. The Corporation shall indemnify every person who was or is a party or is or was
threatened to be made a party to any action, suit, or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a director officer or
employee of the Corporation or, while a director, officer or employee of the Corporation, is or was
serving at the request of the Corporation as a director, officer, employee, agent or trustee of
another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise,
against expenses (including counsel fee), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with such action, suit or proceeding, to the full
extent permitted by applicable law.



ARTICLE IV




OFFICERS




     Section 1. The Corporation’s officers shall be chosen by the Board and shall include a
President, a Secretary, and a Treasurer. The Corporation may also have at the Board’s discretion
such other officers as are desired, including a chairman of the Board, one or more Vice Presidents,
one or more Assistant Secretaries and Assistant Treasurers, and such other officers as may be
appointed in accordance with the provisions of Section 2 hereof. If there are two or more Vice
Presidents, then one or more may be designated as Executive Vice President, Senior Vice President,
or other similar or dissimilar title. At the time of the election of officers, the directors may by
resolution determine the order of their rank. Any number of offices may be held by the same person,
unless the Certificate of Incorporation or these Bylaws otherwise provide.



     Section 2. The Board may appoint such other officers and agents as it shall deem necessary
who shall hold their offices for such terms and shall exercise such powers and perform such
duties, as shall be determined from time to time by the Board.



     Section 3. The salaries of all officers and agents of the Corporation shall be fixed by the
Board.



     Section 4. The Corporation’s officers shall hold office until their successors are chosen and
qualify in their stead. Any officer elected or appointed by the Board may be removed at any time by
the affirmative vote of a majority of the Board. If the office of any officer or officers becomes
vacant for any reason, the vacancy shall be filled by the Board.



6









 





CHAIRMAN OF THE BOARD




     Section 5. The Chairman of the Board, if such an officer be elected, shall, if present,
preside at all meetings of the Board and exercise and perform such other powers and duties as may
be from time to time assigned to him by the Board or prescribed by these Bylaws. If there is no
President, the Chairman of the Board shall in addition be the Corporation’s Chief Executive Officer
and shall have the powers and duties prescribed in Section 6 of this Article IV.



PRESIDENT




     Section 6. Subject to such supervisory powers, if any, as may be given by the Board to the
Chairman of the Board, if there be such an officer, the President shall be the Corporation’s Chief
Executive Officer and shall, subject to the Board’s control, have general supervision, direction
and control of the Corporation’s business and officers. He shall preside at all meetings of the
stockholders and, in the absence of the Chairman of the Board, or if there be none, at all Board
meetings. He shall be an ex-officio member of all Committees and shall have the general powers and
duties of management usually vested in the office of President and Chief Executive Officer of
corporations, and shall have such other powers and duties as may be prescribed by the Board or
these Bylaws.



VICE PRESIDENTS




     Section 7. In the absence or disability of the President, the Vice Presidents in order of
their rank as fixed by the Board, or if not ranked, the Vice President designated by the Board,
shall perform all the duties of the President, and when so acting shall have all the powers of and
be subject to all the restrictions upon the President. The Vice Presidents shall have such other
duties as from time to time may be prescribed for them, respectively, by the Board.



     Section 8. The Secretary shall attend all Board meetings and all meetings of the stockholders
and record all votes and the minutes of all proceedings in a book to be kept for that purpose; and
shall perform like duties for the standing Committees when required by the Board. He shall give, or
cause to be given, notice of all meetings of the stockholders and of the Board, and shall perform
such other duties as may be prescribed by the Board or these Bylaws. He shall keep in safe custody
the seal of the Corporation, and when authorized by the Board, affix the same to any instrument
requiring it, and when so affixed it shall be attested by his signature or by the signature of an
Assistant Secretary. The Board may give general authority to any other officer to affix the seal of
the Corporation and to attest the affixing by his signature.



     Section 9. The Assistant Secretary, or if there be more than one, the Assistant Secretaries in
the order determined by the Board, or if there be no such determination, the Assistant Secretary
designated by the Board, shall, in the absence or disability of the Secretary, perform the duties
and exercise the powers of the Secretary and shall perform such other duties and have such other
powers as the Board may from time to time prescribe.



7









 





TREASURER AND ASSISTANT TREASURER




     Section 10. The Treasurer shall have the custody of the corporate funds and securities and
shall keep full and accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all moneys and other valuable effects, in the name and to the credit
of the Corporation, in such depositories as may be designated by the Board. He shall disburse the
Corporation’s funds as may be ordered by the Board, taking proper vouchers for such disbursements,
and shall render to the Board, at its regular meetings, or when the Board so requires, an account
of all his transactions as Treasurer and of the Corporation’s financial condition. If required by
the Board, he shall give the Corporation a bond, in such sum and with such surety or sureties as
shall be satisfactory to the Board, for the faithful performance of the duties of his office and
for the restoration to the Corporation, in case of his death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.



SECRETARY AND ASSISTANT TREASURER




     Section 11. The Assistant Treasurer, or if there shall be more than one, the Assistant
Treasurers in the order determined by the Board, or if there be no such determination, the
Assistant Treasurer designated by the Board, shall, in the absence or disability of the Treasurer,
performs the duties and exercise the powers of the Treasurer and shall perform such other duties
and have such other powers as the Board may from time to time prescribe.



ARTICLE V




CERTIFICATES OF STOCK




     Section 1. Every holder of stock of the Corporation shall be entitled to have a certificate
signed by, or in the name of the Corporation by, the Chairman or Vice Chairman of the Board, or the
President or a Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer or
an Assistant Treasurer of the Corporation, certifying the number of shares represented by the
certificate owned by such stockholder in the Corporation.



     Section 2. Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent, or registrar at the date of issue.



     Section 3. If the Corporation shall be authorized to issue more than one class of stock or
more than one series of any class, the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series thereof and the
qualification, limitations or restrictions of such preferences and/or rights shall be set forth in
full



8









 




or summarized on the face or back of the certificate which the Corporation shall issue to represent
such class or series of stock, provided that, except as otherwise provided in section 202 of the
General Corporation Law of the State of Delaware, in lieu of the foregoing requirements, there may
be set forth on the face or back of the certificate, which the Corporation shall issue to represent
such class or series of stock, a statement that the Corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.




LOST, STOLEN OR DESTROYED CERTIFICATES




     Section 4. The Board may direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen
or destroyed, upon the miking of an affidavit of that fact by the a person claiming the certificate
of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or
certificates, the Board may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to have been lost, stolen or
destroyed.



TRANSFER OF STOCK




     Section 5. Upon surrender to the Corporation, or the Corporation’s transfer agent, of a
certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation
or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the
person entitled thereto, cancel the old certificate and record the transaction upon its books.



FIXING RECORD DATE




     Section 6. In order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of the stockholders, or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful action, the Board
may fix a record date which shall not be more than 60 nor fewer than 10 days before the date of
such meeting, nor more than sixty days prior to any other action. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board may fix a new record date for the
adjourned meeting.



9









 





REGISTERED STOCKHOLDERS




     Section 7. The Corporation shall be entitled to treat the holder of record of any share or
shares of stock as the holder in fact thereof and accordingly shall not be bound to recognize any
equitable or other claim or interest in such share on the part of any other person, whether or not
it shall have express or other notice thereof, except as expressly provided by the laws of the
State of Delaware.



ARTICLE VI




GENERAL PROVISIONS




 DIVIDENDS




     Section 1. Dividends upon the Corporation’s capital stock, subject to the
provisions of the Certificate of Incorporation, if any, may be declared by the Board at any regular
or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in capital
stock, subject to the provisions of the Certificate of Incorporation.



     Section 2. Before payment of any dividend there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the directors from time to time, in their
absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or for such other
purpose as the directors shall think conducive to the interests of the Corporation, and the
directors may abolish any such reserve. The Corporation will not pay dividends out of funds other
than retained earnings unless the Board determines that the funds to be paid as dividends are no
longer needed by the Corporation in the operations of its business and that the Corporation will
not require any additional capital contributions after the payment of such dividend.



CHECKS




     Section 3. All checks, drafts or other orders for the payment of money issued in the name of
the Corporation shall be signed by such officers, employees or agents of the Corporation as shall
from time to time be designated by the Chairman of the Board, the President, the Vice
President-Finance, the Treasurer or an Assistant Treasurer.



     All funds of the Corporation not otherwise employed shall be deposited from time to time to
the credit of the Corporation in such banks, trust companies or other depositories as shall from
time to time be designated by the Chairman of the Board, the President, the Vice President-Finance,
the Treasurer or an Assistant Treasurer; and such officers may designate any type of depository
arrangement (including but not limited to depository arrangements resulting in net debits against
the Corporation) as from time to time offered or available.



10









 





FISCAL YEAR




     Section 4. The Corporation’s fiscal year shall be fixed by resolution of the Board.



SEAL




     Section 5. The corporate seal shall have inscribed thereon the name of the Corporation, the
year of its organization and the words “Corporate Seal, Delaware.” Said seal may be used by causing
it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.



NOTICES




     Section 6. Whenever, under the provisions of the statutes or of the Certificate of
Incorporation or of these Bylaws, notice is required to be given to any director or stockholder, it
shall not be construed to mean personal notice, but such notice may be given in writing, by mail,
addressed to such director or stockholder, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time
when the same shall be deposited in the United States mail. Notice to directors may also be given
by telegram.



     Section 7. Whenever any notice is required to be given under the provisions of the statutes or
of the Certificate of Incorporation or of these Bylaws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time stated therein, shall
be deemed to be equivalent.



ANNUAL STATEMENT




     Section 8. The Board shall present at each annual meeting, and at any special meeting of the
stockholders when called for by vote of the stockholders, a full and clear statement of the
Corporation’s business and condition.



ARTICLE VII




AMENDMENTS




     Section 1. These Bylaws may be altered, amended or repealed or new Bylaws may be adopted by
the stockholders or by the Board, when such power is conferred upon the Board by the Certificate of
Incorporation, at any regular meeting of the stockholders or of the Board or at any special meeting
of the stockholders or of the Board if notice of such alteration, amendment, repeal or adoption of
new Bylaws is contained in the notice of such special meeting; provided, however, that any
such alteration, amendment, repeal or adoption that relates to or effects in any way the criteria
for, qualifications of, or requirement that the Corporation maintain




11









 







one Independent Director and one Independent Officer must receive the prior affirmative vote or
written consent of each Independent Director. If the power to adopt, amend or repeal Bylaws is
conferred upon the Board by the Certificate of Incorporation, it shall not divest or limit the
power of the stockholders to adopt, amend or repeal Bylaws.





12









 








NMC FUNDING CORPORATION




Action by Unanimous Written Consent of the Board of Directors

In Lieu of a Meeting




October 16, 2008




     The undersigned, being all the Directors of NMC Funding Corporation, a Delaware corporation
(the “Corporation”), hereby consent to the adoption of the following resolutions, which shall be
treated as resolutions for all purposes and as fully as if said resolutions were adopted at a duly
called and held meeting of the Board of Directors, effective as of the date set forth above:



     RESOLVED: That the Fourth Amended and Restated Transfer and Administration Agreement by and
among the Corporation, as Transferor, National Medical Care, Inc., as Collection Agent, the
entities party thereto as Conduit Investors, the financial institutions party thereto as Bank
Investors, the financial institutions party thereto as Administrative Agents, and WestLB AG, New
York Branch, as Agent (the “Agreement”), as previously provided to the Board, be and the same
hereby is approved and adopted, and that each officer of the Corporation be and each hereby is
authorized and directed, acting in the name of and on behalf of the Corporation to execute and
deliver the Agreement, or one or more instruments evidencing the Agreement, with such changes as
any such officer shall, in his sole discretion, deem necessary or advisable, the execution and
delivery of the same to be conclusive evidence of the authority granted hereunder.



     RESOLVED: That each officer of the Corporation be, and each of them individually hereby is,
authorized and directed, in the name and on behalf of the Corporation, to (a) negotiate, execute
and deliver such other instruments, agreements and/or documents required by, in furtherance of, or
in connection with the Agreement (collectively with the Agreement, the “Transaction Documents”)
with such changes or additions thereto as such officers may approve, the execution by any of such
officers of any such Transaction Documents or the doing by such officer of any action in connection
with the foregoing establishing conclusively such officer’s approval and the approval of the Board
of Directors, and (b) cause the Corporation to perform its obligations thereunder.



     RESOLVED: That all action taken and/or any resolutions adopted by the Corporation’s current
Board of Directors and officers in connection with the negotiation and execution of the
Transaction Documents be, and hereby are, ratified, affirmed and approved.



[Signature page to follow]




 









 






          IN WITNESS WHEREOF, the undersigned have executed this consent effective as of the date set
forth above.



	 	 	 	 	 
	 	                                                          /s/ Michael Brosnan
 	 
	 	Michael Brosnan 	 



	 	 	 	 	 
	 	                                                          /s/ Mark Fawcett
 	 
	 	Mark Fawcett 	 



	 	 	 	 	 
	 	
 	 
	 	Jill A. Gordon 	 




 









 





          IN WITNESS WHEREOF, the undersigned have executed this consent effective as of the date set
forth above.



	 	 	 	 	 
	 	
 	 
	 	Michael Brosnan 	 



	 	 	 	 	 
	 	
 	 
	 	Mark Fawcett 	 



	 	 	 	 	 
	 	/s/ Jill A. Russo 
 	 
	 	Jill A. Russo 	 




 









 








Certificate of Secretary



I, the undersigned, being the Secretary of National Medical Care, Inc, a Delaware corporation
(the “Company”), DO HEREBY CERTIFY that:



The person named below has been duly appointed, is duly qualified as and is on the date hereof an
officer of the Company, and the signature below set opposite his name is his genuine signature.




	 	 	 	 	 
	Name	 	Office	 	Signature
	 
	 	 	 	 
	Mark Fawcett

	 	Treasurer
	 	/s/ Mark Fawcett
	 

	 	 	 	 




Attached hereto as Exhibit A is a true and complete copy of the Company’s
Certificate/Articles of Incorporation, or its equivalent, as filed in the Office of the
Secretary of State, or its equivalent, of the State of incorporation, together with all
amendments thereto adopted through the date hereof.



Attached hereto as Exhibit B is a true and complete copy of the Company’s by-laws as in effect on
the date hereof, together with all amendments thereto adopted through the date hereof.



Attached hereto as Exhibit C are true and correct copies of the resolutions duly adopted by the
Company’s board of directors on October 16, 2008 by written consent, which resolutions have not
been revoked, modified, amended, or rescinded and are in full force and effect as of the date
hereof. Except as attached hereto as Exhibit C, no resolutions have been adopted by the Company’s
board of directors which deal with matters set forth in Exhibit C.



IN WITNESS WHEREOF, I have hereunto set my hand this 16th day of October, 2008.




	 	 	 	 	 
	 	                                                      /s/ Douglas G. Kott
 	 
	 	Douglas G. Kott 	 
	 	Secretary 	 
	 




 











 





PAGE 1









     I,
 GLENN C. KENTON, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY CERTIFY THE
ATTACHED 19 A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF INCORPORATION OF NMC HOLDING CORP,
FILED IN THIS OFFICE ON THE SIXTH DAY OF AUGUST, A. D. 1984, AT 10 O’CLOCK A.M.





	 	 	 	 	 	 	 
	 	 	/s/ Glenn C. Kenton

	 	 	 
	 	 	Glenn C. Kenton, Secretary of State

	 
	 	 	 	 	 	 
	 

	 	 	 	AUTHENTICATION:
	 	10301820
	734219006

	 	 	 	     DATE:
	 	08/06/1984






 









 






	 	 	 
	CERTIFICATE
OF INCORPORATION


of


NMC HOLDING CORP.

	 	 







     FIRST. The name of the Corporation is: NMC Holding Corp.



     SECOND. The address of its registered office in the State of Delaware is Corporation Trust
Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust Company.



     THIRD. The nature of the business or purposes to be conducted or promoted by
the Corporation is as follows:



     To engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of
Delaware.



     FOURTH. (A) The Corporation shall have the authority to issue two classes of stock to be
designated, respectively, “Common Stock” and “preferred stock”. The total number of shares
which the Corporation is authorized to issue is 22,000,000 shares, $.01 par value per share,
of which 17,000,000 shares shall be Common Stock and 5,000,000 shares shall be Preferred
Stock.




                        (B) The
Preferred Stock may be issued from time to time in one or more series. The Board of
Directors of the Corporation is hereby authorized, within the limitations and restrictions stated
in this Certificate of Incorporation, to determine or alter the rights, preferences, powers,
privileges and the restrictions, qualifications and limitations granted to or imposed upon any
wholly unissued series of Preferred Stock, and the number of shares constituting any such series
and the designation thereof, and to increase or decrease the number of shares constituting any such
series; and to increase or decrease the number of shares of any series subsequent to the issue of
shares of that series, but not below the number of shares of such series then outstanding. In case
the number of shares of any series shall be so decreased, the shares then constituting such
decrease shall resume the status which they had prior to the adoption of the resolution
originally fixing the number of shares of such series.



     FIFTH.
The name and mailing address of the sole incorporator are as
follows:



	 	 	 	 	 
	NAME	 	 	 	MAILING ADDRESS
	Paul P. Brountas

	 	 
	 	60 State Street
	 

	 	 	 	Boston, MA 02109






 









 





     SIXTH. In furtherance of and not in limitation of powers conferred by statute, it is further
provided:



          1. Election of directors need not be by written
ballot.




          2. The Board of Directors is expressly authorized to
adopt, amend or repeal the By-Laws of the Corporation.




     SEVENTH. Whenever a compromise or arrangement is proposed between this corporation and its
creditors or any class of them and/or between this corporation and its stockholders or any class of
them, any court of equitable jurisdiction within the State of Delaware may, on the application in a
summary way of this corporation or of any creditor or stockholder thereof, or on the application of
any receiver or receivers appointed for this corporation under the provisions of Section 291 of
Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or
receivers appointed for this corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or
class of stockholders of this corporation, as the case may be, to be summoned in such manner as the
said court directs. If a majority in number representing three-fourths in value of the creditors
or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as
the case may be, agree to any compromise or arrangement and to any reorganization of this
corporation as consequence of such compromise or arrangement, the said compromise or arrangement
and the said reorganization shall, if sanctioned by the court to which the said application has
been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or
class of stockholders, of this corporation, as the case may be, and also on this corporation.



     EIGHTH. The Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by
statute and the Certificate of Incorporation, and all rights conferred upon stockholders herein are
granted subject to this reservation.



     EXECUTED at Boston, Massachusetts on August 3, 1984.



	 	 	 	 	 
	 	 	 
	 	            /s/ Paul P. Brountas
 	 
	 	Paul P. Brountas 	 
	 	Incorporator 	 
	 




2









 





PAGE 1









 






     I, MICHAEL RATCHFORD, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE
ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF RESTATED CERTIFICATE OF INCORPORATION OF
“NMC HOLDING CORP.” FILED IN THIS OFFICE ON THE NINETEENTH DAY OF DECEMBER, A.D. 1984, AT 10
O’CLOCK A.M.



* * * * * * * * * *









	 	 	 	 	 	 	 	 	 
	    921895304	 	/s/ Michael Ratchford	 	 
	 	 	 	 	 
	 

	 	 	 	SECRETARY OF STATE	 	 	 	 
	 

	 	 	 	AUTHENTICATION:
	 	*3511612
	 	 
	 

	 	 	 	DATE:
	 	07/08/1992	 	 






 









 





	 	 	 
	RESTATED CERTIFICATE OF INCORPORATION


OF


NMC HOLDING CORP.

	 	 








Pursuant to Section 242 and 245 of the General

Corporation Law of the State of Delaware




          The
undersigned, Constantine L. Hampers, M.D. and Ellen B. Corenswet, President and Assistant
Secretary, respectively, of NMC Holding Corp., a corporation organized and existing under the the
General Corporation Law of the State of Delaware (the
“Corporation”), the Certificate of
Incorporation of which was filed in the Office of the Secretary of State of Delaware on August 6,
1984, do hereby certify that this Restated certificate of incorporation was duly adopted by the
Board of Directors and the stockholders of the Corporation in accordance with the provisions of
Sections 242 and 245 of the General Corporation Law of the State of Delaware.




          FIRST. The name of the Corporation is NMC Holding Corp.




          SECOND. The address of its registered office in the State of Delaware is Corporation Trust
Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust Company.




          THIRD. The nature of the business or purposes to be conducted or promoted is as
follows:




          To acquire and hold, directly or indirectly, all of the outstanding shares of capital stock of
Rational Medical Care, Inc.




          To engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware.




          FOURTH. (A) The Corporation is authorized to issue two classes of stock to be designated,
respectively, “Common Stock” and “Preferred Stock.” The total number of shares which the
Corporation is authorized to issue is 20,000,000 shares, $.01 par value per share, of which
15,000,000 shares shall be Common Stock and 5,000,000 shares shall be Preferred Stock.




                             (B) The Preferred Stock may be issued from
time to time in one or more series. The Board of Directors of the Corporation is hereby authorized,
within the limitations and restrictions stated in this Restated Certificate of Incorporation, to
determine or alter the rights, preferences, powers, privileges and the restrictions, qualifications
and limitations granted to or




 









 







imposed upon any wholly unissued series of Preferred Stock, and the number of shares constituting
any such series and the designation thereof; and to increase or decrease the number of shares
constituting any such series; and to increase or decrease the number of shares of any series
subsequent to the issue of shares of that series, but not below the number of shares of such series
which have been issued. In case the number of shares constituting any series shall be so
decreased, the shares then constituting such decrease shall resure the status which they had prior
to the adoption of the resolution originally fixing the number of shares of such series.




                    (C) Three Million Five Hundred Eighty
Thousand (3,580,000) shares of the authorized and unissued Preferred Stock of the Corporation are
hereby designated “Series A Convertible Preferred Stock” (hereinafter referred to as “Series A
Stock”). Nine Hundred Seventeen Thousand (917,000) shares of the authorized and unissued Preferred
Stock of the Corporation are hereby designated “Series B Convertible Preferred Stock” (hereinafter
referred to as “Series B Stock”). The “Series A Stock and the series B Stock” are hereinafter
referred to collectively as the “Series Preferred Stock.” Four Hundred Fifty Thousand (450,000)
shares of the authorized and unissued Preferred Stock of the Corporation are hereby designated “12%
Cumulative Redeemable Preferred Stock” (the “12% Preferred
Stock”). The rights, preferences,
powers, privileges and restrictions, qualifications and limitations granted to or imposed upon the
shares of Series Preferred Stock and the 12% Preferred Stock shall be as follows:



     1. Dividends.



          (a) (i) In each fiscal year of the Corporation, the holders of the 12% Preferred Stock shall
be entitled to receive, when and as declared by the Board of Directors of the Corporation out of
the funds legally available for that purpose, dividends payable in cash at the rate of twelve per
cent (12%) per annum on the Liquidation Value (as defined in subsection 2(a) hereof) of such
shares, and no more, payable quarterly on the first day of March, June, September and December in
each year (each such date being referred to herein as a “Quarterly Dividend Date”). The dividends
on shares of the 12% Preferred Stock shall be cumulative and shall commence to accrue from the date
of issue of such shares, so that if in any year dividends on the 12% Preferred Stock at the rate of
twelve per cent (12%) per annum of the Liquidation Value thereof shall not have been paid or
declared and set apart, the deficiency shall, except as otherwise provided in paragraph (ii) of
this subsection 1(a), remain payable by the Corporation to the holders of the 12% Preferred Stock.
Until all outstanding shares of the 12% Preferred Stock have been redeemed by the Corporation in
accordance with Sections 6 and 7 hereof, no dividend or other distribution payable in cash shall be
paid on any shares of the Corporation’s Series A Stock, Series B Stock or Common Stock.




-2-









 





               (ii) In the event that the Corporation shall, for any reason, be unable to pay or declare and
set apart any dividend on the 12% Preferred Stock as provided in paragraph (i) of this subsection
l(a) (“Defaulted Dividend”), the Corporation shall, to the
extent it may lawfully do so, issue in
lieu of the Defaulted Dividend, a stock dividend of additional shares of the 12% Preferred Stock
having a Liquidation Value equal to the amount of the Defaulted Dividend (rounded to the nearest
whole share with one-half share rounded upward).



          (b) Subject
to subsection 1(a), in each fiscal year of the Corporation the holders of shares
of Series B Stock shall be entitled to receive before any cash dividends shall be declared and paid
upon or set aside for the Series A Stock or the Common Stock in such fiscal year, when, as and if
declared by the Board of Directors of the Corporation out of the funds legally available for that
purpose, dividends payable in cash in an amount per share for such fiscal year at least equal to
the product of (a) $.65, multiplied by (b) the number of whole shares of Common Stock into which
each such share of Series B Stock is then convertible.




          (c) Subject to subsection 1(a), in each fiscal year of the Corporation, after payment shall
have been made to the holders of shares of Series B Stock of the full amount to which they are
entitled as aforesaid, the holders of the shares of Series A Stock and Series B Stock shall be
entitled to receive, before any cash dividends shall be paid upon or set aside for the Common Stock
in such fiscal year, when, as and if declared by the Board of Directors of the Corporation out of
the funds legally available for that purpose, dividends payable in cash in an amount per share for
such fiscal year at least equal to the product of (a) the per share amount, if any, of the cash
dividend declared, paid or set aside for the Common Stock during such fiscal year, multiplied by
(b) the number of whole shares of Common Stock into which each
such share of Series A Stock and Series B Stock is then
convertible.




     2. Liquidation, Dissolution or Winding Up.



          (a) (i) In the event of any voluntary or involuntary liquidation, dissolution or winding up
of the Corporation, the holders of the shares of 12% Preferred Stock then outstanding shall be
entitled to be paid out of the assets of the Corporation available for distribution to its
stockholders, before any payment shall be made to the holders of Series Preferred Stock, Common
Stock or any other class or series of stock ranking on liquidation junior to the 12% Preferred
Stock by reason of their ownership thereof, an amount equal to $600 (the “Liquidation Value”) per
share (subject to appropriate adjustment in the event of any stock dividend, stock split,
combination or other similar recapitalization affecting such shares) plus accrued but unpaid
dividends (and, in the event that such payment shall be made on a date other





-3-









 







than a Quarterly Dividend Date, together with an additional dividend, at the rate of twelve percent
(12%) per annum on the Liquidation Value thereof, in respect of the period from the last Quarterly
Dividend Date to and including the date of such payment). If upon any such liquidation,
dissolution or winding up of the Corporation the assets of the Corporation available for
distribution to its stockholders shall be insufficient to pay the holders of shares of 12%
Preferred Stock the full amount to which they shall be entitled, the holders of shares of 12%
Preferred Stock and any class or series of stock ranking on liquidation on a parity with the 12%
Preferred Stock shall share ratably in any distribution of such assets and funds of the Corporation
in proportion to the respective amounts which would otherwise be payable in respect of the shares
held by them upon such distribution if all amounts payable on or with respect to such shares were
paid in full.




               (ii) In the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Corporation, after payment shall have been made to the holders of shares of 12% Preferred Stock
of the full amount to which they are entitled as aforesaid, the holders of the shares of Series B
Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available
for distribution to its stockholders, before any payment shall be made to the holders of Series A
Stock or Common Stock or any other class or series of stock ranking on liquidation junior to the
Series B Stock by reason of their ownership thereof, an amount equal to $6.50 per share (subject to
appropriate adjustment in the event of any stock dividend, stock split, combination or other
similar recapitalization affecting such shares) plus accrued but unpaid dividends. If upon any
such liquidation, dissolution or winding up of the Corporation the remaining assets of the
Corporation available for distribution to its stockholders shall be insufficient to pay the holders
of shares of Series B Stock the full amount to which they shall be entitled, the holders of shares
of Series B Stock and any class or series of stock ranking on liquidation on a parity with the
Series B Stock shall share ratably in any distribution of the remaining assets and funds of the
Corporation in proportion to the respective amounts which would otherwise be payable in respect of
the shares held by them upon such distribution if all amounts payable on or with respect to such
shares were paid in full.



               (iii) In the event of any liquidation, dissolution or winding up of the Corporation, after
payment shall have been made to the holders of the shares of 12% Preferred Stock and Series B Stock
of the full amount to which they are entitled as aforesaid, the holders of the shares of Series A
Stock shall be entitled to be paid out of the assets of the Corporation available for distribution
to its stockholders, before any payment shall be made to the holders of Common Stock or any other
class or series of stock ranking on liquidation junior to the Series A Stock (such




-4-









 







Common
 Stock and other stock being collectively referred to as “Junior Stock”) an amount equal to
$1.40 per share (subject to appropriate adjustment in the event of any stock dividend, stock split,
combination or other similar recapitalization affecting such shares) plus accrued but unpaid
dividends. If upon any such liquidation, dissolution or winding up of the Corporation the remaining
assets of the Corporation available for distribution to its stockholders shall be insufficient to
pay the holders of the shares of Series A Stock the full amount to which they shall be entitled,
the holders of shares of Series A Stock and any class or series of stock ranking on liquidation on
a parity with the Series A Stock shall share ratably in any distribution of the remaining assets
and funds of the Corporation in proportion to the respective amounts which would otherwise be
payable in respect of the shares held by them upon such distribution if all amounts payable on or
with respect to such shares were paid in full.




          (b) After the payment of all preferential amounts required to be paid to the holders of the
12% Preferred Stock, and the Series Preferred Stock, upon the liquidation, dissolution or winding
up of the Corporation, the holders of the shares of Junior Stock then outstanding shall be entitled
to receive the remaining assets and funds of the Corporation available for distribution to its
stockholders.




          (c) The merger or consolidation of the Corporation into or with another corporation (except if
the Corporation is the surviving entity and is not owned or controlled by any other corporation or
entity), or the sale of all or substantially all the assets of the Corporation, shall be deemed to
be a liquidation, dissolution or winding up of the Corporation for purposes of this Section 2
unless such merger or consolidation is not intended to effect a change in the ownership or control
of the Corporation or of its assets and is not intended to alter
materially the business or assets of the Corporation.




     3. Voting



          (a) Except as provided by law, by the provisions of subsections 3(b) and 3(c) below or by the
provisions establishing any other series of Preferred Stock, (i) each holder of outstanding shares
of Series Preferred Stock shall be entitled to the number of votes equal to the number of whole
shares of Common Stock into which the shares of Series Preferred Stock held by such holder are
convertible (as adjusted from time to time pursuant to Section 4 hereof), at each meeting of
stockholders of the Corporation (and for written actions of stockholders in lien of meetings) with
respect to any and all matters presented to the stockholders of the Corporation for their action or
consideration and (ii) the holders of 12% Preferred Stock shall not be entitled to vote with
respect to any matters presented to the stockholders of the Corporation for their action or
consideration. The holders of Series Preferred Stock shall vote together with
the holders of Common
Stock as a single class.




-5-









 





          (b) For so long as any shares of the 12% Preferred Stock shall remain outstanding, the holders
of shares of the 12% Preferred Stock, voting separately as a class, shall be entitled to elect
one-half of the number of directors which the Corporation would have (fixed by or in accordance
with the By-Laws of the Corporation) if there were no vacancies and shall be entitled to remove any
director so elected. Except as required by law or as set forth in subsection 3(c) below, the
holders of shares of the 12% Preferred Stock shall not be entitled to vote on any other matter on
which stockholders are entitled or permitted to vote; provided, however, that so long as any shares
of the 12% Preferred Stock shall be outstanding, affirmative action by the holders of the 12%
Preferred Stock, voting separately as a class, shall be required to amend this Restated Certificate
of Incorporation so as to increase or decrease the aggregate number of authorized shares of the 12%
Preferred Stock, increase or decrease the par value of the shares of the 12% Preferred Stock or
alter or change the powers, preferences or special rights of the shares of the 12% Preferred Stock
so as to affect them adversely. At all meetings of stockholders of the Corporation at which the
holders of the 12% Preferred Stock are entitled to vote, the presence in person or by proxy of
holders of a majority of the 12% Preferred Stock issued and outstanding as of the record date for
such meeting shall be required to constitute a quorum for the transaction of the business with
respect to which the holders of the 12% Preferred Stock are entitled to vote, and at all such
meetings (and for written actions of the holders of the 12% Preferred Stock in lieu
of meetings) the vote, in person or by proxy (or given in writing), of holders of a majority
of the 12% Preferred Stock issued and outstanding as of the record date for such meeting (or as of
the date of such written action) shall constitute the action of the holders of the 12% Preferred
Stock.




          (c) The Corporation shall not amend, alter or repeal the preferences, special rights or other
powers of any series of Preferred Stock outstanding so as to affect adversely such series without
the written consent or affirmative vote of the holders of a majority of the then outstanding shares
of such series, given in writing or by vote at a meeting, consenting or voting (as the case may be)
separately as a class. For this purpose, without limiting the generality of the foregoing, the
authorization or-issuance of any series of Preferred Stock with preference or priority over such
series as to the right to receive either dividends or amounts distributable upon liquidation,
dissolution or winding up of the Corporation shall be deemed to affect adversely such series. The
number of authorized shares of any series of Preferred Stock outstanding may be increased or
decreased (but not below the number of shares then outstanding) by the affirmative vote of the
holders of a majority of the then outstanding shares of such series of Preferred Stock voting as a
separate class.




     4. Optional
 Conversion. The holders of the Series Preferred Stock shall have
conversion rights as follows (the “Conversion Rights”) :



-6-









 





          (a) Right to Convert. Each share of Series Preferred Stock shall be convertible, at
the option of the holder thereof, at any time and from time to time,
into such number of fully paid
and nonassessable shares of Common Stock as is determined by dividing $1.40 in the case of the
Series A Stock and $6.50 in the case of the Series B Stock by the respective Conversion Prices of
the Series A Stock and the Series B Stock (as defined below) in effect at the time of conversion.
The conversion price at which shares of Common Stock shall be deliverable upon conversion of Series
Preferred Stock without the payment of additional consideration by the holder thereof (the
“Conversion Price”) shall initially be $1.40 in the case of
the Series A Stock and $6.50 in the
case of the Series B Stock. Such initial Conversion Price,
and the rate at which shares of Series Preferred Stock may be converted into shares of Common
Stock, shall be subject to adjustment as provided below.




     In the event of a liquidation of the Corporation, the Conversion Rights shall terminate at
the close of business on the first  full day preceding the date fixed for the payment of any
amounts distributable on liquidation to the holders of Series Preferred Stock.



          (b) Fractional Shares. No fractional shares of Common Stock shall be issued upon
conversion of the Series Preferred Stock. In lieu of any fractional shares to which the holder
would otherwise be entitled, the Corporation shall pay cash equal to such fraction multiplied by
the then effective Conversion Price.




          (c) Mechanics of Conversion.




               (i) In order for a holder of Series Preferred Stock to convert shares of Series Preferred
Stock into shares of Common Stock, such holder shall surrender the certificate or certificates for
such shares of Series Preferred Stock, at the office of the transfer agent for the Series Preferred
Stock (or at the principal office of the Corporation if the Corporation serves as its own transfer
agent), together with written notice that such holder elects to convert all or any number of the
shares of the Series Preferred Stock represented by such certificate or certificates. Such notice
shall state such holder’s name or the names of the nominees in which such holder wishes the
certificate or certificates for shares of Common Stock to be issued. If required by the
Corporation, certificates surrendered for conversion shall be endorsed or accompanied by a written
instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed by
the registered holder or his or its attorney duly authorized in writing. The date of receipt of
such certificates and notice by the transfer agent (or by the Corporation if the Corporation serves
as its own transfer agent) shall be the conversion date (“Conversion Date”). The Corporation
shall, as soon as practicable after the Conversion Date, issue and deliver at such




-7-









 







office to such holder of Series Preferred Stock, or to his or its nominees, a certificate or
certificates for the number of shares of Common Stock to which such holder shall be entitled,
together with cash in lieu of any fraction of a share.




               (ii) The Corporation shall at all times when the Series
Preferred Stock shall be outstanding,
reserve and keep available out of its authorized but unissued stock, for the purpose of effecting
the conversion of the Series Preferred Stock, such number of its duly authorized shares of Common
Stock as shall from time to time be sufficient to effect the conversion of all outstanding Series
Preferred Stock. Before taking any action which would cause an adjustment reducing the Conversion
Price below the then par value of the shares of Common Stock issuable upon conversion of the Series
Preferred Stock, the Corporation will take any corporate action which
may, in the opinion of its
counsel, be necessary in order that the Corporation may validly and legally issue fully paid and
nonassessable shares of Common Stock at such adjusted Conversion Price.



               (iii) Upon
any such conversion, no adjustment to the Conversion Price shall be made for any
accrued and unpaid dividends on the Series Preferred Stock surrendered for conversion or on the
Common Stock delivered upon conversion.



               (iv) All shares of Series Preferred Stock which shall have been surrendered for conversion as
herein provided shall no longer be deemed to be outstanding and all rights with respect to such
shares, including the rights, if any, to receive notices and to vote, shall immediately cease and
terminate on the Conversion Date, except only the right of the holders thereof to receive shares of
Common Stock in exchange therefor and payment of any accrued and
unpaid dividends thereon. Any
shares of Series Preferred Stock so converted shall be retired and cancelled and shall not be
reissued, and the Corporation may from time to time take such appropriate action as may be
necessary to reduce the authorized Series Preferred Stock accordingly.



          (d) Adjustments to Conversion Price for Diluting Issues:




               (i) Special Definitions. For purposes of this Subsection 4(d), the following
definition shall apply:



                    (A) “Option” shall mean rights, options or
warrants to subscribe for, purchase or otherwise acquire Common Stock or Convertible Securities,
excluding (1) options and/or stock awards granted to employees or consultants of the Corporation
pursuant to any employee option plan and/or employee stock purchase plan adopted by the Board of
Directors, and (2) an option granted to W.R. Grace & Co. to purchase 3,070,430 shares of Common
Stock at an exercise price of $1.09 per share (subject, in



-8-









 




the case of any options or shares excluded hereunder to appropriate adjustment for any stock
dividend, stock split, combination or other similar recapitalization affecting such shares).




                    (B) “Original Issue Date” shall mean the date on which a share of Series
Preferred Stock was first issued.



                    (C) “Convertible Securities” shall mean any evidences of indebtedness,
shares (other than Common stock and Series Preferred Stock) or other securities directly or
indirectly convertible into or exchangeable for Common Stock.



                    (D) “Additional Shares of Common Stock” shall
mean all shares of Common Stock issued (or, pursuant to Subsection 4(d)(iii) below, deemed to
be issued) by the Corporation after the Original Issue Date, other than shares of Common Stock
issued or issuable:




	 	(I)	 	upon conversion of
shares of Series Preferred Stock outstanding on the
Original Issue Date;
	 
	 	(II)	 	as a dividend or distribution on
Series Preferred Stock;
	 
	 	(III)	 	by reason of a dividend, stock split, split-up or other
distribution on shares of Common Stock excluded from
the definition of Additional Shares of Common Stock
by the foregoing clauses (I) and (II) or this clause
(III); or
	 
	 	(IV)	 	upon the exercise
of options or stock awards excluded from the definition
of “Option” in Subsection 4(d)(i)(A).





               (ii) No Adjustment of Conversion Price.  No
adjustment in the number of shares of Common Stock into which the Series Preferred Stock is
convertible shall be made, by adjustment in the applicable Conversion
Price thereof: (a)
unless the consideration per share (determined pursuant to Subsection 4(d)(v)) for an
Additional Share of Common Stock issued or deemed to be issued by the Corporation is less than
the applicable Conversion Price in effect on the date of, and immediately prior to, the issue
of such Additional Shares, or (b) if prior to such issuance, the Corporation receives written
notice from the holders of at least 66 2/3% of the then outstanding
shares of Series Preferred
Stock agreeing that no such adjustment shall be made as the result of the issuance of
Additional Shares of Common Stock.



-9-









 





               (iii) Issue of Securities Deemed Issue of Additional Shares of
Common Stock.



                    (A) Options
and Convertible Securities. If the Corporation at any time or from
time to time after the Original Issue Date shall issue any Options or Convertible
Securities or shall fix a record date for the determination of holders of any class of
securities entitled to receive any such Options or Convertible Securities, then the
maximum number of shares of Common Stock (as set forth in the instrument relating thereto
without regard to any provision contained therein for a subsequent adjustment of such
number) issuable upon the exercise of such Options or, in the case of Convertible
Securities and Options therefor, the conversion or exchange of such Convertible
Securities, shall be deemed to be Additional Shares of Common Stock issued as of the time
of such issue or in case such a record date shall have been fixed, as of the close of
business on such record date, provided that Additional Shares of Common Stock shall not
be deemed to have been issued unless the consideration per share (determined pursuant to
Subsection 4(d)(v) hereof) of such Additional Shares of Common Stock would be less than
the applicable Conversion Price in effect on the date of and immediately prior to such
issue, or such record date, as the case may be, and provided further that in any such
case in which Additional Shares of Common Stock are deemed to be
issued:



                         (I) no further adjustment in the
Conversion Price shall be made upon the subsequent issue of Convertible Securities or shares
of Common Stock upon the exercise of such Options or conversion or exchange of such
Convertible Securities;



                         (II) if such Options or Convertible
Securities by their terms provide, with the passage of time or otherwise, for any increase in the
consideration payable to the Corporation, or decrease in the number of shares of Common Stock
issuable, upon the exercise, conversion or exchange thereof, the Conversion Price computed upon the
original issue thereof (or upon the occurrence of a record date with respect thereto), and any
subsequent adjustments based thereon, shall, upon any such increase or decrease becoming effective,
be recomputed to reflect such increase or decrease insofar as it affects such Options or
the
rights of conversion or exchange under such Convertible Securities;



                         (III) no readjustment pursuant to clause
(II) above shall have the effect of increasing the Conversion Price to an amount which
exceeds the lower of (i) the Conversion Price on the original adjustment date, or (ii)
the Conversion Price that would have resulted from any issuance of Additional Shares of
Common Stock between the original adjustment date and such readjustment date; and



-10-









 





                         (IV) upon the expiration or termination
of any unexercised Option, the Conversion Price shall not be readjusted, but the Additional Shares
of Common Stock deemed issued as the result of the original issue of such Option shall not be
deemed issued for the purposes of any subsequent adjustment of the Conversion Price.



                    (B) Stock Dividends and Subdivisions. In the event the Corporation at any time or from
time to time after the Original Issue Date shall declare or pay any dividend on the Common Stock
payable in Common Stock, or effect a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in Common Stock), then Additional
Shares of Common Stock shall be deemed to have been issued:



                         (I) in the case of any such dividend,
immediately after the close of business on the record date for the determination of holders of any
class of securities entitled to receive such dividend, or



                         (II) in the case of any subdivision, at
the close of business on the date immediately prior to the date upon which such corporate action
becomes effective.



     If such record date shall have been fixed and such dividend shall not have been fully paid on
the date fixed therefor, the adjustment previously made in the applicable Conversion Price which
became effective on such record date shall be cancelled as of the close of business on such record
date, and thereafter the Conversion Price shall be adjusted pursuant to this Subsection 4(d)(iii)
as of the time of actual payment of such dividend.




	 	(iv)	 	Adjustment of Conversion Price Upon
Issuance of Additional Shares of Common Stock.





          In the event the Corporation shall issue Additional Shares of Common Stock (including
Additional Shares of Common Stock deemed to be issued pursuant to Subsection 4(d)(iii)), without
consideration or for a consideration per share less than the applicable Conversion Price in effect
on the date of and immediately prior to such issue, then and in such event, such Conversion Price
shall be reduced, concurrently with such issue, to a price (calculated to the nearest cent)
determined by multiplying such Conversion Price by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding immediately prior to such issue plus the number of
shares of Common Stock which the aggregate consideration received by the Corporation for the total
number of Additional Shares of Common Stock so issued would purchase
at such Conversion Price; and
the denominator of which shall be the number of shares of Common Stock




-11-









 




outstanding immediately prior to such issue plus the number of such Additional Shares of
Common
Stock so issued; provided that, for the purpose of this Subsection 4(d)(iv), all shares of
Common Stock issuable upon conversion of shares of Series Preferred Stock outstanding immediately
prior to such issue shall be deemed to be outstanding, and immediately after any Additional Shares
of Common Stock are deemed issued pursuant to Subsection 4(d)(iii) (whether or not excluded from
the definition of “Additional Shares of Common Stock” by
virtue of clauses (II), (III) and (IV) of
Subsection 4(d)(i)(D)), such Additional Shares of Common Stock shall
be deemed to be outstanding;
provided further, that in the event the Corporation, without receiving any
consideration, declares a dividend on Common Stock payable in Common Stock or effects a subdivision
of the outstanding shares of Common Stock into a greater number of shares of Common Stock, the
Conversion Price in effect immediately prior to such stock dividend or subdivision shall, on the
date that Additional Shares of Common Stock are deemed issued pursuant to Subsection 4(d)(iii)(B),
be decreased proportionately; and provided further, that the applicable Conversion
Price shall not be so reduced at such time if the amount of such reduction would be an amount less
than $.05, but any such amount shall be carried forward and reduction with respect thereto made at
the time of and together with any subsequent reduction which, together with such amount and any
other amount or amounts so carried forward, shall aggregate $.05 or more.




               (v) Datermination of Consideration. For purposes of this Subsection 4(d), the
consideration received by the Corporation for the issue of any Additional Shares of Common Stock
shall be computed as follows:



                    (A) Cash
and Property. Such consideration shall:



                         (I) insofar as it consists of cash, be
computed at the aggregate of cash received by the Corporation, excluding amounts paid or payable
for accrued interest or accrued dividends;



                         (II) insofar as it consists of property
other than cash, be computed at the fair market value thereof at the time of such issue, as
determined in good faith by the Board of Directors; and



                         (III) in the event Additional Shares of
Common Stock are issued together with other shares or securities or other assets of the Corporation
for consideration which covers both, be the proportion of such consideration so received, computed
as provided in clauses (I) and (II) above, as determined in good faith by the Board of Directors.



-12-









 





  
              
  (B) Options and Convertible Securities. The
consideration per share received by the Corporation for Additional Shares of Common Stock deemed to
have been issued pursuant to Subsection 4(d)(iii)(A), relating to Options and Convertible
Securities, shall be determined by dividing



                         (x) the total amount, if any, received
or receivable by the Corporation as consideration for the issue of such Options or Convertible
Securities, plus the minimum aggregate amount of additional consideration (as set forth in the
instruments relating thereto, without regard to any provision contained therein for a subsequent
adjustment of such consideration) payable to the Corporation upon the exercise of such Options or
the conversion or exchange of such Convertible Securities, or in the case of Options for
Convertible Securities, the exercise of such Options for Convertible Securities and the conversion
or exchange of such Convertible Securities, by



                         (y) the maximum number of shares of
Common Stock (as set forth in the instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such number) issuable upon the exercise of such
Options or the conversion or exchange of such Convertible Securities.



                    (C) Stock Dividends and Stock Subdivisions.
Any Additional Shares of Common Stock deemed to have been issued pursuant to Subsecticn
4(d)(iii)(B), relating to stock dividends and stock subdivisions, shall be deemed to have been
issued for no consideration.



               (vi) Adjustment for Combinations or Consolidation of Common Stock.



          In the event the outstanding shares of Common Stock shall be combined or consolidated, by
reclassification or otherwise, into a lesser number of shares of Common Stock, the applicable
Conversion Price in effect immediately prior to such combination or consolidation shall,
concurrently with the effectiveness of such combination or consolidation, be increased
proportionately.




          (e) No Impairment. The Corporation will not, by amendment of its Certificate of
Incorporation or through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to be observed or performed hereunder by the
Corporation, but will at all times in good faith assist in the carrying out of all the provisions
of this Section 4 and in the taking of all such action as may be necessary or appropriate in order
to protect the Conversion Rights of the holders of the Series Preferred Stock against impairment.




-13-









 





          (f) Certificate as to
Adjustments. Upon the occurrence of each adjustment or
readjustment of the Conversion Price pursuant to this Section 4, the Corporation at its
expense shall promptly compute such adjustment or readjustment in accordance with the terms hereof
and furnish to each holder of Series Preferred Stock a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or readjustment is based.
The Corporation shall, upon the written request at any time of any holder of Series Preferred
Stock, furnish or cause to be furnished to such holder a similar certificate setting forth (i) such
adjustments and readjustments, (ii) the Conversion Price then in effect, and (iii) the number of
shares of Common Stock and the amount, if any, of other property which then would be received upon
the conversion of Series Preferred Stock.




          (g) Notice of Record Date. In the event:





	 	(i)	 	that the Corporation declares a dividend (or
any other distribution) on its Common Stock payable in Common Stock or
other securities of the Corporation;
	 
	 	(ii)	 	that the Corporation subdivides or combines its
outstanding shares of Common Stock; or
	 
	 	(iii)	 	of the involuntary or voluntary dissolution,
liquidation or winding up of the Corporation;




then the Corporation shall cause to be filed at its principal office or at the office of the
transfer agent of the Series Preferred Stock, and shall cause to be mailed to the holders of the
Series Preferred Stock at their last addresses as shown on the records of the Corporation or such
transfer agent, at least ten days prior to the record date specified
in (A) below or twenty days
before the date specified in (B) below, a notice stating





	 	(A)	 	the record date of such dividend, distribution or subdivision,
or, if a record is not to be taken, the date as of which the holders of Common
Stock of record to be entitled to such dividend, distribution or subdivision
are to be determined, or
	 
	 	(B)	 	the date on which such dissolution, liquidation or winding up
is expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities or other property deliverable upon such
dissolution, liquidation or winding up.






-14-











 





     5. Mandatory Conversion.



          (a) The Corporation may, at its option, require all
(and not less than all) holders of shares of Series B stock then
outstanding to convert their shares of Series B Stock into shares
of Common Stock, at the than effective Conversion Price pursuant
to Section 4, at any time on or after the closing of the sale of
shares of Common Stock in a public offering pursuant to an effective registration statement
under the Securities Act of 1933, as amended, resulting in at least $5,000,000 of gross proceeds.




          (b) The Corporation may, at its option, require all
(and not less than all) holders of shares of Series B Stock then
outstanding to convert their shares of Series B Stock into shares
of Common Stock, at the then effective Conversion Price pursuant
to Section 4, upon the satisfaction by the Corporation of either
of the two financial tests set forth below and receipt of a
written certificate from the Corporation’s independent auditors
stating that the applicable financial test has been satisfied, the
date such test was satisfied (the “Determination Date”) and the calculation used in determining such
satisfaction. The Corporation shall have the rights
specified in this subsection 5(b) if Test No. 1 below is
satisfied at any time after the date of this
Restated Certificate of Incorporation or if Test No. 2 below is
satisfied on or before December 31, 1988. If Test No. 2 is not
satisfied on or before December 31, 1988, the Corporation shall have the rights specified herein
only if and when Test No. 1 is satisfied. The calculations of
Debt, Total Capital Employed, Excess Cash and Cash on Hand (as such terms are defined below) shall
be made with respect to the Corporation and its subsidiaries on a consolidated basis, except as
specifically noted.




     Test No. 1:



     On the Determination Date, Debt as a percentage of Total Capital Employed shall
not exceed 50%, where:



     A. “Debt” is defined as the sum of (i) indebtedness for borrowed money (including
short- and long-term portions); (ii) obligations under leases which are recorded as capital
leases (including short– and long–term portions); (iii) any additional funds provided to the
Corporation by W. R. Grace & Co. from the date on which the first shares of 12% Preferred Stock
were issued (the “Issue Date”) until the Determination Date, including funds provided under the
terms of the Capitalization Agreement, dated the Issue Date, between
W. R. Grace & Co. and
Manufacturers Hanover Trust Company, as Agent (“MHTC”), but excluding any funds paid to
Holding upon exercise of an option to purchase 3,070,430 shares of Common Stock of Holding granted
to Grace on the Issue Date; and (iv) an amount equal to the difference between (x) the
cumulative dividend on the 12% Preferred Stock from the Issue Date



-15-









 




until the Determination Date (the “Preferred Dividend”), and (y) the amount of the Preferred
Dividend actually paid in cash or in additional shares of 12% Preferred Stock by the Corporation
prior to the Determination Date.




     B. “Total
Capital Employed” is defined as the sum of (i) Debt; plus (ii) the
aggregate capital of the Corporation at the Issue Date; plus (iii) cumulative net income
(excluding net gains from the sale of assets but including losses from the sale of assets); minus
(iv) the Preferred Dividend.



     Test No. 2:



     Excess Cash on the Determination Date shall equal or exceed $100 million, where “Excess Cash”
is defined as an amount equal to (i) the cumulative net income (excluding net gains from the sale
of assets but including losses from the sale of assets) from the Issue Date until the Determination
Date; (ii) plus depreciation, amortization and deferred taxes
for such period; (iii) adjusted for
changes in working capital during such period (increases constituting a deduction from net income
and decreases constituting an addition to net income); (iv) minus capital expenditures and
capitalized acquisition costs during such period; (v) plus Cash
on Hand (as defined below) on the
Issue Date. “Cash on Hand” is defined as the difference between the total cash, deposits and
marketable securities of the Corporation (including for this purpose the $315,000,000 available to
the Corporation under the Credit Agreement, dated as of December 14, 1984, among the Corporation,
MHTC and the banks named therein (the “Credit Agreement”)) and an amount equal to the sum of the
following : (A) the net proceeds from the sale of capital assets of the Corporation between August
23, 1984 and the Issue Date; (E) the fees and expenses incurred or contracted for at or before the
Issue Date In connection with the merger of National Medical Care, Inc. (“NMC”) into NMC
Acquisition Corp., Including (by way of example but not limitation) legal, accounting, printing and
certain banking fees due at or before the Issue Date and the total contribution to be made to
Dartmouth College, but not including banking fees to be incurred under the Credit Agreement after
such time and not including fees and expenses paid by NMC prior to the Issue Date; (C) the cash
payments (whether or not payable at the Issue Date) to be made for shares of, and retirement of
options to acquire shares of, NMC; (D) the amount of indebtedness of NMC outstanding immediately
prior to the Issue Date which is repaid at or before the Issue Date;
(E) the cash, deposits and
marketable securities of Dartmouth Insurance Company LTD. on the Issue Date; and (F) $24,000,000.



          (c) The Corporation shall not have the right to require the holders of shares of Series A Stock to
convert their shares into Common Stock.




          (d) All holders of record of shares of Series B Stock will be given at least 10 days’ prior written
notice of the date




-16-









 







fixed and the place designated for mandatory conversion of all such shares of Series B Stock
pursuant to this Section 5. Such notice will be sent by first class or registered mail, postage
prepaid, to each record holder of Series B Stock at such holder’s address last shown on the records
of the transfer agent for the Series B Stock (or the records of the Corporation, if it serves as
its own transfer agent). On or before the date fixed for conversion, each holder of shares of
Series B Stock shall surrender his or its certificate or certificates for all such shares to the
Corporation at the place designated in such notice, and shall thereafter receive certificates for
the number of shares of common Stock to which such holder is entitled pursuant to this Section 5.
On the date fixed for conversion, all rights with respect to the
Series B Stock so converted,
including the rights, if any, to receive notices and vote, will terminate, except only the rights
of the holders thereof, upon surrender of their certificate or certificates therefor, to receive
certificates for the number of shares of Common Stock into which such Series B Stock has been
converted, and payment of any accrued but unpaid dividends thereon. If so required by the
Corporation, certificates surrendered for conversion shall be endorsed or accompanied by written
instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed by
the registered holder or by his or its attorney duly authorized in writing. As soon as practicable
after the date of such mandatory conversion and the surrender of the certificate or certificates
for Series B Stock, the Corporation shall cause to be issued and delivered to such holder, or on
his or its written order, a certificate or certificates for the number of full shares of Common
Stock issuable on such conversion in accordance with the provisions hereof and cash as provided in
Subsection 4(b) in respect of any fraction of a share of Common Stock otherwise issuable upon such
conversion.




          (d) All certificates evidencing shares of Series B Stock which are required to be surrendered
for conversion in accordance with the provisions hereof shall, from and after the date such
certificates are so required to be surrendered, be deemed to have been retired and cancelled and
the shares of Series B Stock represented thereby converted into Common Stock for all purposes,
notwithstanding the failure of the holder or holders thereof to surrender such certificates on or
prior to such date. The Corporation may thereafter take such appropriate action as may be necessary
to reduce the authorized Series B Stock accordingly.




     6. Optional Redemption.



          (a) The Corporation may, at the option of its Board of Directors, redeem, out of the assets
of the Corporation legally available for that purpose, on any Quarterly Dividend Date, all or any
part of the outstanding shares of the 12% Preferred Stock, upon notice duly given as hereinafter
provided, by paying for each such share, in cash, an amount equal to the Liquidation Value




-17-









 




there of (subject to appropriate adjustment for stock splits, stock dividends, combinations or
other similar recapitalizations affecting such shares) together with an amount equal to any accrued
but unpaid dividends on such shares (hereinafter referred to as the “Redemption Price”); provided,
however, that any such redemption of less than all of the shares of the 12% Preferred Stock then
outstanding, shall be of 1,700 shares of the 12% Preferred Stock or of any whole multiple of 1,700
shares.




          (b) In the event of any redemption of only a part of
the then outstanding 12% Preferred Stock, the Corporation shall
effect such redemption pro rata among the holders thereof based on
the number of shares of 12% Preferred Stock held by such holders
on the date of the Redemption Notice (as defined below).




          (c) At least 30 days prior to the date fixed for any
redemption of 12% Preferred Stock (hereinafter referred to as the
“Redemption Date”), written notice shall be mailed, by first class
or registered mail, postage prepaid, to each holder of record of
12% Preferred Stock to be redeemed, at his or its address last
shown on the records of the transfer agent of the 12% Preferred
Stock (or the records of the Corporation, if it serves as its own
transfer agent), notifying such holder of the election of the
Corporation to redeem such shares, specifying the Redemption Date
and calling upon such holder to surrender to the Corporation, in
the manner and at the place designated, his or its certificate or
certificates representing the shares to be redeemed (such notice
is hereinafter referred to as the “Redemption Notice”). On or
prior to the Redemption Date, each holder of 12% Preferred Stock
to be redeemed shall surrender his or its certificate or
certificates representing such shares to the Corporation, in the
manner and at the place designated in the Redemption Notice, and
thereupon the Redemption Price of such shares shall be payable to
the order of the person whose name appears on such certificate or
certificates as the owner thereof and each surrendered certificate
shall be cancelled. In the event less than all the shares
represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares.
From and after the Redemption Date, unless there shall have been a
default in payment of the Redemption Price, all rights of the
holders of the 12% Preferred Stock designated for redemption in
the Redemption Notice as holders of 12% Preferred Stock of the
Corporation (except the right to receive the Redemption Price
without interest upon surrender of their certificate or
certificates) shall cease with respect to such shares, and such
shares shall not thereafter be transferred on the books of the
Corporation or be deemed to be outstanding for any purpose
whatsoever.




          (d) On or prior to the Redemption Date, the Corporation
shall deposit the Redemption Price of all shares of 12% Preferred
Stock designated for redemption in the Redemption Notice and not




-18-









 




yet redeemed with a bank or trust company having aggregate capital and surplus in excess of
$25,000,000 as a trust fund for the benefit of the respective holders of the shares designated for
redemption and not yet redeemed, with irrevocable instructions and authority to the bank or trust
company to pay the Redemption Price for such shares to their respective holders on or after the
Redemption Date upon receipt of notification from the Corporation that such holder has surrendered
his or its share certificate to the Corporation. The balance of any monies deposited by the
Corporation pursuant to this Subsection 6(d) remaining unclaimed at the expiration of one year
following the Redemption Date shall thereafter be returned to the Corporation upon its request
expressed in a resolution of its Board of Directors.




          (e) Subject to the provisions hereof, the Board of Directors of the Corporation shall have
authority to prescribe the manner in which 12% Preferred Stock shall be redeemed from time to time.
Any shares of 12% Preferred Stock so redeemed shall permanently be retired, shall no longer be
deemed outstanding and shall not under any circumstances be reissued, and the Corporation may from
time to time take such appropriate action as may be necessary to reduce the authorized 12%
Preferred Stock accordingly. Nothing herein contained shall prevent or restrict the purchase by the
Corporation, from time to time either at public or private sale, of the whole or any part of the
12% Preferred Stock at such price or prices as the Corporation may determine, subject to the
provisions of applicable law.




     7. Mandatory Redemption.



          (a) Irrespective of the provisions of Section 6, the
Corporation shall redeem, out of the assets of the Corporation
legally available for that purpose, in installments on December 1
of 1992, 1993 and 1994 (each such date being referred to herein as
a “Mandatory Redemption Date”), the outstanding shares of 12%
Preferred Stock, upon notice duly given as hereinafter provided,
by paying for each such share, in cash, an amount equal to the
Liquidation Value thereof (subject to appropriate adjustment in
the event of any stock dividend, stock split, combination or other
similar recapitalization affecting such shares) together with an
amount equal to any accrued but unpaid dividends on such share
(the “Mandatory Redemption Price”). The number of shares of the
12% Preferred Stock to be redeemed in each such installment shall
be equal to one-third of the aggregate number of shares of the 12%
Preferred Stock issued prior to the first Mandatory Redemption
Date (the first two such installments to be rounded, if necessary,
upward to the next whole share and the third such installment to
be equal to the remaining balance).




          (b) If the funds of the Corporation legally available
for redemption of 12% Preferred Stock on any Mandatory Redemption
Date are insufficient to redeem the number of shares of 12%




-19-









 




Preferred Stock required under this Section 7 to be redeemed on such date, those funds which are
legally available will be used to redeem the maximum possible number of such shares of 12%
Preferred Stock ratably on the basis of the number of shares of 12% Preferred Stock which would be
redeemed on such date if the funds of the Corporation legally available therefor had been
sufficient to redeem all shares of 12% Preferred Stock required to be redeemed on such date. At any
time thereafter when additional funds of the Corporation become legally available for the
redemption of 12% preferred Stock, such funds will be used, on the next succeeding Quarterly
Dividend Date to redeem the balance of the shares which the Corporation was theretofore obligated
to redeem, ratably on the basis set forth in the preceding sentence.




          (c) The
 Corporation shall be entitled, at its option, to credit against the number of
shares of 12% Preferred Stock required to be redeemed from any holder on any Mandatory Redemption
Date any shares of 12% Preferred Stock previously redeemed from such holder pursuant to Section 6
and not previously so credited.




          (d) The Corporation shall provide notice of any redemption of 12% Preferred Stock pursuant to
this Section 7 specifying the time and place of redemption and the Mandatory Redemption
Price, by first class or registered mail, postage prepaid, to each
holder of record of 12% Preferred Stock at the address for such
holder last shown on the records of the transfer agent therefor
(or the records of the Corporation, if it serves as its own
transfer agent), not more than 60 nor less than 30 days prior to
the date on which such redemption is to be made. If less than all
12% Preferred Stock owned by such holder is then to be redeemed,
the notice will also specify the number of shares which are to be
redeemed. Upon mailing any such notice of redemption, the Corporation will become obligated to
redeem at the time of redemption
specified therein all 12% Preferred Stock specified therein. In
case less than all 12% Preferred Stock represented by any
certificate is redeemed in any redemption pursuant to this Section
7, a new certificate will be issued representing the unredeemed
12% Preferred Stock without cost to the holder thereof.




          (e) No share of 12% Preferred Stock as to which notice
of redemption has been given is entitled to any dividends declared
after its redemption on the Mandatory Redemption Date, and after
such redemption all rights of the holder of such share as a
stockholder of the Corporation by reason of the ownership of such
share will cease, except the right to receive the Mandatory
Redemption Price of such share, without interest, upon
presentation and surrender of the certificate representing such
share, and such share will not from and after redemption on such
Mandatory Redemption Date be deemed to be outstanding.




-20-









 





          (f) Any 12% Preferred Stock redeemed pursuant to this Section 7 will be cancelled and will
not under any circumstances be reissued, sold or transferred and the
Corporation may from time to
time take such appropriate action as may be necessary to reduce the authorized 12% Preferred Stock
accordingly.




                    (D) Each share of Common Stock issued and
outstanding shall have one vote. Except as otherwise provided in this
Article FOURTH or by law,
holders of Series Preferred Stock and holders of Common Stock shall vote together as a single
class. All rights accruing to the outstanding shares of capital stock of the Corporation not
expressly provided for to the contrary herein shall be vested in the Common Stock, including the
right, in the event of liquidation, dissolution or winding up of the Corporation, of the holders of
Common Stock to participate in the net assets of the Corporation remaining after the distribution
to holders of 12% Preferred Stock and Series Preferred Stock in accordance with the provisions of
Part (C) of this Article FOURTH.



          FIFTH. In furtherance and not in limitation of powers conferred by statute, it is further
provided:




               1. Election of directors need not be by written
ballot.



               2. The Board of Directors is expressly authorized
to adopt, amend or repeal the By-Laws of the Corporation.



          SIXTH. Whenever a compromise or arrangement is proposed between the Corporation and its
creditors or any class of them and/or between the Corporation and its stockholders or any class of
them, any court of equitable jurisdiction within the State of Delaware may, on the application in a
summary way of the Corporation or of any creditor or stockholder thereof, or on the application of
any receiver or receivers appointed for the Corporation under the provisions of section 291 of
Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or
receivers appointed for the Corporation under the provisions of section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of the stockholders
or class of stockholders of the Corporation, as the case may be, to be summoned in such manner as
the said court directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders of class of stockholders of the
Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization
of the Corporation as a consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the court to which said application
has been made, be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of the Corporation, as the case may be, and also on the
Corporation.




-21-









 









          SEVENTH. The Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Restated Certificate of Incorporation, in the manner now or hereafter prescribed
by statute, and all rights conferred upon stockholders herein are granted subject to this
reservation.




    
      IN WITNESS WHEREOF,
 we have hereunto subscribed our names and have affixed the seal of the
Corporation this 18thday of December, 1984.




[Seal]




	 	 	 	 	 
	 	 	 
	 	                        /s/ Constantine L. Hampers
 	 
	 	Constantine L. Hampers, M.D.  	 
	 	President 	 
	 



ATTEST:




	 	 	 
	/s/ Ellen B. Corenswet
 

Ellen B. Corenswet,

	 	 
	Assistant Secretary
	 	 






	 	 	 	 	 	 	 	 	 
	COMMONWEALTH OF MASSACHUSETTS	 	 	)	 	 	 
	COUNTY OF

	 	
	 	)
)
	 	ss. :






          BE
IT REMEMBERED, that on this
18th day
of December, 1984, personally came before me,
[ILLEGIBLE] Notary Public in and for the County and Commonwealth aforesaid ,
Constantine L. Haxpers, President of NMC Holding Corp., a Delaware corporation, the
person who executed the foregoing certificate, known to me personally to be such and
he, the said Constantine L. Hampers as such President, duly executed said
certificate before me and acknowledged that said certificate was his act and deed,
that the facts stated therein are true, that the seal affixed to said certificate is
the corporate seal of said NMC Holding Corp., and that the execution,
acknowledgment, filing and recording of said certificate have been duly authorized
by resolution of the Board of Directors of the said corporation.




          GIVEN
under my hand and seal of office, the day and year aforesaid.




	 	 	 
	 

	 	






Notary Public 
My Commission Expires:


 











 





PAGE 1









 






     I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY CERTIFY THE ATTACHED
IS A TRUE AND CORRECT COPY OF CERTIFICATE OF OWNERSHIP OF THE “NMC HOLDING CORP.” A CORPORATION
ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, MERGING “NATIONAL MEDICAL CARE,
INC.” A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, PURSUANT TO
SECTION 253 OF THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE AS RECEIVED AND FILED IN THIS
OFFICE THE THE NINETEENTH DAY OF JUNE, A.D. 1985, AT 1 O’CLOCK P.M.



     AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CORPORATION SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF DELAWARE



     AND I DO HEREBY FURTHER CERTIFY THAT THE SAID “NMC HOLDING CORP.”, HAS RELINQUISHED ITS
CORPORATE TITLE AND ASSUMED IN PLACE



	 	 	 	 	 	 	 
	 	 	/s/ Michael Harkins
	 	 
	 	 	 	 	 
	 	 	Michael Harkins, Secretary of State
	 	 
	 
	 	 	 	 	 	 
	 

	 	AUTHENTICATION:
	 	10554722 	 	 
	 
	 	 	 	 	 	 
	851700123

	 	DATE:
	 	07/03/1985	 	 






CONTINUED ON PAGE 2




 









 





PAGE 2










 




THEREOF “NATIONAL MEDICAL CARE, INC.”


|     |     |     |     |     |     |     |     |     |




	 	 	 	 	 	 	 
	 	 	/s/ Michael Harkins
	 	 
	 	 	 	 	 
	 	 	Michael Harkins, Secretary of State
	 	 
	 
	 	 	 	 	 	 
	 

	 	AUTHENTICATION:
	 	10554722 	 	 
	 
	 	 	 	 	 	 
	851700123

	 	DATE:
	 	07/03/1985	 	 






 









 










CERTIFICATE OF OWNERSHIP AND MERGER




MERGING




NATIONAL MEDICAL CARE, INC.




INTO




NMC HOLDING CORP.




**********







 














     NMC Holding Corp., a corporation organized and existing under the laws of the State of
Delaware,



     DOES HEREBY CERTIFY:



     FIRST: That this corporation was incorporated on the 6th day of August, 1984, pursuant to the
General Corporation Law of the State of Delaware.



     SECOND: That this corporation owns all of the outstanding shares of the stock of National
Medical Care, Inc., a corporation incorporated on the 25th day of July, 1969, pursuant to the
General Corporation Law of the State of Delaware;



     THIRD: That this corporation, by the following resolutions of its Board of Directors, adopted
at a meeting held on the 9th day of May, 1985, voted to merge into itself National Medical Care,
Inc.:




			
	RESOLVED:	 	That, pursuant to section 253 of the Delaware General
Corporation Law, this Corporation merge into itself National Medical Care, Inc., a
Delaware corporation, all of whose stock is owned by this Corporation and that this
Corporation succeed to all the assets of National Medical Care, Inc., and assume all
of the obligations of National Medical Care, Inc.; and






			
	FURTHER

RESOLVED:	 	
 That the proper officers of this Corporation be and they hereby are directed to
execute and acknowledge a Certificate of Ownership and Merger setting forth (1) a copy of the
resolutions authorizing the merger into this Corporation of National Medical Care, Inc. and
the assumption by this Corporation of the liabilities and obligations of National Medical
Care, Inc. and (2) a provision changing the name of this




 









 





2



			
	 	 	
Corporation to “National Medical Care, Inc.”, and the date of adoption thereof, and to
cause the same to be filed and recorded, all in accordance with sections 103 and 253
of the Delaware General Corporation Law, and to do all acts and things whatsoever,
whether within or without the State of Delaware, which may be in anywise necessary or
proper to effect said merger.





     FOURTH: Such merger shall become effective upon the date of filing of such documents with the
Secretary of the State of Delaware.



     FIFTH: The name of the surviving corporation shall be “NATIONAL MEDICAL CARE, INC.”.



     IN WITNESS WHEREOF, said NMC HOLDING CORP., has caused this certificate to be signed by
Constantine L. Hampers, M.D., its President, and attested by Timothy I. McFeeley, its Secretary,
this 14th day of June, 1985.



	 	 	 	 	 
	 	NMC HOLDING CORP.

 	 
	 	By:  	/s/ Constantine  L.  Hampers
 	 
	 	 	Constantine L. Hampers,  M.D. President 	 



ATTEST:




	 	 	 	 	 
	 	 	 
	 	By:  	/s/ Timothy I. McFeeley
 	 
	 	 	Timothy I. McFeeley  	 
	 	 	Secretary 	 
	 



RECEIVED FOR RECORD

JUN 19 1985

LEO J. DUGAN, Jr., Recorder

 









 





PAGE 1









 






     I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY CERTIFY THE
ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF NATIONAL MEDICAL CARE, INC.
FILED IN THIS OFFICE ON THE NINTH DAY OF OCTOBER, A.D. 1986, AT 10 O’CLOCK A.M.


|     |     |     |     |     |     |     |     |     |










726282062







	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	/s/ Michael Harkins
	 	 
	 	 	 	 	 
	 	 	Michael Harkins, Secretary of State
	 	 
	 
	 	 	 	 	 	 
	 

	 	AUTHENTICATION:
	 	| 0973312 	 	 
	 
	 	 	 	 	 	 
	 

	 	DATE:
	 	10/14/1986	 	 












 









 










CERTIFICATE OF AMENDMENT




OF




CERTIFICATE OF INCORPORATION

(Pursuant to Section 242)

* * * *

















     National Medical Care, Inc., a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:



     FIRST: That the Board of Directors and Stockholders of said corporation, at meetings duly
held, adopted a resolution proposing and declaring advisable the following amendment to the
Restated Certificate of Incorporation of said corporation:




			
	RESOLVED:	 	That the Restated Certificate of Incorporation of
National Medical Care, Inc. be amended by deleting Test No. 2 in subsection 5(b)
of section (C) on page 16 of the Fourth Article and substituting therefore the
following Test No. 2:


Test No. 2


Excess Cash on the Determination Date shall equal or exceed $100 million, where
“Excess Cash” is defined as an amount equal to (i) the cumulative net income
(excluding net gains from the sale of assets but including losses from the sale of
assets) from the Issue Date until the Determination Date; (ii) plus depreciation,
amortization and deferred taxes for such period; (iii) adjusted for changes in
working capital during such period (increases constituting a deduction from net
income and decreases constituting an addition to net income); (iv) minus capital
expenditures and capitalized acquisition costs during such period; (v) plus Cash on
Hand (as defined below) on the Issue Date. For purposes of calculating Excess Cash,
capitalized acquisition costs (which shall be deemed to include the costs of
start-up facilities in lieu of acquisitions) on a cumulative basis shall not
exceed: (a) $23,000,000 if the Determination Date occurs during 1986, or (b)
$31,900,000 if the Determination Date occurs during 1987 or 1988. These limits will
be prorated if the Determination Date occurs at a time other than at year end. For
purposes of calculating changes in working capital as referred to in clause (iii)
above, working capital (beginning and ending balances) shall exclude the following:
(x) all cash




 









 





-2-



			
	 	 	
(including cash, deposits and marketable securities of
domestic and foreign subsidiaries and cash, deposits and marketable
securities of Dartmouth Insurance Company, Ltd.) and (y) the
current portion of all debt and capitalized lease obligations.
Working capital as of the Determination Date shall include as a
current liability an accrual for swap C interest expense, this
accrual representing an amount equal to one-half of the maximum
accrual for swap C interest expense reported as a current liability
over the 12-month period immediately preceding the Determination
Date. “Cash on Hand” is defined as the difference between the total
cash, deposits and marketable securities of the Corporation
(including for this purpose the $315,000,000 available to the
Corporation under the Credit Agreement, dated as of December 14,
1984, among the Corporation, MHTC and the banks named therein (the
“Credit Agreement”) ) and an amount equal to the sum of the
following (A) the net proceeds from the sale of capital assets of
the Corporation between August 23, 1984 and the Issue Date; (B) the
fees and expenses incurred or contracted for at or before the Issue
Date in connection with the merger of National Medical Care, Inc.
(“NMC”) into NMC Acquisition Corp., including (by way of example
but not limitation) legal, accounting, printing and certain banking
fees due at or before the Issue Date and the total contribution to
be made to Dartmouth College, but not including banking fees to be
incurred under the Credit Agreement after such time and not including fees and expenses paid by NMC prior to the
Issue Date; (C) the cash payments (whether or not
payable at the Issue Date) to be made for shares of, and retirement of options to
acquire shares of, NMC;
(D) $20,000,000, representing the amount of indebtedness of NMC outstanding prior to the Issue Date; (E)
$3,500,000, representing the cash, deposits and marketable
securities of Dartmouth Insurance Company, Ltd., on the Issue Date;
and (F) $24,000,000.





     IN WITNESS WHEREOF, said National Medical Care, Inc., has
caused this certificate to be signed by Constantine L.
Hampers, its President and Chairman of the Board of Directors,
and attested by Timothy I. McFeeley, its Secretary, this 26th
day of September, 1986.



	 	 	 	 	 	 	 	 	 
	ATTEST:	 	 	 	NATIONAL MEDICAL CARE, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	/s/ Timothy I. McFeeley

	 	 	 	By:
	 	/s/ Constantine L. Hampers	 	 
	 

	 	 	 	 	 	 	 	 
	Timothy I. McFeeley

	 	 	 	 	 	Constantine L. Hampers, M.D.

President and Chairman of
the Board of Directors	 	 







 











 




PAGE 1







 




     I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY CERTIFY THE ATTACHED
IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF NATIONAL MEDICAL CARE, INC. FILED IN
THIS OFFICE ON THE TWENTY-SIXTH DAY OF MAY, A.D. 1987, AT 10 O’CLOCK A.M.



|     |     |     |     |     |     |     |     |     |








	 	 	 	 	 
	
727146052	 	/s/ Michael Harkins

	 	 
	 	Michael Harkins, Secretary of State

	 	 	 	 
	 	AUTHENTICATION:
	 	 | 1288202
	 
	 	DATE:
	 	 06/23/1987







 









 









CERTIFICATE OF AMENDMENT




OF




CERTIFICATE OF INCORPORATION




(Pursuant to Section 242)




* * * * * * * * * * *











 






     National Medical Care, Inc., a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:



     FIRST: That the Board of Directors and Stockholders of said corporation, at meetings duly
held, adopted a resolution proposing and declaring advisable the following amendment to the
Restated Certificate of Incorporation of said corporation:



	 	 	 
	RESOLVED:

	 	That the corporation’s Certificate of Incorporation be amended by inserting
therein a new Article EIGHTH immediately following Article SEVENTH which new Article shall
state:
	 
	 	 
	 

	 	“No director shall be personally liable to the corporation or any stockholder for
monetary damages for breach of fiduciary duty as a director, except for any matter
in respect of which such director shall be liable under Section 174 of Title 8 of
the Delaware Code (relating to the Delaware General Corporation Law) or any
amendment thereto or successor provision thereto or shall be liable by reason
that, in addition to any and all other requirements for such liability, he (i)
shall have breached his duty of loyalty to the corporation or its stockholders,
(ii) shall not have acted in good faith or, in failing to act, shall not have
acted in good faith, (iii) shall have acted in a manner involving intentional
misconduct or a knowing violation of law or, in failing to act, shall have acted
in a manner involving intentional misconduct or a knowing violation of law or (iv)
shall have derived an improper personal benefit. Neither the amendment nor repeal
of this Article Eighth, nor the adoption of any provision of the certificate of
incorporation inconsistent with this Article Eighth, shall eliminate or reduce the
effect of this Article Eighth in respect of any matter occurring, or any cause of
action, suit or claim that, but for this Article






 









 




-2-


	 	 	 
	 

	 	Eighth would accrue or arise, prior to such amendment, repeal or
adoption of an inconsistent provision.”







     IN WITNESS WHEREOF, said National Medical Care, Inc., has caused this certificate to be
signed by Constantine L. Hampers, its President and Chairman of the Board of Directors, and attested by Timothy I.
McFeeley, its Secretary, this 19th
day of May, 1987.



	 	 	 	 	 	 	 
	ATTEST:	 	NATIONAL MEDICAL CARE, INC.	 	 
	 
	 	 	 	 	 	 
	/s/ Timothy I. McFeeley

	 	By:
	 	/s/ Constantine L. Hampers	 	 
	 

Timothy I. McFeeley

	 	 	 	 

Constantine L. Hampers, M.D.
	 	 
	Secretary

	 	 	 	President and Chairman of	 	 
	 

	 	 	 	the Board of Directors	 	 





RECEIVED FOR RECORD


JUN 24 1987

William M. Honey, Recorder

 









 




PAGE 1
























 





     I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF
DELAWARE DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF OWNERSHIP OF NATIONAL MEDICAL CARE, INC., A CORPORATION ORGANIZED
AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, MERGING GLUCO—MED, INC. AND HUMAN
RESOURCE INSTITUTE, INC. AND INSTITUTE FOR HEALTH MAINTENANCE, INC. AND NATIONAL MEDICAL CARE
OF NORFOLK, INC. AND NATIONAL MEDICAL CARE OF PORTLAND, INC. CORPORATIONS ORGANIZED AND
EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, PURSUANT TO SECTION 253 OF THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE THE TWENTY-FIRST
DAY OF JUNE, A.D. 1988, AT 10:01 O’CLOCK A.M.



     AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CORPORATION SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF










881730109







	 	 	 	 	 
	 	 	/s/ Michael Harkins

	 	 	 
	 	 	Michael Harkins, Secretary of State

	 
	 	 	 	 
	 

	 	AUTHENTICATION:
	 	 | 1764464
	 
	 	 	 	 
	 

	 	DATE:
	 	 06/27/1988
	 
	 	 	 	 
	 	 	CONTINUED ON PAGE      2












 









 




PAGE 2






 




DELAWARE.




|     |     |     |     |     |     |     |     |     |











881730109







	 	 	 	 	 
	 	 	/s/ Michael Harkins

	 	 	 
	 	 	Michael Harkins, Secretary of State

	 
	 	 	 	 
	 

	 	AUTHENTICATION:
	 	 | 1764464
	 
	 	 	 	 
	 

	 	DATE:
	 	 06/27/1988












 











 





CERTIFICATE OF OWNERSHIP AND MERGER




MERGING




GLUCO-MED, INC.

INSTITUTE FOR HEALTH MAINTENANCE, INC.

HUMAN RESOURCE INSTITUTE, INC.

NATIONAL MEDICAL CARE OF NORFOLK, INC.




AND




NATIONAL MEDICAL CARE OF PORTLAND, INC.




INTO




NATIONAL MEDICAL CARE, INC.




*****




     National Medical Care, Inc., a corporation organized and existing under the laws of the State
of Delaware,



     DOES HEREBY CERTIFY:



     FIRST: That this corporation was incorporated on the 6th day of August, 1984, pursuant to the
Corporation Law of the State of Delaware.



     SECOND: That this corporation owns all of the outstanding shares of the stock of Gluco-Med,
Inc., a corporation incorporated on the 12th day of November, 1980, pursuant to the Corporation
Law of the State of Delaware;



     That this corporation owns all of the outstanding shares of the stock of Institute for
Health Maintenance, Inc., a corporation incorporated on the 3rd day of November, 1972, pursuant
to the Corporation Law of the State of Delaware;



     That this corporation owns all of the outstanding shares of the stock of Human Resource
Institute, Inc., a corporation incorporated on the 19th day of January, 1970, pursuant to the
Corporation Law of the State of Delaware;



     That this corporation owns all of the outstanding shares of the stock of National Medical
Care of Norfolk, Inc., a corporation incorporated on the 31st day of January, 1969, pursuant to
the Corporation Law of the State of Delaware;



     That this corporation owns all of the outstanding shares of the stock of National Medical
Care of Portland, Inc., a corporation incorporated on the 17th day of March, 1969, pursuant to
the Corporation Law of the State of Delaware;



     THIRD: That this corporation, by the following resolutions of its Board of Directors, by the
unanimous written consent of its members, filed with the minutes of the board, at a meeting
held on the 14th day of June, 1988, determined to and did merge into itself said:



 









 





-2- 




GLUCO-MED, INC.

INSTITUTE FOR HEALTH MAINTENANCE, INC.

HUMAN RESOURCE INSTITUTE, INC.

NATIONAL MEDICAL CARE OF NORFOLK, INC.




AND




NATIONAL MEDICAL CARE OF PORTLAND, INC.




     RESOLVED, that National Medical Care, Inc. merge, and it hereby does merge into itself said:



GLUCO-MED, INC.

INSTITUTE FOR HEALTH MAINTENANCE, INC.

HUMAN RESOURCE INSTITUTE, INC.

NATIONAL MEDICAL CARE OF NORFOLK, INC.




AND




NATIONAL MEDICAL CARE OF PORTLAND, INC.



assuming all of their obligations; and




     FURTHER RESOLVED, that the merger is to be effective upon the date of filing with the
Secretary of the State of Delaware.



     FURTHER RESOLVED, that the proper officers of this corporation be and they hereby are
directed to make and execute a Certificate of Ownership and Merger setting forth a copy of the
resolutions to merge said:



GLUCO-MED, INC.

INSTITUTE FOR HEALTH MAINTENANCE, INC.

HUMAN RESOURCE INSTITUTE, INC.

NATIONAL MEDICAL CARE OF NORFOLK, INC.




AND




NATIONAL MEDICAL CARE OF PORTLAND, INC.



assuming their liabilities and obligations, and the date of adoption thereof, and to cause the
same to be filed with the Secretary of State and a certified copy recorded in the office of the
Recorder of Deeds of New Castle county and to do all acts and things whatsoever, whether within or
without the State of Delaware, which may be in anywise necessary or proper to effect said merger.




     IN WITNESS WHEREOF, said National Medical Care, Inc., has caused this certificate to be
signed by Constantine L. Hampers, M.D., President, and attested by Timothy I. McFeeley, its Secretary, this 14th day
of June, 1988.



 









 





-3- 




	 	 	 	 	 	 	 	 	 	 	 
	Attest:	 	 	 	NATIONAL MEDICAL CARE, INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Timothy I. McFeeley
 

	 	 
	 	By:
	 	/s/ Constantine L. Hampers
 

	 	 
	 

	 	Timothy I. McFeeley 


Secretary
	 	 	 	 	 	Constantine L. Hampers, M.D. 

President	 	 






 









 






PAGE 1








  




     I, MICHAEL RATCHFORD, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE
ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF CHANGE OF REGISTERED AGENT/OFFICE OF
“NATIONAL MEDICAL CARE, INC.” FILED IN THIS OFFICE ON THE ELEVENTH DAY OF MARCH, A.D. 1992, AT 9
O’CLOCK A.M.



*     *     *     *     *     *     *     *     *     *







	 	 	 	 	 	 	 
	

	 	 	 	/s/ Michael Ratchford
 

Michael Ratchford, Secretary of State
	 	 






AUTHENTICATION: *3595347





DATE:









 









 











CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE

AND OF REGISTERED AGENT



It is hereby certified that:



1. The name of the corporation (hereinafter called the “corporation”) is




NATIONAL MEDICAL CARE, INC.



2. The registered office of the corporation within the State of Delaware is hereby changed to
32 Loockerman Square, Suite L-100, City of Dover 19901, County
of Kent.



3. The registered agent of the corporation within the State of Delaware is hereby changed to
The Prentice-Hall Corporation System, Inc., the business office of which is identical with the
registered office of the corporation as hereby changed.



4. The corporation has authorized the changes hereinbefore set forth by resolution of its
Board of Directors.



Signed on
Feb. 21, 1992




	 	 	 	 	 	 	 
	 

	 	 	 	/s/ Jo Ellen Ojeda
 

Jo Ellen Ojeda, Vice-President	 	 






Attest:




	 	 	 
	/s/ John Whiting
 

John Whiting, Secretary

	 	 








	 	 	 
	STATE OF DELAWARE

	 	DE dcertificate of change 4/91
	SECRETARY OF STATE
	 	 
	DIVISION OF CORPORATIONS
	 	 
	FILED 09:00 AM 03/11/1992
	 	 
	920715122 — 2041428
	 	 






 









 





Page 1




State of Delaware




Office of the Secretary of State





 



     I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY
THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF CORRECTION OF “NATIONAL
MEDICAL CARE, INC.”, FILED IN THIS OFFICE ON THE ELEVENTH DAY OF JANUARY, A.D. 1993, AT
12:15 O’CLOCK P.M.






	 	 	 	 	 	 	 
	 

	 	 	 	/s/ Edward J. Freel
 

Edward J. Freel, Secretary of State
	 	 






	 		
	2041428      8100
	 	AUTHENTICATION:     
7621611
	950191973
	 	DATE:       08-28-95






 









 






	 	 	 
	 

	 	STATE OF DELAWARE
	 

	 	SECRETARY OF STATE
	 

	 	DIVISION OF CORPORATIONS
	 

	 	FILED 12:15 PM 01/11/1993
	 

	 	930115319 — 2041428






STATE OF DELAWARE

SECRETARY OF STATE

DIVISION OF CORPORATIONS




CERTIFICATE OF CORRECTION FILED TO CORRECT

A CERTAIN ERROR IN THE CERTIFICATE OF CHANCE OF LOCATION OF

REGISTERED OFFICE AND OF REGISTERED AGENT

OF NATIONAL MEDICAL CARE, INC.

FILED IN THE OFFICE OF THE SECRETARY OF STATE

OF DELAWARE ON MARCH 11, 1992




     National
Medical Care, Inc., a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware,



     DOES
HEREBY CERTIFY:


1.) The name of the corporation is National Medical Care, Inc.



2.) That a Certificate of Change of Location of Registered Office and of Registered Agent was
filed by the Secretary of State of Delaware on March 11, 1992, which requires correction as
permitted by subsection
(F) of § 103 of
the General Corporation Law of the State of Delaware.



3.) The
inaccuracy or defect in said certificate to be corrected is the typewritten name of
John Whiting as the Secretary of National Medical Care, Inc., located below the signature
which attests to the document. The said signature being that of Robert B. Lamm, Secretary of
National Medical Care, Inc.



4.) The
certificate should be amended in accordance with Exhibit A annexed hereto which
substitutes the typewritten name of Robert B. Lamm for the typewritten name of John Whiting
and should read as follows:




“Attest:




	 	 	 
	 

     Robert B. Lamm, secretary”

	 	 






 









 






-2- 




     IN WITNESS WHEREOF, said National Medical Care, Inc. has caused this certificate to be
signed by Jo Ellen Ojeda, its Vice President and attested to by Dennis J. LaCroix, its Assistant
Secretary, this 6th day of January, 1993.



	 	 	 	 	 	 	 
	 

	 	 	 	NATIONAL MEDICAL CARE, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	/s/ Jo Ellen Ojeda
 

Jo Ellen Ojeda
	 	 
	 

	 	 	 	Vice President	 	 






ATTEST:




	 	 	 	 	 
	By:

	 	/s/ Dennis J. LaCroix
 

Dennis J. LaCroix, Assistant Secretary
	 	 







 











 




EXHIBIT “A”


CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE
AND OF REGISTERED AGENT


It is hereby certified that:


1. The name of the corporation (hereinafter called the “corporation”) is


NATIONAL MEDICAL CARE, INC.


2. The registered office of the corporation within the State of Delaware is hereby changed to 32
Loockerman Square, Suite L-100, City of Dover 19901, County of Kent.


3. The registered agent of the corporation within the State of Delaware is hereby changed to The
Prentice-Hall Corporation System, Inc., the business office of which is identical with the
registered office of the corporation as hereby changed.


4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors.


Signed on Feb 21, 1992



	 	 	 	 	 
	 
	 	/s/ Jo Ellen Ojeda,	 	 
	 
	 	 

Jo Ellen Ojeda, Vice - President
	 	 




Attest:



	 	 	 
	/s/ Robert B. Lamm
	 	 
	 
Robert B. Lamm, Secretary
	 	 




DE dcertificate of change 4/91


 







 




PAGE 1


State of Delaware


Office of the Secretary of State


 




     I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE
ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF CHANGE OF REGISTERED AGENT OF “NATIONAL
MEDICAL CARE, INC.”, FILED IN THIS OFFICE ON THE TWENTY-NINTH DAY OF OCTOBER, A.D. 1993, AT 10 O’CLOCK A.M.








	
	 	 	 	 
	 	/s/ Edward J. Freel	 	 
	 	 

Edward J. Freel, Secretary of State	 	 





	 	 	 	 	 	 	 
	2041428     8100
	 	AUTHENTICATION:	 	 	8380821	 
	 
	 	 	 	 	 	 
	971090064
	 	DATE:	 	 	03-19-97	 




 








 




CERTIFICATE OF CHANGE OF REGISTERED AGENT


AND


REGISTERED OFFICE


* * * * *


     National Medical Care, Inc., a corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:


     The present registered agent of the corporation is The Prentice-Hall Corporation System, Inc.
and the present registered office of the corporation is in the county of Kent.

     The Board of
Directors of National Medical Care, Inc. adopted the following resolution on the 27th day of
August, 1993.


     Resolved, that the registered office of Home Intensive Care, Inc., in the state of
Delaware be and it hereby is changed to Corporation Trust Center, 1209 Orange Street in the
City of Wilmington, County of New Castle, and the authorization of the present registered
agent of this corporation be and the same is hereby withdrawn, and THE CORPORATION TRUST
COMPANY, shall be and is hereby constituted and appointed the registered agent of this
corporation at the address of its registered office.


     IN WITNESS WHEREOF, National Medical Care, Inc. has caused this statement to be signed by
Charles W. Meyer, its Vice President and attested by Salvina Amenta-Gray, its Assistant
Secretary this 28th day of October, 1993.


	 	 	 	 	 	 	 
	 
	 	By	 	/s/ Charles W. Meyer	 	 
	 
	 	 	 	 

Vice President	 	 





ATTEST:



	 	 	 	 	 
	By:
	 	/s/ Salvina Amenta-Gray	 	 
	 
	 	 
Assistant secretary	 	 




 







 




PAGE 1


State of Delaware


Office of the Secretary of State


 




     I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE
ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF OWNERSHIP, WHICH MERGES:


     “RENAL CARE CENTERS CORPORATION”, A PENNSYLVANIA CORPORATION,


     WITH AND INTO “NATIONAL MEDICAL CARE, INC.” UNDER THE NAME OF “NATIONAL MEDICAL CARE, INC.”, A
CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED
IN THIS OFFICE THE TWENTY-NINTH DAY OF SEPTEMBER, A.D. 1995, AT 9:30 O’CLOCK A.M.


     A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF
DEEDS FOR RECORDING.


		 	 	 	 
	 	/s/ Edward J. Freel	 	 
	 	 
Edward J. Freel, Secretary of State
	 	 






	 	 	 	 	 
	2041428     8100M
	 	AUTHENTICATION:	 	7659752
	 
	 	 	 	 
	 

	 	DATE:
	 	09-29-95
	950223876
	 	 	 	 






 









 




CERTIFICATE OF OWNERSHIP AND
MERGING
RENAL CARE CENTERS CORPORATION
INTO
NATIONAL MEDICAL CARE, INC.


     National Medical Care, Inc., a corporation organized and existing under the laws of Delaware,


DOES HEREBY CERTIFY:


     FIRST: That this corporation was incorporated on the 6th day of August, 1984, pursuant to the
General Corporation Law of the State of Delaware.


     SECOND: That this corporation owns all of the outstanding shares of the stock of Renal Care Centers
Corporation, a corporation incorporated on the 25th day of January, 1983, pursuant to the Business
Corporation Law of the State of Pennsylvania.


     THIRD: That this corporation, by the following resolutions of its Board of Directors, duly adopted
by unanimous written consent of directors, filed with the minutes of the Board, on the
27th
day of September, 1995, determined to and did merge into itself said Renal Care Centers
Corporation:


RESOLVED, that National Medical Care, Inc. merge, and it hereby does merge into itself said
Renal Care Centers Corporation and assumes all of its liabilities and obligations; and


     FURTHER RESOLVED, that the merger shall be effective on September 30, 1995; and


FURTHER RESOLVED, that the proper officer of this corporation be and he or she is hereby directed
to make and execute a Certificate of Ownership and Merger setting forth a copy of the resolutions
to merge said Renal Care Centers Corporation and assume its liabilities and obligations, and the
date of adoption thereof, and to cause the same to be filed with the Secretary of State of Delaware
and to do all acts and things whatsoever, whether within or without the State of Delaware, which
may be necessary or proper to effect said merger.


 







 




     IN WITNESS WHEREOF, said National Medical Care, Inc. has caused this Certificate to be signed by
Norman C. Alt, its Vice President, this 27th day of September, 1995.


	 	 	 	 	 
	 

	 	/s/ Norman C. Alt	 	 
	 

	 	 
Norman C. Alt, Vice President
	 	 






 









 




PAGE 1


State of Delaware


Office of the Secretary of State


 




     I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE
ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF “NATIONAL MEDICAL CARE,
INC.”, FILED IN THIS OFFICE ON THE TWENTY-FIRST DAY OF FEBRUARY, A.D. 1997, AT 11:30 O’CLOCK A.M.


     A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF
DEEDS FOR RECORDING.


		 	 	 	 
	 	/s/ Edward J. Freel	 	 
	 	 

Edward J. Freel, Secretary of State	 	 





	 	 	 	 	 
	2041428      8100
	 	AUTHENTICATION:	 	8342909
	 
	 	 	 	 
	 
	 	DATE:	 	02-24-97
	971057913
	 	 	 	 





 








 




CERTIFICATE OF AMENDMENT


OF


RESTATED CERTIFICATE OF INCORPORATION


OF


NATIONAL MEDICAL CARE, INC.


(Pursuant to Section 242 of the General Corporation Law of the State of Delaware)


********************


     National Medical Care, Inc., a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:


	 	 	 
	FIRST:
	 	That the Board of Directors of the Corporation, acting pursuant to Sections 141(f) and
242 of the General Corporation Law of the State of Delaware by written consent
in lieu of a meeting, declared it advisable to amend the Restated Certificate
of Incorporation of the Corporation as described hereinafter and, to effect
such amendments, the sole stockholder of the Corporation, by written consent
pursuant to Section 228(a) of the General Corporation Law of the State of
Delaware, approved and adopted the following resolutions:





     RESOLVED, that the Corporation effect a reverse stock split such that the 10,268,701 shares
of common stock of the Corporation, $.01 par value per share, issued and outstanding
immediately prior to the time this amendment becomes effective shall be and are automatically
combined and changed (without any further act) into 100 fully-paid and non-assessable shares
of the common stock of the Corporation, $.01 par value per share.


     RESOLVED, that immediately after the effective date of the amendment combining and
changing the shares of the common stock of the Corporation, the sole stockholder of the
Corporation shall surrender to the Corporation its certificate(s) representing shares of
common stock for cancellation and re-issuance in accordance with the provisions of such
amendment.


     RESOLVED, that the Corporation amend its Restated Certificate of Incorporation by
deleting Article Fourth thereof in its entirety and inserting in place thereof the
following:


     “FOURTH. The Corporation is authorized to issue 3,000 shares of Common Stock, $.01
par value per share.”


	 	 	 
	SECOND:
	 	That the foregoing amendments were duly adopted in accordance with the
applicable provisions of the General Corporation Law of the State of Delaware.





 








 







     IN WITNESS WHEREOF, said National Medical Care, Inc. has caused this certificate to be signed
by Ben J. Lipps, Ph.D., its President, this 11th day of February, 1997.


	 	 	 	 	 
	 	NATIONAL MEDICAL CARE, INC.

 	 
	 	/s/ Ben J. Lipps
 	 
	 	Ben J. Lipps, Ph.D.   	 
	 	President 	 
	 




2











 






Change
of Name Only [—]
June 19,1985 
Pursuant to Merger

By-laws remained the same since 6/19/85




BY-LAWS




OF




NATIONAL MEDICAL CARE, INC.




(Formerly NMC HOLDING CORP. )




 









 





BY-LAWS




TABLE OF CONTENTS




	 	 	 
	 	 	Page
	ARTICLE 1 — Stockholders
	 	1
	 
	 	 
	Section 1.1 Place of Meetings
	 	1
	Section 1.2 Annual Meeting
	 	1
	Section 1.3 Special Meetings
	 	1
	Section 1.4 Notice of Meetings
	 	2
	Section 1.5 Voting List
	 	2
	Section 1.6 Quorum
	 	2
	Section 1.7 Adjournments
	 	2
	Section 1.8 Voting and Proxies
	 	3
	Section 1.9 Action at Meeting
	 	3
	Section 1.10
Action without Meeting
	 	3
	 
	 	 
	ARTICLE 2 — Directors
	 	3
	 
	Section 2.1 General Powers
	 	3
	Section 2.2 Number; Election and Qualification
	 	4
	Section 2.3 Tenure
	 	4
	Section 2.4 Vacancies
	 	4
	Section 2.5 Resignation
	 	4
	Section 2.6 Regular Meetings
	 	4
	Section 2.7 Special Meetings
	 	5
	Section 2.8 Notice of Special Meetings
	 	5
	Section 2.9 Meetings by Telephone Conference Calls
	 	5
	Section 2.10 Quorum
	 	5
	Section 2.11 Action at Meeting
	 	5
	Section 2.12 Action by Consent
	 	5
	Section 2.13 Removal
	 	6
	Section 2.14 Committees
	 	6
	Section 2.15 Compensation of Directors
	 	6
	 
	 	 
	ARTICLE 3 — Officers
	 	7
	 
	Section 3.1 Enumeration
	 	7
	Section 3.2 Election
	 	7
	Section 3.3 Qualification
	 	7






-i-









 





	 	 	 
	 	 	Page
	Section 3.4 Tenure
	 	  7
	Section 3.5 Resignation and Removal
	 	  7
	Section 3.6 Vacancies
	 	  8
	Section 3.7 Chairman of the Board and Vice-Chairman of the Board
	 	  8
	Section 3.8 President
	 	  8
	Section 3.9 Vice Presidents
	 	  8
	Section 3.10 Secretary and Assistant Secretaries
	 	  8
	Section 3.11 Treasurer and Assistant Treasurers

	 	  9
	Section 3.12 Salaries
	 	  9
	 
	 	 
	ARTICLE 4 — Capital Stock
	 	10
	 
	Section 4.1 Issuance of Stock
	 	10
	Section 4.2 Certificates of Stock
	 	10
	Section 4.3
Transfers
	 	10
	Section 4.4 Lost, Stolen or Destroyed Certificates
	 	11
	Section 4.5 Record Date
	 	11
	 
	 	 
	ARTICLE 5 — Indemnification
	 	12
	 
	 	 
	ARTICLE 6 — General Provisions
	 	13
	 
	Section 6.1 Fiscal Year
	 	13
	Section 6.2 Corporate Seal
	 	13
	Section 6.3 Waiver of Notice
	 	13
	Section 6.4 Voting of Securities
	 	13
	Section 6.5 Evidence of Authority
	 	13
	Section 6.6 Certificate of Incorporation
	 	13
	Section 6.7 Transactions with Interested Parties
	 	13
	Section 6.8 Severability
	 	14
	Section 6.9 Pronouns
	 	14
	 
	 	 
	ARTICLE 7 — Amendments
	 	15
	 
	Section 7.1 By the Board of Directors
	 	15
	Section 7.2 By the Stockholders
	 	15






-ii-









 





	 	 	 
	 	 	Page
	ARTICLE 8
— Right of First Refusal
	 	15
	 
	 	 
	Section 8.1 Restrictions on Transfer
	 	15
	Section 8.2 First Refusal Notice
	 	15
	Section 8.3 Corporation’s Right to Purchase
	 	16
	Section 8.4 Shareholder’s Right to Purchase
	 	16
	Section 8.5 Settlement
	 	17
	Section 8.6 Sale by Selling Stockholder
	 	17
	Section 8.7 Exceptions
	 	17
	Section 8.8 Waiver
	 	18
	Section 8.9 Legend
	 	18
	Section 8.10 Termination of Right of First Refusal
	 	18






-iii-









 






BY-LAWS




OF

NATIONAL MEDICAL CARE, INC.

(Formerly NMC HOLDING CORP.)




ARTICLE 1 — Stockholders




          1.1 Place of Meetings. All meetings of stockholders shall be held at such place
within or without the State of Delaware as may be designated from time to time by the Board of
Directors or the President or, if not so designated, at the registered office of the corporation.




          1.2 Annual Meeting. The annual meeting of stockholders for the election of
directors and for the transaction of such other business as may properly be brought before the
meeting shall be held on the third Tuesday in May in each year, at a time fixed by the Board of
Directors or the President. If this date shall fall upon a legal holiday at the place of the
meeting, then such meeting shall be held on the next succeeding business day at the same hour.
If no annual meeting is held in accordance with the foregoing provisions, the Board of Directors
shall cause the meeting to be held as soon thereafter as convenient. If no annual meeting is
held in accordance with the foregoing provisions, a special meeting may be held in lieu of the
annual meeting, and any action taken at that special meeting shall have the same effect as if it
had been taken at the annual meeting, and in such case all references in these By-Laws to the
annual meeting of the stockholders shall be deemed to refer to such special meeting.




          1.3 Special Meetings. Special meetings of stockholders may be called at any time by
the Chairman of the Board, President or by the Board of Directors and shall be called by the
Chairman, the President or the Secretary at the written request of stockholders holding shares
entitled to cast not less than twenty-five per cent of the votes at the meeting. Business
transacted at any special meeting of stockholders shall be limited to matters relating to the
purpose or purposes stated in the notice of meeting.




-1-









 








          1.4 Notice of Meetings. Except as otherwise provided by law, written notice of each
meeting of stockholders, whether annual or special, shall be given not less than 10 nor more than
60 days before the date of the meeting to each stockholder entitled to vote at such meeting. The
notices of all meetings shall state the place, date and hour of the meeting. The notice of a
special meeting shall state, in addition, the purpose or purposes for which the meeting is called.
If mailed, notice is given when deposited in the United States mail, postage prepaid, directed to
the stockholder at his address as it appears on the records of the corporation.




          1.5 Voting List. The officer who has charge of the stock ledger of the corporation
shall prepare, at least 10 days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least
10 days prior to the meeting, at a place within the city where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time of the meeting, and may be inspected by
any stockholder who is present.




          1.6 Quorum. Except as otherwise provided by law, the Certificate of Incorporation or
these By-Laws, the holders of such number of shares of stock issued and outstanding and entitled to
vote at the meeting as shall constitute fifty-five per cent (55%) of the votes entitled to be cast
thereat, present in person or represented by proxy, shall constitute a quorum for the transaction
of business.




          1.7 Adjournments. Any meeting of stockholders may be adjourned to any other time and
to any other place at which a meeting of stockholders may be held under these By-Laws by the
stockholders present or represented at the meeting and entitled to vote, although less than a
quorum, or, if no stockholder is present, by any officer entitled to preside at or to act as
Secretary of such meeting. It shall not be necessary to notify any stockholder of any adjournment
of less than 30 days if the time and place of the adjourned meeting are announced at the meeting at
which adjournment is taken, unless after the adjournment a new record date is fixed for the
adjourned meeting. At the adjourned meeting, the corporation may transact any business which might
have been transacted at the original meeting.






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          1.8 Voting and Proxies. Each stockholder shall have one vote for each share of stock
entitled to vote held of record by such stockholder and a proportionate vote for each fractional
share so held, unless otherwise provided in the Certificate of Incorporation. Each stockholder of
record entitled to vote at a meeting of stockholders, or to express consent or dissent to corporate
action in writing without a meeting, may vote or express such consent or dissent in person or may
authorize another person or persons to vote or act for him by written proxy executed by the
stockholder or his authorized agent and delivered to the Secretary of the corporation. No such
proxy shall be voted or acted upon after three years from the date of its execution, unless the
proxy expressly provides for a longer period.




          1.9 Action at Meeting. When a quorum is present at any meeting, the holders of
fifty-five percent (55%) of the shares of stock issued and outstanding and entitled to vote at the
meeting shall decide any matter to be voted upon by the stockholders at such meeting, except when a
different vote is required by express provision of law, the Certificate of Incorporation or these
By-Laws.




          1.10 Action without Meeting. Any action required or permitted to be taken at any
annual or special meeting of stockholders of the corporation may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth the action so
taken, is signed by the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at which all shares
entitled to vote on such action were present and voted. Prompt notice of the taking of corporate
action without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.




ARTICLE 2 — Directors




          2.1 General Powers. The business and affairs of the corporation shall be managed by
or under the direction of a Board of Directors, who may exercise all of the powers of the
corporation except as otherwise provided by law, the Certificate of Incorporation or these By-Laws.
In the event of a vacancy in the Board of Directors, the remaining directors, except as


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otherwise provided by law and subject to Section 2.10, may exercise the powers of the
full Board until the vacancy is filled.




          2.2 Number; Election and Qualification. The number of directors which shall constitute
the whole Board of Directors shall be eight or such other number as shall be fixed from time to
time by the Board of Directors. The number of directors may be decreased at any time and from time
to time by a majority of the total number of authorized directors to eliminate vacancies existing
by reason of the death, resignation, removal or expiration of the term of one or more directors.
The directors shall be elected at the annual meeting of stockholders by such stockholders as have
the right to vote on such election. Directors need not be stockholders of the corporation.




          2.3 Tenure. Each director shall hold office until the next annual meeting and until
his successor is elected and qualified, or until his earlier death, resignation or removal.




          2.4 Vacancies. Any vacancy in the Board of Directors, however occurring, including a
vacancy resulting from an enlargement of the Board, may be filled only by vote of the stockholders.
A director elected to fill a vacancy shall be elected for the unexpired term of his predecessor in
office, and a director chosen to fill a position resulting from an increase in the number of
directors shall hold office until the next annual meeting of stockholders and until his successor
is elected and qualified, or until his earlier death, resignation or removal.




          2.5 Resignation. Any director may resign by delivering his written resignation to the
corporation at its principal office or to the President or Secretary. Such resignation shall be
effective upon receipt unless it is specified to be effective at some other time or upon the
happening of some other event.




          2.6 Regular Meetings. Regular meetings of the Board of Directors may be held without
notice at such time and place, either within or without the State of Delaware, as shall be
determined from time to time by the Board of Directors; provided that any director who is absent
when such a determination is made shall be given notice of the determination. A regular meeting of
the Board of Directors may be held without notice immediately after and at the same place as the
annual meeting of stockholders.





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          2.7 Special Meetings. Special meetings of the Board of Directors may be held at any
time and place, within or without the State of Delaware, designated in a call by the Chairman of
the Board, President, two or more directors, or by one director in the event that there is only a
single director in office.




          2.8 Notice of Special Meetings. Notice of any special meeting of directors shall be
given to each director by the Secretary or by the officer or one of the directors calling the
meeting. Notice shall be duly given to each director (i) by giving notice to such director in
person or by telephone at least 48 hours in advance of the meeting, (ii) by sending a telegram or
telex, or delivering written notice by hand, to his last known business or home address at least 48
hours in advance of the meeting, or (iii) by mailing written notice to his last known business or
home address at least 72 hours in advance of the meeting. A notice or waiver of notice of a meeting
of the Board of Directors need not specify the purposes of the meeting.




          2.9 Meetings by Telephone Conference Calls. Directors or any members of any committee
designated by the directors may participate in a meeting of the Board of Directors or such
committee by means of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and participation by such means shall
constitute presence in person at such meeting.




          2.10 Quorum. A majority of the total number of directors shall constitute a quorum at
all meetings of the Board of Directors. The total number of directors shall mean the number of
directors the corporation would have if there were no vacancies. In the absence of a quorum at any
such meeting, a majority of the directors present may adjourn the meeting from time to time without
further notice other than announcement at the meeting, until a quorum shall be present.




          2.11 Action at Meeting. At any meeting of the Board of Directors at which a quorum is
present, the vote of a majority of the total number of directors shall be sufficient to take any
action, unless a different vote is specified by law, the Certificate of Incorporation or these
By-Laws.




          2.12 Action by Consent. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee of the Board of
Directors may be taken without a meeting, if all members of the Board (provided that a majority of



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the total number of directors shall then be in office) or committee, as the case may be, consent to
the action in writing, and the written consents are filed with the minutes of proceedings of the
Board or committee.




          2.13 Removal. Any one or more or all of the directors may be removed, with or without
cause, by such stockholders as have the right to vote for the election of directors, except that
the directors elected by the holders of a particular class or series of stock may be removed only
by vote of the holders of the outstanding shares of such class or series required to elect such
directors.




          2.14 Committees. The Board of Directors may, by resolution passed by a majority of
the total number of directors, designate one or more committees, each committee to consist of one
or more of the directors of the corporation. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified member at any
meeting of the committee. The number of members which shall constitute a quorum for the
transaction of business by the committee and the vote which shall constitute the act of the
committee shall be provided in the resolution establishing such committee. Any such committee, to
the extent provided in the resolution of the Board of Directors and subject to the provisions
of the General Corporation Law of the State of Delaware, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and affairs of the
corporation and may authorize the seal of the corporation to be affixed to all papers which may
require it. Each such committee shall keep minutes and make such reports as the Board of Directors
may from time to time request. Except as the Board of Directors may otherwise determine, any
committee may make rules for the conduct of its business, but unless otherwise provided by the
directors or in such rules, its business shall be conducted as nearly as possible in the same
manner as is provided in these By-Laws for the Board of Directors.




          2.15 Compensation of Directors. Directors may be paid such compensation for their
services and such reimbursement for expenses of attendance at meetings as the Board of Directors
may from time to time determine. No such payment shall preclude any director from serving the
corporation or any of its parent or subsidiary corporations in any other capacity and receiving
compensation for such service.





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ARTICLE 3 — Officers




          3.1 Enumeration. The officers of the corporation shall consist of a President, a
Secretary, a Treasurer and such other officers with such other titles as the Board of Directors
shall determine, including a Chairman of the Board, a Vice-Chairman of the Board, and one or more
Vice Presidents, Assistant Treasurers, and Assistant Secretaries. The Board of Directors may
appoint such other officers as it may deem appropriate.




          3.2 Election. The President, Treasurer and Secretary shall be elected annually by the
Board of Directors at its first meeting following the annual meeting
of stockholders. Other
officers may be appointed by the Board of Directors at such meeting or at any other meeting.




          3.3 Qualification. No officer need be a stockholder. Any two or more offices may be
held by the same person.




          3.4 Tenure. Except as otherwise provided by law, by the Certificate of Incorporation
or by these By-Laws, each officer shall hold office until his successor is elected and qualified,
unless a different term is specified in the vote choosing or appointing him, or until his earlier
death, resignation or removal.




          3.5 Resignation and Removal. Any officer may resign by delivering his written
resignation to the corporation at its principal office or to the President or Secretary. Such
resignation shall be effective upon receipt unless it is specified to be effective at some other
time or upon the happening of some other event.




          Any officer may be removed at any time, with or without cause, by vote of a majority of the
total number of directors.




          Except as the Board of Directors may otherwise determine, no officer who resigns or is removed
shall have any right to any compensation as an officer for any period following his resignation or
removal, or any right to damages on account of such removal, whether his compensation be by the
month or by the year or otherwise, unless such compensation is expressly provided in a duly
authorized written agreement with the corporation.




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          3.6 Vacancies. The Board of Directors may fill any vacancy occurring in any office
for any reason and may, in its discretion, leave unfilled for such period as it may determine any
offices other than those of President, Treasurer and Secretary. Each such successor shall hold
office for the unexpired term of his predecessor and until his successor is elected and qualified,
or until his earlier death, resignation or removal.




          3.7 Chairman of the Board and Vice-Chairman of the Board. The Board of Directors shall
appoint a Chairman of the Board who shall serve as Chief Executive Officer, shall preside at all
meetings of Stockholders and directors and shall perform such duties and possess such powers as are
assigned to him by the Board of Directors.




          3.8 President. The President shall, subject to the direction of the Board of
Directors, have general charge and supervision of the business of the corporation. The President
shall perform such duties and shall have such other powers as the Board of Directors may from time
to time prescribe.




          3.9 Vice Presidents. Any Vice President shall perform such duties and possess such
powers as the Board of Directors or the President may from time to time prescribe. In the event of
the absence, inability or refusal to act of the President, the Vice President (or if there shall be
more than one, the Vice Presidents in the order determined by the Board of Directors) shall perform
the duties of the President and when so performing shall have all the powers of and be subject to
all the restrictions upon the President. The Board of Directors may assign to any Vice President
the title of Executive Vice President, Senior Vice President or any other title selected by the
Board of Directors.




          3.10
Secretary and Assistant Secretaries. The
Secretary shall perform such duties and shall have such powers as the Board of Directors or the
President may from time to time prescribe. In addition, the Secretary shall perform such duties
and have such powers as are incident to the office of the secretary, including without limitation
the duty and power to give notices of all meetings of stockholders and special meetings of the
Board of Directors, to attend all meetings of stockholders and the Board of Directors and keep a
record of the proceedings, to maintain a stock ledger and prepare lists of stockholders and their
addresses as required, to be custodian of corporate records and the corporate seal and to affix and
attest to the same on documents.




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          Any Assistant Secretary shall perform such duties and possess such powers as the Board of
Directors, the President or the Secretary may from time to time prescribe. In the event of the
absence, inability or refusal to act of the Secretary, the Assistant Secretary, (or if there shall
be more than one, the Assistant Secretaries in the order determined by the Board of Directors)
shall perform the duties and exercise the powers of the Secretary.




          In the absence of the Secretary or any Assistant Secretary at any meeting of stockholders or
directors, the person presiding at the meeting shall designate a temporary secretary to keep a
record of the meeting.




          3.11 Treasurer and Assistant Treasurers. The Treasurer shall perform such duties and
shall have such powers as may from time to time be assigned to him by the Board of Directors or
the President. In addition, the Treasurer shall perform such duties and have such powers as are
incident to the office of treasurer, including without limitation the duty and power to keep and be
responsible for all funds and securities of the corporation, to deposit funds of the corporation in
depositories selected in accordance with these By-Laws, to disburse such funds as ordered by the
Board of Directors, to make proper accounts of such funds, and to render as required by the Board
of Directors statements of all such transactions and of the financial condition of the corporation.




          The Assistant Treasurers shall perform such duties and possess such powers as the Board of
Directors, the President or the Treasurer may from time to time prescribe. In the event of the
absence, inability or refusal to act of the Treasurer, the Assistant Treasurer, (or if there shall
be more than one, the Assistant Treasurers in the order determined by the Board of Directors) shall
perform the duties and exercise the powers of the Treasurer.




          3.12 Salaries. Officers of the corporation shall be entitled to such salaries,
compensation or reimbursement as shall be fixed or allowed from time to time by the Board of
Directors.




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ARTICLE 4 — Capital Stock




          4.1 Issuance of Stock. Unless otherwise voted by the stockholders and subject to the
provisions of the Certificate of Incorporation, the whole or any part of any unissued balance of
the authorized capital stock of the corporation or the whole or any part of any unissued balance of
the authorized capital stock of the corporation held in its treasury may be issued, sold,
transferred or otherwise disposed of by vote of the Board of Directors in such manner, for such
consideration and on such terms as the Board of Directors may determine.




          4.2 Certificates of Stock. Every holder of stock of the corporation shall be entitled
to have a certificate, in such form as may be prescribed by law and by the Board of Directors,
certifying the number and class of shares owned by him in the corporation. Each such certificate
shall be signed by, or in the name of the corporation by, the Chairman or Vice-Chairman, if any, of
the Board of Directors, or the President or a Vice President, and the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary of the corporation. Any or all of the
signatures on the certificate may be a facsimile.




          Each certificate for shares of stock which are subject to any restriction on transfer pursuant
to the Certificate of Incorporation, the By-Laws, applicable securities laws or any agreement among
any number of shareholders or among such holders and the corporation shall have conspicuously noted
on the face or back of the certificate either the full text of the restriction or a statement of
the existence of such restriction.




          4.3 Transfers. Except as otherwise established by rules and regulations adopted by the
Board of Directors, and subject to applicable law, shares of stock may be transferred on the books
of the corporation by the surrender to the corporation or its transfer agent of the certificate
representing such shares properly endorsed or accompanied by a written assignment or power of
attorney properly executed, and with such proof of authority or the authenticity of signature as
the corporation or its transfer agent may reasonably require. Except as may be otherwise required
by law, by the Certificate of Incorporation or by these By-Laws, the corporation shall be entitled
to treat the record holder of stock as shown on its books as the owner of such stock for all
purposes, including the payment of dividends and the right to vote with respect to such stock,
regardless of any




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transfer, pledge or other disposition of such stock until the shares have been transferred on the
books of the corporation in accordance with the requirements of these By-Laws.




          4.4 Lost, Stolen or Destroyed Certificates. The corporation may issue a new
certificate of stock in place of any previously issued certificate alleged to have been lost,
stolen, or destroyed, upon such terms and conditions as the Board of Directors may prescribe,
including the presentation of reasonable evidence of such loss, theft or destruction and the giving
of such indemnity as the Board of Directors may require for the protection of the corporation or
any transfer agent or registrar.




          4.5 Record Date. The Board of Directors may fix in advance a date as a record date for
the determination of the stockholders entitled to notice of or to vote at any meeting of
stockholders or to express consent (or dissent) to corporate action in writing without a meeting,
or entitled to receive payment of any dividend or other distribution or allotment of any rights in
respect of any change, conversion or exchange of stock, or for the purpose of any other lawful
action. Such record date shall not be more than 60 nor less than 10 days before the date of such
meeting, nor more than 60 days prior to any other action to which such record date relates.




          If no record date is fixed, the record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of business on the day before the day
on which notice is given, or, if notice is waived, at the close of business on the day before the
day on which the meeting is held. The record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting, when no prior action by the Board of
Directors is necessary, shall be the day on which the first written consent is expressed. The
record date for determining stockholders for any other purpose shall be at the close of business on
the day on which the Board of Directors adopts the resolution relating to such purpose.




          A determination of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.





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ARTICLE 5 — Indemnification




          The corporation shall, to the fullest extent permitted by Section 145 of the General
Corporation Law of Delaware, as that Section may be amended and supplemented from time to time,
indemnify any director, officer or trustee which it shall have power to indemnify under that
Section against any expenses, liabilities or other matters referred to in or covered by that
Section. The indemnification provided for in this Article (i) shall not be deemed exclusive of any
other rights to which those indemnified may be entitled under any By-Law, agreement or vote of
stockholders or disinterested directors or otherwise, both as to action in their official
capacities and as to action in another capacity while holding such office, (ii) shall continue as
to a person who has ceased to be a director, officer or trustee and (iii) shall inure to the
benefit of the heirs, executors and administrators of such a person. The corporation’s obligation
to provide indemnification under this Article shall be offset to the extent of any other source of
indemnification or any otherwise applicable insurance coverage under a policy maintained by the
corporation or any other person.




          To assure indemnification under this Article of all such persons who are determined by the
corporation or otherwise to be or to have been “fiduciaries” of any employee benefit plan of the
corporation which may exist from time to time, such Section 145 shall, for the purposes of this
Article, be interpreted as follows: an “other enterprise” shall be deemed to include such an
employee benefit plan, including, without limitation, any plan of the corporation which is governed
by the Act of Congress entitled “Employee Retirement Income Security Act of 1974,” as amended from
time to time; the corporation shall be deemed to have requested a person to serve an employee
benefit plan where the performance by such person of his duties to the corporation also imposes
duties on, or otherwise involves services by, such person to the plan or participants or
beneficiaries of the plan; excise taxes assessed on a person with respect to an employee benefit
plan pursuant to such Act of Congress shall be deemed “fines”; and action taken or omitted by a
person with respect to an employee benefit plan in the performance of such person’s duties for a
purpose reasonably believed by such person to be in the interest of the participants and
beneficiaries of the plan shall be deemed to be for a purpose which is not opposed to the best
interests of the corporation.



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ARTICLE 6 — General Provisions




          6.1 Fiscal Year. Except as from time to time otherwise designated by the Board of
Directors, the fiscal year of the corporation shall begin on the first day of January in each year
and end on the last day of December in each year.




          6.2 Corporate Seal. The corporate seal shall be in such form as shall be approved by
the Board of Directors.




          6.3 Waiver of Notice. Whenever any notice whatsoever is required to be given by law,
by the Certificate of  Incorporation or by these By-Laws, a waiver of such notice either in
writing signed by the person entitled to such notice or such person’s duly authorized attorney, or
by telegraph, cable or any other available method, whether before, at or after the time stated in
such waiver, or the appearance of such person or persons at such meeting in person or by proxy,
shall be deemed equivalent to such notice.




          6.4 Voting of Securities. As directed by the Board of Directors, the President or
Treasurer may waive notice of, and act as, or appoint any person or persons to act as, proxy or
attorney-in-fact for this corporation (with or without power of substitution) at, any meeting of
stockholders or shareholders of any other corporation or organization, the securities of which may
be held by this corporation.




          6.5 Evidence of Authority. A certificate
by the Secretary, or an Assistant Secretary, or a temporary Secretary, as to any action taken
by the stockholders, directors, a committee or any officer or representative of the corporation
shall as to all persons who rely on the certificate in good faith be conclusive evidence of such
action.




          6.6 Certificate of Incorporation. All references in these By-Laws to the Certificate
of Incorporation shall be deemed to refer to the Certificate of
Incorporation of the corporation, as
amended or restated and in effect from time to time.




          6.7 Transactions with Interested Parties. No contract or transaction between the
corporation and one or more of the directors or officers, or between the corporation and any other
corporation, partnership, association, or other organization in




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which one or more of the directors or officers are directors or officers, or have a financial
interest, shall be void or voidable solely for this reason, or solely because the director or
officer is present at or participates in the meeting of the Board of Directors or a committee of
the Board of Directors which authorizes the contract or transaction or solely because his or their
votes are counted for such purpose, if:





     (1) The material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the committee, and the
Board or committee in good faith authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested directors, even though the disinterested directors
be less than a quorum;




     (2) The material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the stockholders;
or




     (3) The contract or transaction is fair as to the corporation as of the time it is
authorized, approved or ratified, by the Board of Directors, a committee of the Board of
Directors, or the stockholders.



          Common or interested directors may be counted in determining the presence of a quorum at a
meeting of the Board of Directors or of a committee which authorizes the contract or transaction.




          6.8 Severability. Any determination that any provision of these By-Laws is for any
reason inapplicable, illegal or ineffective shall not affect or invalidate any other provision of
these By-Laws.




          6.9 Pronouns. All pronouns used in these By-Laws shall be deemed to refer to the
masculine, feminine or neuter, singular or plural, as the identity of the person or persons may
require.




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ARTICLE 7 — Amendments




          7.1 By the Board of Directors. These By-Laws may be altered, amended or repealed or
new by-laws may be adopted by the affirmative vote of a majority of the total number of directors,
except that no provision affecting the rights, powers, qualifications or requirements regarding the
voting of stock pursuant to Article 1 of these By-Laws may be amended unless approved by the
stockholders of the corporation.




          7.2 By the Stockholders. These By-Laws may be altered, amended or repealed or new
by-laws may be adopted by the affirmative vote of the holders of such percentage of the stock
entitled to vote as is provided in Article 1 hereof, provided that in the case of an annual or
special meeting of stockholders notice of such proposal to alter, amend or repeal these By-Laws or
adopt new by-laws shall have been stated in the notice of meeting of stockholders.




ARTICLE 8 — Right of First Refusal




          8.1 Restrictions on Transfer. No stockholder shall sell, assign, pledge, or in any
manner transfer any of the shares of stock of the corporation or any right or interest therein,
whether voluntarily or by operation of law, or otherwise except for a transfer in accordance with
this Article 8 or a transfer excepted from the provisions of
this Article  8, provided, however, that said prohibition shall not apply to: (i) any shares of Series A Convertible
Preferred Stock, $.01 par value, of the corporation; (ii) any shares of Common Stock of the
corporation into which such shares of Series A Convertible Preferred Stock have been converted;
(iii) any shares of the 12% Cumulative Redeemable Preferred Stock, $.01 par value, of the
corporation; and (iv) any shares of the capital stock of the corporation issued with respect to any
of the foregoing, by way of a stock dividend, stock split, recapitalization or otherwise. Any sale
or transfer, or purported sale or transfer, of securities of the corporation shall be null and void
unless the terms, conditions, and provisions of this By-Law are strictly observed and followed.




          8.2 First Refusal Notice. If a stockholder receives from anyone a bona fide offer
acceptable to the stockholder to purchase any of his shares of stock, then the stockholder shall




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first give written notice (the “First Refusal Notice”) thereof to the corporation (attention of the
Secretary of the corporation). The First Refusal Notice shall name and describe the proposed
transferee (including a description of any relationship or affiliation with the holder) and state
the number of shares to be transferred, the price per share and all other terms and conditions of
the offer.




          8.3 Corporation’s Right to Purchase. For thirty (30) business days following receipt
of the First Refusal Notice, the corporation shall have the option to purchase all or any lesser
number of the shares specified in such Notice at the price and upon the terms set forth in such
bona fide offer (subject to Section 8.5 below). The corporation may assign its rights hereunder to
any other person or business entity.




          8.4 Stockholders’ Right to Purchase. In the event the corporation or its assignee or
assignees do not elect to acquire all of the shares specified in the First Refusal Notice, the
Secretary of the corporation shall, within fifteen (15) business days of receipt of the First
Refusal Notice, give written notice thereof to the stockholders of the corporation, other than the
selling stockholder and other than the holders of 12% Preferred Stock. Said written notice shall
state the number of shares that the corporation has elected to purchase and that the balance of the
shares covered by the First Refusal Notice are available for purchase. Each of such other
stockholders shall have the right to purchase that proportion of the shares available for purchase
as the number of shares of Common Stock owned by each of said other stockholders bears to the total
issued and outstanding shares of the Corporation, excepting those shares owned by the selling
stockholder and excepting the shares of 12% Preferred Stock. For purposes of the foregoing
sentence, all shares of the corporation’s capital stock that are convertible into Common Stock
(other than the shares issuable from time to time upon an option held by W. R. Grace & Co. to
purchase up to 3,070,430 shares of the corporation’s Common Stock) shall be deemed to equal that
number of shares of Common Stock into which such convertible securities are then convertible. A
stockholder electing to exercise such right to purchase shall, within ten (10) business days after
mailing of the corporation’s notice, give written notice to the corporation specifying the number
of shares such stockholder will purchase. Within such ten-day period, each of said other
stockholders shall also give written notice stating how many additional shares such stockholder
will purchase (including such additional number of shares as such





- 16 -












 




stockholder wishes to purchase in the event that the number of shares available for purchase
exceeds his pro rata allotment) if additional shares are made available. Failure to respond in
writing within said ten-day period to the notice given by the Secretary of the corporation shall be
deemed a rejection of such stockholder’s right to acquire a proportionate part of the shares of the
selling stockholder. In the event one or more stockholders do not elect to acquire the shares
availabe to them, said shares shall be allocated on a pro rata basis to the stockholders who
requested shares in addition to their pro rata allotment.




          8.5 Settlement. In the event the corporation and/or
stockholders, other than the selling stockholder, elect to
acquire any of the shares of the selling stockholder as specified
in the First Refusal Notice, the Secretary of the corporation
shall so notify the selling stockholder and settlement thereof
shall be made in cash within thirty (30) business days after the
date on which the Secretary of the corporation received the First
Refusal Notice; provided, however, that if the terms of payment
set forth in the First Refusal Notice are other than cash against
delivery the corporation shall pay for said shares on the same
terms and conditions set forth in the First Refusal Notice or, at
the option of the corporation, shall pay for such shares in cash
in an amount equal to the fair market value thereof, as
determined by an independent appraiser selected by the
corporation whose determination of fair market value shall be
conclusive.




          8.6 Sale by Selling Stockholder. In the event the
corporation and stockholders do not elect to acquire all of the shares specified in the First Refusal Notice, the selling
stockholder may, within the sixty-day period following the
expiration of the rights granted to the corporation, sell
elsewhere the shares specified in the First Refusal Notice which
were not acquired by the corporation and stockholders in
accordance with the provisions of this Article 8; provided, that
said sale shall not be on terms and conditions more favorable to
the purchaser than those contained in the First Refusal Notice.
All shares so sold by said selling stockholder shall continue to
be subject to the provisions of this Article 8 in the same manner
as before said transfer.




          8.7 Exceptions. Anything to the contrary contained
herein notwithstanding, a stockholder’s transfer by gift of any
or all shares held either during such stockholder’s lifetime, or
a transfer on death by will or intestacy, in either case to such




-17-









 






stockholder’s immediate family shall be exempt from the provisions of this Article 8.
“Immediate family” as used herein shall mean spouse, lineal descendant, father, mother, brother or
sister of the stockholder making such transfer or any trust established for the benefit of any of
such persons.




               In any such case, the transferee, assignee or
other recipient shall receive and hold such stock subject to the provisions of this Article 8, and
there shall be no further transfer of such stock except in accordance with this Article 8.



          8.8 Waiver. Any or all of the provisions of this Article 8 may be waived with respect
to any transfer either by the corporation, upon duly authorized action of its Board of Directors,
or by the stockholders, upon the express written consent of the owners of not less than 55% of the
shares of Capital Stock of the Corporation issued and outstanding and entitled to vote thereon
(excluding the votes represented by those shares to be sold by the selling stockholder). This
Article 8 may be amended or repealed only by the express written consent of the owners of not less
than 55% of the then issued and outstanding shares of the capital stock of the corporation entitled
to vote thereon.




          8.9 Legend. The certificates representing shares of
the corporation shall bear on their face the following legend so
long as the foregoing right of first refusal remains in effect:





     “The shares represented by this
certificate are subject to a right of first
refusal option in favor of the corporation and
its stockholders, as provided in the By-laws of
the corporation.”



          8.10 Termination of Right of First Refusal. This
Article 8 shall terminate in its entirety and cease to be in
effect on the first to occur of the following:




               (a) the closing of the first firm underwritten
public offering of equity securities of the corporation; and



               (b) December 31, 1992.




-18-









 






NATIONAL MEDICAL CARE, INC.




Action by Unanimous Written Consent of the Board of Directors

In Lieu of a Meeting




October 16,
2008




     The undersigned, being all the Directors of National Medical Care, Inc., a Delaware
corporation (the “Corporation”), hereby consent to the adoption of the following resolutions, which
shall be treated as resolutions for all purposes and as fully as if said resolutions were adopted
at a duly called and held meeting of the Board of Directors, effective as of the date set forth
above:



     RESOLVED: That the Fourth Amended and Restated Transfer and Administration Agreement by and
among the Corporation, as Collection Agent, NMC Funding Corporation, as Transferor, the entities
party thereto as Conduit Investors, the financial institutions party thereto as Bank Investors, the
financial institutions party thereto as Administrative Agents, and WestLB AG, New York Branch, as
Agent (the “Agreement”), as previously provided to the Board, be and the same hereby is approved
and adopted, and that each officer of the Corporation be and each hereby is authorized and
directed, acting in the name of and on behalf of the Corporation to execute and deliver the
Agreement, or one or more instruments evidencing the Agreement, with such changes as any such
officer shall, in his sole discretion, deem necessary or advisable, the execution and delivery of
the same to be conclusive evidence of the authority granted hereunder.



     RESOLVED: That each officer of the Corporation be, and each of them individually hereby is,
authorized and directed, in the name and on behalf of the Corporation, to (a) negotiate, execute
and deliver such other instruments, agreements and/or documents required by, in furtherance of, or
in connection with the Agreement (collectively with the Agreement, the “Transaction Documents”)
with such changes or additions thereto as such officers may approve, the execution by any of such
officers of any such Transaction Documents or the doing by such officer of any action in connection
with the foregoing establishing conclusively such officer’s approval and the approval of the Board
of Directors, and (b) cause the Corporation to perform its obligations thereunder.



     RESOLVED: That all action taken and/or any resolutions adopted by the Corporation’s current
Board of Directors and officers in connection with the negotiation and execution of the
Transaction Documents be, and hereby are, ratified, affirmed and approved.



[Signature page to follow]




 









 








     IN WITNESS WHEREOF, the undersigned have executed this consent effective as of the
date set forth above.



	 	 	 	 	 
	 

	 	/s/ Mats Wahlstrom
 

Mats Wahlstrom
	 	 
	 
	 	 	 	 
	 

	 	/s/
Ronald J. Kuerbitz 

Ronald J. Kuerbitz
	 	 






 









 








EXHIBIT M




to




FOURTH AMENDED AND RESTATED




TRANSFER AND ADMINISTRATION AGREEMENT




FORM OF CERTIFICATE




 









 





FORM OF

CERTIFICATE


THIS
CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE TRANSFERRED, ASSIGNED,
EXCHANGED OR
CONVEYED EXCEPT IN ACCORDANCE WITH THE TRANSFER AND ADMINISTRATION AGREEMENT
REFERRED TO HEREIN. THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF, AS AMENDED, OR UNDER ANY STATE SECURITIES LAWS AND NO TRANSFER HEREOF MAY BE MADE EXCEPT IN
ACCORDANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED AND ANY OTHER
APPLICABLE LAWS.



			
	 	 	 
	No. 1

August 28, 1997
	 	One Unit




Evidencing an undivided interest in a pool of accounts receivables generated or otherwise
acquired from time to time in the ordinary course of business by NATIONAL MEDICAL CARE, INC.
and acquired by NMC FUNDING CORPORATION (the “Transferor”).


(Not an interest in or obligation of TRANSFEROR)



          This
certifies that NATIONSBANK, N.A., on behalf of and as agent for Enterprise Funding
Corporation and the Bank Investors
(as defined in the Agreement), as their respective interests may appear from time to time, is the registered
owner of an undivided interest in a pool of accounts receivables (the
“Receivables”) pursuant
to a Transfer and Administration Agreement among the Transferor, National Medical Care Inc, as
initial “Collection Agent”, Enterprise Funding Corporation,
NationsBank, N.A. and certain
financial institutions named therein, dated as of August 28, 1997 (the “Agreement”). The
Receivables consist of all accounts receivables generated under the Contracts from time to
time hereafter, all monies due or to become due in payment of the
Receivables and the other assets
and interests as provided in the Agreement.



          To the extent not defined herein, capitalized terms used herein have the meanings
assigned to such terms in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement, as amended from
time to time, the holder hereof by virtue of the acceptance hereof assents and by which the
holder hereof is bound. In the event of any inconsistency or conflict between the terms of
this Certificate and the terms of the Agreement shall control.


 







 







          This Certificate represents an undivided interest in the Receivables, including the right
to receive Collections and other amounts at the times and in the amounts specified in the
Agreement. The aggregate interest in the Receivables represented by this Certificate at any
time shall equal the Percentage Factor as determined in accordance with the Agreement.




          IN WITNESS WHEREOF, the Transferor has caused this Certificate to be duly
executed.




	 	 	 	 	 
	 	NMC FUNDING CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 





EXHIBIT N




to




FOURTH AMENDED AND RESTATED




TRANSFER AND ADMINISTRATION AGREEMENT




LIST OF APPROVED FISCAL INTERMEDIARIES




 









 





Fresenius Medical Services Fiscal Intermediary List 10/10/08




	 	 	 
	LEGAL NAME	 	Fiscal Intermediary
	Bio-Medical Applications of Aguadilla, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Alabama, Inc.

	 	Riverbend Govt Benefits
	 
	 	 
	Bio-Medical Applications of Anacostia, Inc.

	 	National Government Services
	 
	 	 
	Bio-Medical Applications of Arecibo, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Arkansas, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Bayamon, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Blue Springs, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Caguas, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of California, Inc.

	 	TrailBlazers Hlth Enterprises 

Palmetto Govt Svcs
	 
	 	 
	Bio-Medical Applications of Camarillo, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Capitol Hill, Inc.

	 	National Government Services
	 
	 	 
	Bio-Medical Applications of Carolina, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Carson, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Clinton, Inc.

	 	CAHABA
	 
	 	 
	Bio-Medical Applications of Columbia Heights, Inc.

	 	National Government Services
	 
	 	 
	Bio-Medical Applications of Connecticut, Inc.

	 	National Government Services
	 
	 	 
	Bio-Medical Applications of Delaware, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Dover, Inc.

	 	National Government Services
	 
	 	 
	Bio-Medical Applications of Eureka, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Fayetteville, Inc.

	 	CAHABA
	 
	 	 
	Bio-Medical Applications of Florida, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Fremont, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Fresno, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Georgia, Inc.

	 	Riverbend Govt Benefits
	 
	 	 
	Bio-Medical Applications of Guayama, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Humacao, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Illinois, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Indiana, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Kansas, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Kentucky, Inc.

	 	National Government Services
	 
	 	 
	Bio-Medical Applications of Long Beach, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Los Gatos, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Louisiana, LLC

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Maine, Inc.

	 	National Government Services
	 
	 	 
	Bio-Medical Applications of Manchester, Inc.

	 	National Government Services
	 
	 	 
	Bio-Medical Applications of Maryland, Inc.

	 	National Government Services
	 
	 	 
	Bio-Medical Applications of Massachusetts, Inc.

	 	National Government Services
	 
	 	 
	Bio-Medical Applications of Mayaguez, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Michigan, Inc.

	 	TrailBlazers Hlth Enterprises






 









 






Fresenius Medical Services Fiscal Intermediary List 10/10/08




	 	 	 
	LEGAL NAME	 	Fiscal Intermediary
	Bio-Medical Applications of Minnesota, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Mission Hills, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Mississippi, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Missouri, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Nevada, Inc.

	 	Noridian
	 
	 	 
	Bio-Medical Applications of New Hampshire, Inc.

	 	National Government Services
	 
	 	 
	Bio-Medical Applications of New Jersey, Inc.

	 	National Government Services
	 
	 	 
	Bio-Medical Applications of New Mexico, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of North Carolina, Inc.

	 	CAHABA 

Palmetto Govt Svcs
	 
	 	 
	Bio-Medical Applications of Northeast D.C., Inc.

	 	National Government Services
	 
	 	 
	Bio-Medical Applications of Oakland, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Ohio, Inc.

	 	TrailBlazers Hlth Enterprises 

National Government Services
	 
	 	 
	Bio-Medical Applications of Oklahoma, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Pennsylvania, Inc.

	 	National Government Services 

National Government Services
	 
	 	 
	Bio-Medical Applications of Ponce, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Puerto Rico, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Rio Piedras, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of San Antonio, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of San German, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of San Juan, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of South Carolina, Inc.

	 	Palmetto Govt Svcs
	 
	 	 
	Bio-Medical Applications of Southeast Washington, Inc.

	 	National Government Services
	 
	 	 
	Bio-Medical Applications of Tennessee, Inc.

	 	National Government Services 
Riverbend Govt Benefits 

TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of Texas, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Bio-Medical Applications of the District of Columbia, Inc.

	 	National Government Services
	 
	 	 
	Bio-Medical Applications of Virginia, Inc.

	 	National Government Services
	 
	 	 
	Bio-Medical Applications of West Virginia, Inc.

	 	National Government Services
	 
	 	 
	Bio-Medical Applications of Wisconsin, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Brazoria Kidney Center, Inc.

	 	Trailblazer
	 
	 	 
	Brevard County Dialysis, LLC

	 	First Coast
	 
	 	 
	Clayton County Dialysis, LLC

	 	BC of Georgia
	 
	 	 
	Clermont Dialysis Center, LLC

	 	First Coast
	 
	 	 
	Columbus Area Renal Alliance, LLC

	 	National Government Services
	 
	 	 
	Conejo Valley Dialysis, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Dialysis America Georgia, LLC

	 	Riverbend Govt Benefits
	 
	 	 
	Dialysis Associates of Northern New Jersey, L.L.C.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Dialysis Associates, LLC

	 	BC of Georgia






 









 






Fresenius Medical Services Fiscal Intermediary List 10/10/08




	 	 	 
	LEGAL NAME	 	Fiscal Intermediary
	Dialysis Centers of America — Illinois, Inc.

	 	National Government Services
	 
	 	 
	Dialysis Management Corporation

	 	Trailblazer
	 
	 	 
	Dialysis Specialists of Topeka, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Dialysis Specialists of Tulsa, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Douglas County Dialysis, LLC

	 	BC of Georgia
	 
	 	 
	Du Page Dialysis, Ltd.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Everest Healthcare Indiana, Inc.

	 	TrailBlazers Hlth Enterprises 

National Government Services
	 
	 	 
	Everest Healthcare Ohio, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Everest Healthcare Rhode Island, Inc.

	 	National Government Services
	 
	 	 
	Everest Healthcare Texas, L.P.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Fondren Dialysis Clinic, Inc.

	 	Trailblazer
	 
	 	 
	Fort Scott Regional Dialysis Center, Inc.

	 	Trailblazer
	 
	 	 
	Four State Regional Dialysis Center, Inc.

	 	Trailblazer
	 
	 	 
	Fresenius Medical Care Dialysis Services — Oregon, LLC

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Fresenius Medical Care Dialysis Services Colorado LLC

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Henry Dialysis Center, LLC

	 	BC of Georgia
	 
	 	 
	Holton Dialysis Clinic, LLC

	 	BC of Georgia
	 
	 	 
	Home Dialysis of Muhlenburg County, Inc.

	 	National Government Services
	 
	 	 
	Jefferson County Dialysis, Inc.

	 	Trailblazer
	 
	 	 
	KDCO, Inc.

	 	Trailblazer
	 
	 	 
	Kentucky Renal Care Group, LLC

	 	National Government Services
	 
	 	 
	Lawton Dialysis, Inc.

	 	Trailblazer
	 
	 	 
	Little Rock Dialysis, Inc.

	 	Trailblazer
	 
	 	 
	Maumee Dialysis Services, LLC

	 	National Government Services
	 
	 	 
	Miami Regional Dialysis Center, Inc.

	 	Trailblazer
	 
	 	 
	Michigan Home Dialysis Center, Inc.

	 	Riverbend Govt Benefits
	 
	 	 
	National Medical Care, Inc.

	 	TrailBlazers Hlth Enterprises 

National Government Services 

Riverbend Govt Benefits
	 
	 	 
	National Nephrology Associates of Texas, L.P.

	 	BC of Georgia
	 
	 	 
	NNA of Alabama, Inc.

	 	BC of Georga
	 
	 	 
	NNA of East Orange, L.L.C.

	 	BC of Georgia
	 
	 	 
	NNA of Florida, LLC

	 	BC of Georga
	 
	 	 
	NNA of Georgia, Inc.

	 	BC of Georgia
	 
	 	 
	NNA of Harrison, L.L.C.

	 	BC of Georgia
	 
	 	 
	NNA of Louisiana, LLC

	 	BC of Georga
	 
	 	 
	NNA of Oklahoma, L.L.C.

	 	BC of Georgia
	 
	 	 
	NNA of Rhode Island, Inc.

	 	BC of Georgia
	 
	 	 
	NNA of Toledo, Inc.

	 	BC of Georgia
	 
	 	 
	NNA-Saint Bamabas, L.L.C.

	 	BC of Georgia






 









 






Fresenius Medical Services Fiscal Intermediary List 10/10/08




	 	 	 
	LEGAL NAME	 	Fiscal Intermediary
	NNA-Saint Bamabas-Livingston, L.L.C.

	 	BC of Georgia
	 
	 	 
	Norcross Dialysis Center, LLC

	 	BC of Georgia
	 
	 	 
	Northern New Jersey Dialysis, LLC

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Physicians Dialysis Company, Inc.

	 	National Government Services 

Riverbend
	 
	 	 
	QUALICENTERS ALBANY, LTD.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	QUALICENTERS BEND, LLC

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	QUALICENTERS COOS BAY, LTD.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	QUALICENTERS EUGENE-SPRINGFIELD, LTD.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	QUALICENTERS INLAND NORTHWEST, LLC

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	QUALICENTERS PUEBLO, LLC

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	QUALICENTERS SALEM, LLC

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	QUALICENTERS SIOUX CITY, LLC

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	QUALITY CARE DIALYSIS CENTER OF VEGA BAJA, INC.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	RCG Bloomington, LLC

	 	National Government Services
	 
	 	 
	RCG East Texas, LLP

	 	Trailblazer
	 
	 	 
	RCG Indiana, L.L.C.

	 	National Government Services
	 
	 	 
	RCG Irving, LLP

	 	Trailblazer
	 
	 	 
	RCG Martin, LLC

	 	Riverbend
	 
	 	 
	RCG Memphis East, LLC

	 	Riverbend
	 
	 	 
	RCG Mississippi, Inc.

	 	Trailblazer 

Trispan
	 
	 	 
	RCG University Division, Inc.

	 	National Government Services 

Riverbend
	 
	 	 
	Renal Care Group Alaska, Inc.

	 	Noridian
	 
	 	 
	Renal Care Group East, Inc.

	 	Highmark Medicare Services
	 
	 	 
	Renal Care Group Northwest, Inc.

	 	Noridian
	 
	 	 
	Renal Care Group of the Midwest, Inc.

	 	Riverbend 

Trailblazer
	 
	 	 
	Renal Care Group of the Ozarks, LLC

	 	Trailblazer
	 
	 	 
	Renal Care Group of the South, Inc.

	 	Riverbend
	 
	 	 
	Renal Care Group of the Southeast, Inc.

	 	Riverbend
	 
	 	 
	Renal Care Group South New Mexico, LLC

	 	Trailblazer
	 
	 	 
	Renal Care Group Texas, Inc.

	 	Trailblazer
	 
	 	 
	Renal Care Group Westlake, LLC

	 	National Government Services
	 
	 	 
	Renex Dialysis Clinic of Bloomfield, Inc.

	 	BC of Georgia
	 
	 	 
	Renex Dialysis Clinic of Bridgeton, Inc.

	 	BC of Georgia
	 
	 	 
	Renex Dialysis Clinic of Creve Coeur, Inc.

	 	BC of Georgia
	 
	 	 
	Renex Dialysis Clinic of Doylestown, Inc.

	 	BC of Georgia
	 
	 	 
	Renex Dialysis Clinic of Maplewood, Inc.

	 	BC of Georgia
	 
	 	 
	Renex Dialysis Clinic of Orange, Inc.

	 	BC of Georgia






 









 






Fresenius Medical Services Fiscal Intermediary List 10/10/08




	 	 	 
	LEGAL NAME	 	Fiscal Intermediary
	Renex
Dialysis Clinic of Penn Hills, Inc.

	 	BC of Georgia
	 
	 	 
	Renex Dialysis Clinic of Pittsburgh, Inc.

	 	Riverbend 

BC of Georgia
	 
	 	 
	Renex Dialysis Clinic of Shaler, Inc.

	 	BC of Georgia
	 
	 	 
	Renex Dialysis Clinic of South Georgia, Inc.

	 	BC of Georgia
	 
	 	 
	Renex Dialysis Clinic of St. Louis, Inc.

	 	BC of Georgia
	 
	 	 
	Renex Dialysis Clinic of Union, Inc.

	 	BC of Georgia
	 
	 	 
	Renex Dialysis Clinic of University City, Inc.

	 	BC of Georgia
	 
	 	 
	Renex Dialysis Clinic of Woodbury, Inc.

	 	BC of Georgia
	 
	 	 
	Renex Dialysis Facilities, Inc.

	 	BC of Georgia
	 
	 	 
	San Diego Dialysis Services, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Santa Barbara Community Dialysis Center, Inc.

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Smyma Dialysis Center, LLC

	 	BC of Georgia
	 
	 	 
	SSKG, Inc.

	 	National Government Services
	 
	 	 
	STAT Dialysis Corporation

	 	Trailblazer
	 
	 	 
	Stone Mountain Dialysis Center, LLC

	 	BC of Georgia
	 
	 	 
	Stuttgart Dialysis, LLC

	 	Trailblazer
	 
	 	 
	Terrell Dialysis Center, LLC

	 	TrailBlazers Hlth Enterprises
	 
	 	 
	Three Rivers Dialysis Services, LLC

	 	National Government Services
	 
	 	 
	West Palm Dialysis, LLC

	 	First Coast
	 
	 	 
	Wharton Dialysis, Inc.

	 	Trailblazer
	 
	 	 
	WSKC Dialysis Services, Inc.

	 	TrailBlazers Hlth Enterprises






 









 








EXHIBIT O




to




FOURTH AMENDED AND RESTATED




TRANSFER AND ADMINISTRATION AGREEMENT




FORM OF TRANSFERRING AFFILIATE LETTER





 












 





EXECUTION COPY




AMENDED AND RESTATED TRANSFERRING AFFILIATE LETTER




Dated as of October 16, 2008




NATIONAL MEDICAL CARE, INC.

920 Winter Street

Waltham, MA 02451

Attention: Mark Fawcett




Dear Sirs:



We refer to the Amended and Restated Receivables Purchase Agreement dated as of October 16, 2008
between National Medical Care, Inc. (the “Seller”) and NMC Funding Corporation (the “Purchaser”)
(such Agreement, as it may be amended, supplemented or otherwise modified from time to time being
the “Agreement”). The undersigned Transferring Affiliates are parties to that certain Transferring
Affiliate Letter dated as of August 28, 1997 (as amended prior to the date hereof, the “Existing
Transferring Affiliate Letter’). The undersigned Transferring Affiliates hereby desire to amend and
restate the Existing Transferring Affiliate Letter. Capitalized terms used and not otherwise
defined in this Amended and Restated Transferring Affiliate Letter (this “Transferring Affiliate
Letter”) have the meanings specified in the Agreement or, if not defined in the Agreement, in the
Transfer and Administration Agreement referred to therein.



Effective as of the date hereof, this Transferring Affiliate Letter amends, restates and supersedes
the Existing Transferring Affiliate Letter. This Transferring Affiliate Letter is not intended to
constitute a novation of any obligations under the Existing Transferring Affiliate Letter. Upon the
effectiveness of this Transferring Affiliate Letter, each reference to the Existing Transferring
Affiliate Letter in any other document, instrument or agreement executed and/or delivered in
connection therewith shall mean and be a reference to this Transferring Affiliate Letter.



1. Each of the undersigned Transferring Affiliates will from time to time forthwith sell to the
Seller, and the Seller will from time to time forthwith purchase from such Transferring Affiliate,
all of the present and future Receivables, and all Related Security, if any, with respect thereto,
which are owed from time to time to such Transferring Affiliate for an amount equal to the face
amount of such Receivables, which amount the Seller shall pay to such Transferring Affiliate in
cash or by way of a credit to such Transferring Affiliate in the appropriate intercompany account
by the last Business Day of the month following the month in which such purchase was made; it being
further agreed that (a) that each such purchase of each such Receivable and Related Security with
respect thereto shall be deemed to be made on the date such Receivable is created, and (b) the
Seller shall settle from time to time each such credit to the account of such Transferring
Affiliate, by way of payments in cash or by way of credits in amounts equal to cash expended,
obligations incurred or the value of services or property provided by or on behalf of


 









 






the Seller, in each case for the benefit of such Transferring Affiliate in accordance
with the Seller’s and such Transferring Affiliate’s cash management and accounting policies.



It is the intention of the Seller and the Purchaser that each Purchase under the Agreement shall
constitute a sale of such Receivables, together with the Related Assets with respect thereto, from
the Seller to the Purchaser, conveying good title thereto free and clear of any Adverse Claims, and
that such Receivables and Related Assets not be part of the Seller’s estate in the event of an
insolvency. If, notwithstanding the foregoing, the transactions contemplated under the Agreement
should be deemed a financing, the Seller and the Purchaser intend that the Seller shall be deemed
to have granted to the Purchaser a first priority perfected and continuing security interest in all
of the Seller’s right, title and interest in, to and under the Receivables, together with the
Related Assets with respect thereto, and together with all of the Seller’s rights hereunder, under
the BMA Transfer Agreement and all other Transaction Documents with respect to the Receivables and
with respect to any obligations thereunder of any Originating Entity with respect to the
Receivables, and that the Agreement shall constitute a security agreement under applicable law. The
Seller under the Agreement has assigned to the Purchaser all of its rights and remedies hereunder
and under the BMA Transfer Agreement (and all instruments, documents and agreements executed in
connection therewith) with respect to the Receivables and with respect to any obligations
thereunder of any Originating Entity with respect to the Receivables.



2. Each Transferring Affiliate hereby severally agrees as follows:



(a) Such Transferring Affiliate shall make each such sale strictly in accordance with the terms of
this Transferring Affiliate Letter, without regard to whether any other Transferring Affiliate has
performed or failed to perform any of such other Transferring Affiliate’s obligations hereunder.



(b) Such Transferring Affiliate will instruct all Obligors to cause all Collections to be deposited
directly into a Special Account.



(c) Such Transferring Affiliate will act as the Seller’s agent for any Collections received by such
Transferring Affiliate with respect to Receivables sold by such Transferring Affiliate to the
Seller and such Collections will be held in trust and segregated from the other funds of such
Transferring Affiliate until the same are delivered to the Seller. Such Transferring Affiliate
agrees that such Collections constitute the Seller’s property and shall be promptly deposited
directly to a Special Account.



(d) Such Transferring Affiliate will not add or terminate any bank as a Special Account Bank to
or from those listed in Exhibit C to the Agreement, nor make any change in its instructions to
Obligors regarding payments to be made to any Special Account Bank; provided that a
Transferring Affiliate may (A) add any bank as a Special Account Bank for purposes of this
Transferring Affiliate Letter at any time following delivery to the Seller and its assigns of
written
notice of such addition and a Special Account Letter duly executed by such bank, and (B)
terminate any Special Account Bank at any time following delivery to the Seller and its assigns
of written notice of such termination and evidence satisfactory to the Seller and its assigns that


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the affected Obligors shall have been instructed to remit all subsequent Collections to
another Special Account.



(e) In the event any Transferring Affiliate has instructed its Obligors to remit Collections to a
Special Account that is maintained in the name of any Person other than such Transferring
Affiliate, such Transferring Affiliate shall at all times ensure that such Person qualifies as a
Designated Account Agent, including, without limitation, by causing such Person to execute and
deliver to the Seller an Account Agent Agreement and by causing such Account Agent Agreement to
remain in effect at all times. In furtherance of the foregoing, each such Transferring Affiliate
hereby authorizes and directs each Person maintaining a Special Account on behalf of such
Transferring Affiliate to (i) execute, and deliver to the Seller and its assigns, an Account Agent
Agreement, (ii) execute and deliver a Special Account Letter in respect of each such Special
Account maintained by such Person, and (iii) otherwise take all actions, or omit to take all
actions, required to be taken, or required to be omitted to be taken, by such Transferring
Affiliate with respect to such Special Accounts in accordance with the terms of this Transferring
Affiliate Letter.



3. Each Transferring Affiliate shall provide (or, if applicable, shall cause its Designated Account
Agents to provide) standing instructions to each Special Account Bank (which standing
instructions shall be maintained in full force and effect at all times) to transfer, prior to the
close
of business each banking day (i) all Collections on deposit during such banking day in the
Special Accounts at such Special Account Bank to the Concentration Account or an Intermediate
Concentration Account and (ii) if an Intermediate Concentration Account has been established at
such Special Account Bank, all Collections on deposit during such banking day in such
Intermediate Concentration Account to the Concentration Account; provided, however, that if
the Collections on deposit in any Special Account during such banking day shall be less than
$20,000.00 (the “Minimum Amount”), the Special Account Bank shall transfer such Collections
to the Concentration Account, or to the Intermediate Concentration Account, as applicable, on
the next succeeding banking day in which Collections in such Special Account first exceed the
Minimum Amount.



4. Each Transferring Affiliate hereby authorizes the Seller and its assigns, to the extent
permitted by applicable law, to take any and all steps in such Transferring Affiliate’s name and
on behalf of such Transferring Affiliate to collect all amounts due under such Receivables and
Related Security, including, without limitation, endorsing such Transferring Affiliate’s name on
checks and other instruments representing collections and enforcing such Receivables and
Related Security and the related Contracts; provided, however, neither that the Seller nor any of
its assigns shall have the power or authority to direct Obligors of Receivables or Related Security
payable under the CHAMPUS/VA, Medicare or Medicaid program to make payments of
amounts due or to become due to such Transferring Affiliate in respect of such Receivables or
Related Security directly either to the Intermediate Concentration Account or the Concentration
Account or to the Seller, the Seller’s assigns or any of their respective designees, except for any
such payment in respect of such Receivables or Related Security or any assignment thereof that
is established by, or made pursuant to, the order of a court of competent jurisdiction.




3









 







5. Each Transferring Affiliate agrees that from time to time, to the extent permitted by
applicable law, it will promptly execute and deliver all further instruments and documents, and
take all further action that the Seller or its assigns may reasonably request in order to perfect,
protect or more fully evidence the ownership interest of the Seller in the Receivables, Related
Security and Collections, and any interest therein acquired by any assignee of the Seller, or to
enable the Seller or its assigns to exercise or enforce any of their respective rights hereunder or
under the Agreement or the Certificate. Without limiting the generality of the foregoing, each
Transferring Affiliate will, upon the request of the Seller or its assigns: (i) execute and file
such
financing or continuation statements, or amendments thereto or assignments thereof, and such
other instruments or notices, as may be necessary or appropriate in order to perfect, protect or
evidence the ownership interest of the Seller or the interest of any assignee thereof; (ii) mark
conspicuously each of its records evidencing each Receivable and Related Security and the
related Contract with a legend, acceptable to the Seller and its assigns, evidencing that such
Receivable and Related Security have been sold in accordance with this Transferring Affiliate
Letter, the Agreement or any document, instrument or agreement made in favor of any assignee;
and (iii) mark its master data processing records evidencing such Receivables and Related
Security and related Contracts with such legend. Each Transferring Affiliate hereby authorizes
the Seller to file one or more financing or continuation statements, and amendments thereto and
assignments thereof, relative to the Receivables and Related Security sold by it to the Seller or
any assignee now existing or hereafter arising without the signature of such Transferring
Affiliate where permitted by law. If any Transferring Affiliate fails to perform any of its
agreements or obligations under this Letter, the Seller or any of its assigns may (but shall not be
required to) itself perform, or cause performance of, such agreement or obligation, and the
expenses of the Seller or any of its assigns incurred in connection therewith shall be payable by
such Transferring Affiliate.



6. Each Transferring Affiliate hereby severally represents and warrants as to itself as follows:



(a) Such Transferring Affiliate is a corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdiction in which it is organized and existing and is duly
qualified to do business, and is in good standing, in every jurisdiction where the nature of its
business requires it to be so qualified and where the failure to so qualify would materially and
adversely affect the business, condition, operations or properties of such Transferring Affiliate.



(b) The execution, delivery and performance by such Transferring Affiliate of this Transferring
Affiliate Letter are within such Transferring Affiliate’s corporate powers, have been duly
authorized by all necessary corporate action, do not contravene (i) such Transferring Affiliate’s
charter or by-laws, (ii) any law, rule or regulation, including, without limitation the Social
Security Act, any CHAMPUS Regulation, any Medicaid Regulation or any Medicare Regulation
or (iii) any contractual or legal restriction binding on or affecting such Transferring Affiliate
or
its properties, and do not result in or require the creation of any Adverse Claim (other than
pursuant hereto) upon or with respect to any of its properties; and no transaction contemplated
hereby requires compliance with any bulk sales act or similar law.


4









 






(c) No authorization or approval or other action by, and no notice to or filing with,
any
governmental authority or regulatory body is required for the due execution, delivery and
performance by such Transferring Affiliate of this Transferring Affiliate Letter or for the
perfection of or the exercise by the Seller or any assignee thereof of their respective rights and
remedies under this Transferring Affiliate Letter, except for the filings of the financing
statements referred to in Article IV of the TAA, all of which, on or prior to the date of the
initial
purchase thereunder, will have been duly made and be in full force and effect.



(d) This Transferring Affiliate Letter is the legal valid and binding obligation of such
Transferring Affiliate enforceable against such Transferring Affiliate in accordance with its
terms, except as may be limited by the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights generally and by general
principles of equity.



(e) Such Transferring Affiliate will be, at the time of each sale hereunder, the legal and
beneficial owner of each Receivable, and any Related Security with respect thereto, originally
owed to such Transferring Affiliate and sold from time to time to the Seller hereunder, free and
clear of any Adverse Claim except as created by the Agreement (or any subsequent assignment
by the assignee thereunder). Upon each such sale of each such Receivable and Related Security
hereunder, the Seller will acquire all right, title and interest in and to, and a valid and
perfected
first priority 100% ownership interest in, such Receivable and Related Security, and Collections
with respect thereto, free and clear of any Adverse Claim except as created by the Agreement (or
any subsequent assignment by the assignee thereunder). No effective financing statement or
other instrument similar in effect covering any such Receivable or Related Security, or
Collections with respect thereto, is on file in any recording office, except those filed in favor
of
the Seller relating to the Agreement (or any subsequent assignment by the assignee thereunder).



(f) Each Investor Report (to the extent that information contained therein is supplied by such
Transferring Affiliate), information, exhibit, financial statement, document, book, record or
report furnished or to be furnished at any time by such Transferring Affiliate to the Seller or any
of its assigns in connection the Agreement is or will be accurate in all material respects as of
its
date or (except as otherwise disclosed to the Seller or the applicable assignee, as the case may
be,
at such time) as of the date so furnished, and no such document (if not prepared by or under the
direction of such Transferring Affiliate or to the extent that the information contained therein is
not supplied by such Transferring Affiliate, to the best of such Transferring Affiliate’s
knowledge) contains or will contain any untrue statement of a material fact or omits or will omit
to state a material fact necessary in order to make the statements contained therein, in the light
of
the circumstances under which they were made, not misleading.



(g) (i) The chief executive office of such Transferring Affiliate, except NMC Medical Products,
Inc., is located at 920 Winter Street, Waltham, Massachusetts 02451, and (ii) the office where
such Transferring Affiliate keeps its records concerning the Receivables is located at the address
specified for such Transferring Affiliate in Exhibit J to the Agreement (or, in the case of each of
clauses (i) or (ii) above, at such other locations, notified to the Seller and its assigns in


5









 






accordance with Section 2.6 of the Agreement, in jurisdictions where all action
required by Section 2.6 of the Agreement has been taken and completed).



(h) The names and addresses of all the Special Account Banks, together with the account numbers of
the Special Accounts and the account numbers of the Intermediate Concentration Account, at such
Special Account Banks and, if applicable, the name of each Designated Account Agent, are specified
in Exhibit C to the Agreement (or at such other Special Account Banks, with such other Special
Accounts, Intermediate Concentration Account or with such other Designated Account Agents in
respect of which all of the requirements set forth in Section 5.2(e) of the Agreement have been
satisfied).



Each Transferring Affiliate acknowledges that it has received a copy of the Agreement and hereby
severally represents and warrants that each representation and warranty made by the Seller under
the Agreement in respect of such Transferring Affiliate, or in respect of any of the assets or
properties of such Transferring Affiliate, is true and correct and shall be true and correct on
each date under the Agreement on which the Seller is required to remake (or is deemed to have
remade) any such representation and warranty for the benefit of the Purchaser. In addition, with
respect to any covenant or undertaking required to be performed by the Seller under the Agreement
which relates to any Transferring Affiliate or the assets or properties of such Transferring
Affiliate, such Transferring Affiliate severally agrees to take all action, or if applicable to
omit to take any action, the taking (or omission to take) of which enables the Seller to comply
fully and on a timely basis with the terms and conditions of such covenant or undertaking.



7. Anything to the contrary herein notwithstanding, all CHAMPUS/VA, Medicare or
Medicaid payments which are made by an Obligor with respect to any Receivables shall be
collected from such Obligor only by (i) the Transferring Affiliate which furnished the services
for which such payments are made or (ii) an agent of such Transferring Affiliate, except to
the
extent that an Obligor may be required to submit any such payments directly to a Person other
than a Transferring Affiliate pursuant to a court-ordered assignment which is valid, binding and
enforceable under applicable federal and state CHAMPUS/VA, Medicare and Medicaid laws,
rules and regulations; and this Transferring Affiliate Letter shall not be construed to permit any
other Person, in violation of applicable federal and state CHAMPUS/VA, Medicare or Medicaid
laws, rules and regulations to collect or receive, or to be entitled to collect or receive, any
such
payments prior to a Transferring Affiliate’s or such agent’s receipt thereof.



8. No amendment or waiver of any provision of this Transferring Affiliate Letter, and no
consent to any departure by any Transferring Affiliate herefrom, shall in any event be effective
unless the same shall be in writing and signed by the Seller, each assignee of the Seller and the
Transferring Affiliate or Transferring Affiliates to be bound thereby (or, in the case of waiver,
by
the party or parties waiving the provision hereof), and then such amendment, waiver or consent
shall be effective only in the specific instance and for the specific purpose for which given.



9. All notices and other communications provided for hereunder shall, unless otherwise
stated herein, be in writing (including telecopier, telegraphic, telex or cable communication) and
mailed, telecopied, telegraphed, telexed, cabled or delivered, as to each party hereto, at its


6









 






address set forth, in the case of each Transferring Affiliate, as its chief executive
office on Exhibit J to the Agreement; in the case of the Seller, under its name on the signature
pages of the Agreement; in the case of any assignee of the Seller, such address as shall have been
notified by such assignee to the Transferring Affiliates; or, in the case of each party hereto (or
any such assignee), at such other address as shall be designated by such party in a written notice
to the Seller and its assignees. All such notices and communications shall, when mailed,
telecopied, telegraphed, telexed or cabled, be effective when deposited in the mails, telecopied,
delivered to the telegraph company, confirmed by telex answerback or delivered to the cable
company, respectively.



10. This Transferring Affiliate Letter shall be binding upon, and inure to the benefit of, and
be enforceable by, each Transferring Affiliate, the Seller and their respective successors and
assigns, except that no Transferring Affiliate shall have the right to assign its rights hereunder
or
any interest herein without the prior written consent of the Seller and its assigns.



11. The Seller may assign at any time any or all of its rights and obligations hereunder and
interests herein to any other Person without the consent of the any Transferring Affiliate.
Without limiting the foregoing, each Transferring Affiliate acknowledges that (i) the Seller,
pursuant to the Agreement, shall assign to the Purchaser all of its right, title and interest in
and to
the Receivables and the Related Security, together with all of its rights, remedies, powers and
privileges hereunder, (ii) the Purchaser, pursuant to that certain Fourth Amended and Restated
Transfer and Administration Agreement dated as of October 16, 2008 (as amended, restated,
supplemented or otherwise modified from time to time, the “TAA”) among the Purchaser, as
“Transferor”, the Seller, as the initial “Collection Agent” thereunder, the Persons parties thereto
as “Conduit Investors”, the Persons parties thereto as “Bank Investors” (together with the
Conduit Investors, the “Investors”), the Persons parties thereto as “Administrative Agents” and
WestLB AG, New York Branch, as agent (in such capacity, the “Agent”), shall assign to the
Agent, for the benefit of the Investors, an undivided percentage ownership interest in all of the
Purchaser’s right, title and interest in and to the Receivables and the Related Security, together
with all of the Purchaser’s rights, remedies, powers and privileges hereunder, and (iii) the Agent
or any Investor may further assign such rights, interests, remedies, powers and privileges to the
extent permitted in the TAA. Each Transferring Affiliate agrees that the Agent, as the assignee
of the Seller, shall, subject to the terms of the TAA, have the right to enforce this Transferring
Affiliate Letter and to exercise directly all of the Seller’s rights and remedies under this
Transferring Affiliate Letter (including, without limitation, the right to give or withhold any
consents or approvals of the Seller to be given or withheld hereunder) and each Transferring
Affiliate agrees to cooperate fully with the Agent and the Collection Agent in the exercise of
such rights and remedies. Each Transferring Affiliate agrees to give to the Agent copies of all
notices it is required to give to the Seller hereunder and to permit the Agent and the Investors
(and their assignees) to inspect the books and records of such Transferring Affiliate relating to
the Receivables and the Related Security at any time, upon reasonable notice given by the Agent
or such Investor to the Seller and such Transferring Affiliate. Each Transferring Affiliate agrees
that, to the extent the Seller is herein permitted to take any action or to provide any information
or report, the Agent and the Investors (and their assignees) may similarly so direct and require
(with or without the concurrence of the Seller) such Transferring Affiliate to take such action or


7









 






to provide such information or report. This Transferring Affiliate Letter shall create and
constitute the continuing obligations of the parties hereto in accordance with its terms, and shall
remain in full force and effect until the date (the “Collection Date”) that the TAA shall be
terminated in accordance with its terms and all “Aggregate Unpaids” thereunder paid in full;
provided, however, that the rights and remedies with respect to any breach of any
representation and warranty made by any Transferring Affiliate hereunder shall be continuing and
shall survive any termination of this Transferring Affiliate Letter.



12. Each Transferring Affiliate hereby covenants and agrees that, prior to the date which is one
year and one day after the payment in full of all outstanding commercial paper or other
indebtedness of any Conduit Investor, it will not institute against, or join any other Person in
instituting against, such Conduit Investor any bankruptcy, reorganization, arrangement
insolvency or liquidation proceedings or other similar proceeding under the laws of the United
States or any state of the United States. Each Transferring Affiliate further covenants and agrees
that, prior to the date which is one year and one day after the Collection Date, it will not
institute
against, or join any other Person in instituting against, the Purchaser any bankruptcy,
reorganization, arrangement insolvency or liquidation proceedings or other similar proceeding
under the laws of the United States or any state of the United States.



13. No failure on the part of the Seller or any assignee thereof to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof or the exercise of
any other right. The remedies herein provided are cumulative and not exclusive of any remedies
provided by law.



14. This Transferring Affiliate Letter shall be governed by, and construed in accordance with,
the laws of the State of New York, except to the extent that the perfection of the interests of the
Seller and its assigns, or remedies hereunder, in respect of the Receivables, any Related Security
or any Collections in respect thereof, are governed by the laws of a jurisdiction other than the
State of New York.



15. The Seller and each of its assignees (including the Agent) is hereby authorized by each of
the Transferring Affiliates and the Seller to demand specific performance of this Transferring
Affiliate Letter at any time when any of the Transferring Affiliates or the Seller shall have
failed
to comply with any of the provisions of this Transferring Affiliate Letter applicable to any such
Transferring Affiliate or the Seller. Each of the Transferring Affiliates and the Seller hereby
irrevocable waives any defense based on the adequacy of a remedy at law, which might be
asserted as a bar to such remedy of specific performance.



16. This Transferring Affiliate Letter may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which when taken together shall constitute one and the same
agreement.




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Very truly yours,



ANGLETON DIALYSIS, INC.

ARIZONA RENAL INVESTMENTS, LLC

BIO-MEDICAL APPLICATIONS HOME DIALYSIS SERVICES, INC.

BIO MEDICAL APPLICATIONS MANAGEMENT COMPANY, INC.

BIO-MEDICAL APPLICATIONS OF ALABAMA, INC.

BIO-MEDICAL APPLICATIONS OF ANACOSTIA, INC.

BIO-MEDICAL APPLICATIONS OF AQUADILLA, INC.

BIO-MEDICAL APPLICATIONS OF ARECIBO, INC.

BIO-MEDICAL APPLICATIONS OF ARKANSAS, INC.

BIO-MEDICAL APPLICATIONS OF BAYAMON, INC.

BIO-MEDICAL APPLICATIONS OF BLUE SPRINGS, INC

BIO-MEDICAL APPLICATIONS OF CAGUAS, INC.

BIO-MEDICAL APPLICATIONS OF CALIFORNIA, INC.

BIO-MEDICAL APPLICATIONS OF CAMARILLO, INC.

BIO-MEDICAL APPLICATIONS OF CAPITOL HILL, INC.

BIO-MEDICAL APPLICATIONS OF CAROLINA, INC.

BIO-MEDICAL APPLICATIONS OF CARSON, INC.

BIO-MEDICAL APPLICATIONS OF CLINTON, INC.

BIO-MEDICAL APPLICATIONS OF COLUMBIA HEIGHTS, INC.

BIO-MEDICAL APPLICATIONS OF CONNECTICUT, INC.

BIO-MEDICAL APPLICATIONS OF DELAWARE, INC.

BIO-MEDICAL APPLICATIONS OF DOVER, INC.

BIO-MEDICAL APPLICATIONS OF EAST ORANGE, INC

BIO-MEDICAL APPLICATIONS OF ESSEX, INC.

BIO-MEDICAL APPLICATIONS OF EUREKA, INC.

BIO-MEDICAL APPLICATIONS OF FAYETTEVILLE, INC.

BIO-MEDICAL APPLICATIONS OF FLORIDA, INC.

BIO-MEDICAL APPLICATIONS OF FREMONT, INC.

BIO-MEDICAL APPLICATIONS OF FRESNO, INC.

BIO-MEDICAL APPLICATIONS OF GEORGIA, INC.

BIO-MEDICAL APPLICATIONS OF GLENDORA, INC.

BIO-MEDICAL APPLICATIONS OF GUAYAMA, INC.

BIO-MEDICAL APPLICATIONS OF HILLSIDE, INC.

BIO-MEDICAL APPLICATIONS OF HOBOKEN, INC.

BIO-MEDICAL APPLICATIONS OF HUMACAO, INC.




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BIO-MEDICAL APPLICATIONS OF ILLINOIS, INC.

BIO-MEDICAL APPLICATIONS OF INDIANA, INC.

BIO-MEDICAL APPLICATIONS OF IRVINGTON, INC.

BIO-MEDICAL APPLICATIONS OF JERSEY CITY, INC.

BIO-MEDICAL APPLICATIONS OF KANSAS, INC.

BIO-MEDICAL APPLICATIONS OF KENTUCKY, INC.

BIO-MEDICAL APPLICATIONS OF LAS AMERICAS, INC.

BIO-MEDICAL APPLICATIONS OF LONG BEACH, INC.

BIO-MEDICAL APPLICATIONS OF LOS GATOS, INC.

BIO-MEDICAL APPLICATIONS OF LOUISIANA, LLC

BIO-MEDICAL APPLICATIONS OF MAINE, INC.

BIO-MEDICAL APPLICATIONS OF MANCHESTER, INC.

BIO-MEDICAL APPLICATIONS OF MARYLAND, INC.

BIO-MEDICAL APPLICATIONS OF MASSACHUSETTS, INC.

BIO-MEDICAL APPLICATIONS OF MAYAGUEZ, INC.

BIO-MEDICAL APPLICATIONS OF MICHIGAN, INC.

BIO-MEDICAL APPLICATIONS OF MINNESOTA, INC.

BIO-MEDICAL APPLICATIONS OF MISSION HILLS, INC.

BIO-MEDICAL APPLICATIONS OF MISSISSIPPI, INC.

BIO-MEDICAL APPLICATIONS OF MISSOURI, INC.

BIO-MEDICAL APPLICATIONS OF MLK, INC.

BIO-MEDICAL APPLICATIONS OF NEVADA, INC

BIO-MEDICAL APPLICATIONS OF NEW HAMPSHIRE, INC.

BIO-MEDICAL APPLICATIONS OF NEW JERSEY, INC.

BIO-MEDICAL APPLICATIONS OF NEW MEXICO, INC.

BIO-MEDICAL APPLICATIONS OF NORTH CAROLINA, INC.

BIO-MEDICAL APPLICATIONS OF NORTHEAST, D.C., INC.

BIO-MEDICAL APPLICATIONS OF OAKLAND, INC.

BIO-MEDICAL APPLICATIONS OF OHIO, INC.

BIO-MEDICAL APPLICATIONS OF OKLAHOMA, INC.

BIO-MEDICAL APPLICATIONS OF PENNSYLVANIA, INC.

BIO-MEDICAL APPLICATIONS OF PINE BROOK, INC.

BIO-MEDICAL APPLICATIONS OF PONCE, INC.

BIO-MEDICAL APPLICATIONS OF PUERTO RICO, INC.

BIO-MEDICAL APPLICATIONS OF RHODE ISLAND, INC.

BIO-MEDICAL APPLICATIONS OF RIO PIEDRAS, INC.

BIO-MEDICAL APPLICATIONS OF SAN ANTONIO, INC.

BIO-MEDICAL APPLICATIONS OF SAN GERMAN, INC.




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BIO-MEDICAL APPLICATIONS OF SAN JUAN, INC.

BIO-MEDICAL APPLICATIONS OF SOUTH CAROLINA, INC.

BIO-MEDICAL APPLICATIONS OF SOUTH QUEENS, INC.

BIO-MEDICAL APPLICATIONS OF SOUTHEAST WASHINGTON, INC.

BIO-MEDICAL APPLICATIONS OF TENNESSEE, INC.

BIO-MEDICAL APPLICATIONS OF TEXAS, INC.

BIO-MEDICAL APPLICATIONS OF THE DISTRICT OF COLUMBIA, INC.

BIO-MEDICAL APPLICATIONS OF TRENTON, INC.

BIO-MEDICAL APPLICATIONS OF UKIAH, INC.

BIO-MEDICAL APPLICATIONS OF VIRGINIA, INC.

BIO-MEDICAL APPLICATIONS OF WEST VIRGINIA, INC.

BIO-MEDICAL APPLICATIONS OF WISCONSIN, INC.

BIO-MEDICAL APPLICATIONS OF WOONSOCKET, INC.

BRAZORIA KIDNEY CENTER, INC.

BREVARD COUNTY DIALYSIS, LLC

CARTERSVILLE DIALYSIS CENTER, LLC

CLAYTON COUNTY DIALYSIS, LLC

CLERMONT DIALYSIS CENTER, LLC

COBB COUNTY DIALYSIS, LLC

COLUMBUS AREA RENAL ALLIANCE, LLC

CON MED SUPPLY COMPANY, INC.

CONEJO VALLEY DIALYSIS, INC.

COVINGTON DIALYSIS CENTER, LLC

DIABETES CARE GROUP, INC.

DIALYSIS AMERICA ALABAMA, LLC

DIALYSIS AMERICA GEORGIA, LLC

DIALYSIS ASSOCIATES OF NORTHERN NEW JERSEY, L.L.C.

DIALYSIS ASSOCIATES, LLC

DIALYSIS CENTERS OF AMERICA ILLINOIS, INC.

DIALYSIS LICENSING CORP.

DIALYSIS MANAGEMENT CORPORATION

DIALYSIS SERVICES OF ATLANTA, INC.

DIALYSIS SERVICES OF CINCINNATI, INC.

DIALYSIS SERVICES, INC.

DIALYSIS SPECIALISTS OF TOPEKA, INC.

DIALYSIS SPECIALISTS OF TULSA, INC.

DOUGLAS COUNTY DIALYSIS, LLC

DOYLESTOWN ACUTE RENAL SERVICES, L.L.C.

DU PAGE DIALYSIS, LTD.




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EVEREST HEALTHCARE HOLDINGS, INC.

EVEREST HEALTHCARE INDIANA, INC.

EVEREST HEALTHCARE OHIO, INC.

EVEREST HEALTHCARE RHODE ISLAND, INC.

EVEREST HEALTHCARE TEXAS HOLDING CORP

EVEREST HEALTHCARE TEXAS, LP

EVEREST MANAGEMENT, INC.

FRESENIUS MEDICAL CARE DIALYSIS SERVICES

COLORADO LLC (F/K/A BIO MEDICAL APPLICATIONS OF COLORADO, INC.)

FRESENIUS MEDICAL CARE DIALYSIS SERVICES OREGON, LLC

FMC DIALYSIS SERVICES-OREGON, LLC (F/K/A WILLAMETTE VALLEY KIDNEY CENTER, LLC)

FMS NEW YORK, INC.

FONDREN DIALYSIS CLINIC, INC.

FORT SCOTT REGIONAL DIALYSIS CENTER, INC.

FOUR STATE REGIONAL DIALYSIS CENTER, INC.

FRESENIUS MANAGEMENT SERVICES, INC.

FRESENIUS USA HOME DIALYSIS, INC.

FRESENIUS USA MARKETING, INC.

FRESENIUS USA SALES, INC.

FRESENIUS USA, INC.

GULF REGION MOBILE DIALYSIS, INC.

HAEMO STAT, INC.

HENRY DIALYSIS CENTER, LLC

HOLTON DIALYSIS CLINIC, LLC

HOME DIALYSIS OF AMERICA, INC.

HOME DIALYSIS OF MUHLENBERG COUNTY, INC.

HOME INTENSIVE CARE, INC.

JEFFERSON COUNTY DIALYSIS, INC.

KDCO, INC.

KENTUCKY RENAL CARE GROUP, LLC

LAWTON DIALYSIS, INC.

LITTLE ROCK DIALYSIS, INC.

MAUMEE DIALYSIS SERVICES, LLC

MERCY DIALYSIS CENTER, INC.

MIAMI REGIONAL DIALYSIS CENTER, INC.

MICHIGAN HOME DIALYSIS CENTER, INC.

NAPLES DIALYSIS CENTER, LLC

NATIONAL MEDICAL CARE, INC.

NATIONAL NEPHROLOGY ASSOCIATES

MANAGEMENT COMPANY OF TEXAS, INC.

NATIONAL NEPHROLOGY ASSOCIATES OF TEXAS, L.P.




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NEOMEDICA, INC

NNA MANAGEMENT COMPANY OF KENTUCKY, INC.

NNA MANAGEMENT COMPANY OF LOUISIANA, INC.

NNA OF ALABAMA, INC.

NNA OF EAST ORANGE, L.L.C.

NNA OF FLORIDA, LLC

NNA OF GEORGIA, INC.

NNA OF HARRISON, L.L.C.

NNA OF LOUISIANA, LLC

NNA OF MEMPHIS, LLC

NNA OF NEVADA, INC.

NNA OF NEWARK, L.L.C.

NNA OF OKLAHOMA, INC.

NNA OF OKLAHOMA, L.L.C.

NNA OF RHODE ISLAND, INC.

NNA OF TOLEDO, INC.

NNA PROPERTIES OF TENNESSEE, INC.

NNA-SAINT BARNABAS LIVINGSTON, L.L.C.

NNA-SAINT BARNABAS, L.L.C.

NNA TRANSPORTATION SERVICES CORPORATION

NORCROSS DIALYSIS CENTER, LLC

NORTH BUCKNER DIALYSIS CENTER, INC.

NORTHEAST ALABAMA KIDNEY CLINIC, INC.

NORTHERN NEW JERSEY DIALYSIS, L.L.C.

NORTHWEST DIALYSIS, INC.

PHYSICIANS DIALYSIS COMPANY, INC.

PRIME MEDICAL, INC.

QUALICENTERS, INC.

RCG ARLINGTON HEIGHTS, LLC

RCG BLOOMINGTON, LLC

RCG CREDIT CORPORATION

RCG EAST TEXAS, LLP

RCG FINANCE, INC.

RCG INDIANA, L.L.C.

RCG IRVING, LLP

RCG MARION, LLC

RCG MARTIN, LLC

RCG MEMPHIS EAST, LLC

RCG MEMPHIS, LLC

RCG MISSISSIPPI, INC.

RCG PA MERGER CORP.

RCG UNIVERSITY DIVISION, INC.

RCG WEST HEALTH SUPPLY, L.C.

RCG WHITEHAVEN, LLC

RCG/SAINT LUKE’S, LLC




14









 







RCGIH, INC.

RENAL CARE GROUP ALASKA, INC.

RENAL CARE GROUP CENTRAL MEMPHIS, LLC

RENAL CARE GROUP EAST, INC.

RENAL CARE GROUP MICHIGAN, INC.

RENAL CARE GROUP NORTHWEST, INC.

RENAL CARE GROUP OF THE MIDWEST, INC.

RENAL CARE GROUP OF THE OZARKS, LLC

RENAL CARE GROUP OF THE SOUTH, INC.

RENAL CARE GROUP OF THE SOUTHEAST, INC.

RENAL CARE GROUP OHIO, INC.

RENAL CARE GROUP SOUTH NEW MEXICO, LLC

RENAL CARE GROUP SOUTHWEST HOLDINGS, INC.

RENAL CARE GROUP SOUTHWEST, L.P.

RENAL CARE GROUP TEXAS, INC.

RENAL CARE GROUP TEXAS, LP

RENAL CARE GROUP WESTLAKE, LLC

RENAL CARE GROUP, INC.

RENAL SCIENTIFIC SERVICES, INC.

RENALNET ARIZONA, INC.

RENALNET, INC.

RENALPARTNERS OF INDIANA, LLC

RENALPARTNERS, INC.

RENEX CORP.

RENEX DIALYSIS CLINIC OF AMESBURY, INC.

RENEX DIALYSIS CLINIC OF BLOOMFIELD, INC.

RENEX DIALYSIS CLINIC OF BRIDGETON, INC.

RENEX DIALYSIS CLINIC OF CREVE COEUR, INC.

RENEX DIALYSIS CLINIC OF DOYLESTOWN, INC.

RENEX DIALYSIS CLINIC OF MAPLEWOOD, INC.

RENEX DIALYSIS CLINIC OF NORTH ANDOVER, INC.

RENEX DIALYSIS CLINIC OF ORANGE, INC.

RENEX DIALYSIS CLINIC OF PENN HILLS, INC.

RENEX DIALYSIS CLINIC OF PHILADELPHIA, INC.

RENEX DIALYSIS CLINIC OF PITTSBURGH, INC.

RENEX DIALYSIS CLINIC OF SHALER, INC.

RENEX DIALYSIS CLINIC OF SOUTH GEORGIA, INC.

RENEX DIALYSIS CLINIC OF ST. LOUIS, INC.

RENEX DIALYSIS CLINIC OF TAMPA, INC.

RENEX DIALYSIS CLINIC OF UNION, INC.

RENEX DIALYSIS CLINIC OF UNIVERSITY CITY, INC.

RENEX DIALYSIS CLINIC OF WOODBURY, INC.

RENEX DIALYSIS FACILITIES, INC.

RENEX DIALYSIS HOMECARE OF GREATER ST. LOUIS, INC.




15









 







RENEX MANAGEMENT SERVICES, INC.

SAN DIEGO DIALYSIS SERVICES, INC.

SANTA BARBARA COMMUNITY DIALYSIS CENTER

SMYRNA DIALYSIS CENTER, LLC

SPECTRA EAST, INC.

SPECTRA LABORATORIES, INC.

SSKG, INC.

STAT DIALYSIS CORPORATION

STONE MOUNTAIN DIALYSIS CENTER, LLC

STUTTGART DIALYSIS, LLC

TERRELL DIALYSIS CENTER, L.L.C.

THREE RIVERS DIALYSIS SERVICES, LLC

WEST PALM DIALYSIS, LLC

WHARTON DIALYSIS, INC.

WSKC DIALYSIS SERVICES, INC.




	 	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






16









 






	 	 	 	 	 	 	 
	 	 	Acknowledged and accepted:

NATIONAL MEDICAL CARE, INC. 	 
	 	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 





	 	 	 	 	 	 	 
	 	 	NMC FUNDING CORPORATION	 
	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 







The undersigned acknowledges and accepts the foregoing, and hereby gives notice to each
Transferring Affiliate that, for purposes of Section 9 of the Transferring Affiliate Letter, the
address of the undersigned is WestLB AG, New York Branch.



	 	 	 	 	 	 	 
	 	 	WestLB AG, New York Branch 

    as Agent
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






	 	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






17









 








EXHIBIT P




to




FOURTH AMENDED AND RESTATED




TRANSFER AND ADMINISTRATION AGREEMENT




FORM OF PARENT AGREEMENT





 











 





EXECUTION COPY




AMENDED AND RESTATED PARENT AGREEMENT




          This AMENDED AND RESTATED PARENT AGREEMENT (this “Agreement”), dated as of October 16, 2008,
made by FRESENIUS MEDICAL CARE HOLDINGS, INC., a New York corporation (“FMCH”), and FRESENIUS
MEDICAL CARE AG & CO. KGaA, formerly known as Fresenius Medical Care AG, a partnership limited by
shares organized and existing under the laws of the Federal Republic of Germany, and its successors
and permitted assigns (“FME KGaA”) (FMCH and FME KGaA being hereinafter referred to, collectively,
as the “Companies” and, each individually, as a “Company”), in favor of NMC FUNDING CORPORATION
(“NMC Funding”) and WESTLB AG, NEW YORK BRANCH, as agent (the “Agent”) for the Investors under (as
defined in) the Transfer and Administration Agreement referred to below.




PRELIMINARY STATEMENTS:




          (1) National Medical Care, Inc., a Delaware corporation (“NMC”) has entered into that certain
Amended and Restated Transferring Affiliate Letter (as the same may from time to time be amended,
restated, supplemented or otherwise modified, the “Transferring Affiliate Letter”) dated as of even
date herewith with each of the “Transferring Affiliates” named therein, under which each such
Transferring Affiliate has agreed to sell and assign on each day hereafter all of its right, title
and interest in and to each “Receivable” and all “Related Security” (each as defined therein) to
NMC in accordance with the terms thereof.




          (2) NMC has entered into that certain Receivables Purchase Agreement (as the same may from
time to time be amended, restated, supplemented or otherwise modified, the “BMA Transfer
Agreement”) dated as of August 28, 1997 with Bio-Medical Management Company, Inc., a Delaware
corporation (“BMA”), under which BMA has agreed to sell and assign on the date hereof all of its
right, title and interest in and to each “Receivable” and all “Related Security” (each as defined
therein) to NMC in accordance with the terms thereof.




          (3) NMC has entered into that certain Amended and Restated Receivables Purchase Agreement
(as the same may from time to time be amended, restated, supplemented or otherwise modified, the
“Receivables Agreement”) dated as of even date herewith with NMC Funding, under which NMC has
agreed to sell and assign on each day hereafter all of its right, title and interest in and to each
“Receivable” and all “Related Security” (each as defined therein), including, without limitation,
all Receivables and Related Security acquired by NMC from the Transferring Affiliates under the
Transferring Affiliate Letter and from BMA under the BMA Transfer Agreement, to NMC Funding in
accordance with the terms thereof.




          (4) NMC Funding has entered into that certain Fourth Amended and Restated Transfer and
Administration Agreement (as the same may from time to time be amended, restated, supplemented or
otherwise modified, the “TAA”) dated as of even date herewith with NMC Funding, as “Transferor”,
NMC, as the “Collection Agent” thereunder, certain “Bank Investors” from time to time party thereto
and the Agent, under which NMC Funding shall from time to time sell and assign undivided percentage
ownership interests in all “Receivables” and “Related Security” (each as defined therein),
including, without limitation, in all Receivables and



 









 






Related Security acquired by NMC Funding from NMC under the Receivables Agreement, to the
Agent for the benefit of the Investors in accordance with the terms thereof. For purposes of this
Agreement, the terms “Agent”, “Administrative Agent”, “Conduit Investor” and “Investor” shall have
the meanings assigned to such terms under the TAA.




          (5) Certain Affiliates (each, a “Designated Account Agent”) of the Transferring Affiliates
have entered, or may hereafter enter, into that certain Account Agent Agreement dated as of August
28, 1997 or an agreement in substantially the form of such Account Agent Agreement (collectively,
and as the same may from time to time be amended, restated, supplemented or otherwise modified,
the “Account Agent Agreement”), under which such Designated Account Agents agree to certain matters
relating to the handling of Collections on Receivables originated by Transferring Affiliates and
remitted to “Special Accounts” maintained by such Designated Account Agents.




          (6) FME KGaA owns all of the issued and outstanding common stock of FMCH, and FME KGaA or one
of its wholly-owned Subsidiaries owns, directly or indirectly, all of the issued and outstanding
shares of capital stock of each Transferring Affiliate, BMA, each Designated Account Agent and
NMC. It is a condition precedent to the effectiveness of each of the Receivables Agreement and the
TAA that each of FME KGaA and FMCH enters into this Agreement.




          (7) NMC, the Transferring Affiliates (as such group is from time to time comprised), BMA
and the Designated Account Agents (as such group is from time to time comprised) are herein
sometimes referred to collectively as the “Parent Group Members” or any such Person individually as
a “Parent Group Member”. The Receivables Agreement, the Transferring Affiliate Letter, the BMA
Transfer Agreement, the Account Agent Agreement and each of the other instruments, documents and
agreements executed in connection therewith are herein sometimes referred to collectively
as the “Transaction Documents”. The terms “Receivable” and “Related Security”, and
other terms that are used herein and not otherwise defined herein, shall have the meanings assigned
under the Receivables Agreement.




          (8) FMCH and FME KGaA are parties to that certain Parent Agreement dated as of August 28,
1997 (as amended prior to the date hereof, the “Existing
Parent Agreement”), which the parties
hereto desire to amend and restate in its entirety.




          NOW, THEREFORE, the parties hereby agree as follows:




          SECTION 1. Unconditional Undertaking. Each Company hereby unconditionally and
irrevocably undertakes and agrees with and for the benefit of NMC Funding, the Investors, the
Administrative Agents and the Agent to cause the due and punctual performance and observance by
each of the Parent Group Members with each of such Parent Group Member’s obligations under the
Transaction Documents, including, without limitation: (i) by NMC and its successors and assigns of
all of the terms, covenants, conditions, agreements and undertakings on the part of NMC (whether
as seller, collection agent or otherwise) to be performed or observed by it under the Receivables
Agreement or any other document delivered in connection with the Receivables Agreement, (ii) by
each Transferring Affiliate and its successors and assigns of all of the terms, covenants,
conditions, agreements and undertakings on



2









 






the part of such Transferring Affiliate to be performed and observed under the Transferring
Affiliate Letter, (iii) by BMA, and its successors and assigns of all of the terms, covenants,
conditions, agreements and undertakings on the part of BMA to be performed and observed under the
BMA Transfer Agreement, and (iv) by each Designated Account Agent and its successors and assigns
of all of the terms, covenants, conditions, agreements and undertakings on the part of such
Designated Account Agent to be performed under the Account Agent Agreement, in each case under
clauses (i), (ii), (iii) and (iv) above in accordance with the terms thereof, including, without
limitation, each indemnity and each other agreement of any Parent Group Member to pay or deposit
any money under any Transaction Document (all such terms, covenants, conditions, agreements and
undertakings on the part of the Parent Group Members to be performed or observed being,
collectively, the “Obligations”).




          In the event that any Parent Group Member shall fail to perform or observe any of the
Obligations when the same shall be required to be performed or observed under any Transaction
Document, then each Company will itself (to the fullest extent permitted by law) duly and
punctually perform or observe, or cause to be duly and punctually performed or observed, such
Obligation, and it shall not be a condition to the accrual of the obligation of any Company
hereunder to perform or observe, or cause the performance or observance of, any Obligation that NMC
Funding, any Investor, any Administrative Agent or the Agent shall have first made any request of
or demand upon or given any notice to any Company or to any Parent Group Member or their respective
successors or assigns, or have instituted any action or proceeding against any Company or any
Parent Group Member or their respective successors or assigns in respect thereof; provided that no
Company shall be required to make any payment hereunder without ten days prior notice from NMC
Funding, an Investor or the Agent.




          SECTION 2. Obligation Absolute. Each Company will perform its obligations under this
Agreement regardless of any law, rule, regulation or order now or hereafter in effect in any
jurisdiction affecting any of the terms of any Transaction Document, or the rights of NMC Funding,
any Investor, any Administrative Agent or the Agent with respect thereto. The obligations of each
Company under this Agreement are independent of the Obligations, and a separate action or actions
may be brought and prosecuted against any Company to enforce this Agreement, irrespective of
whether any action is brought against any Parent Group Member or whether any Parent Group Member
is joined in any such action or actions. The liability of each Company under this Agreement shall
be absolute and unconditional irrespective of:





     (i) any lack of validity or enforceability of any Transaction Document;




     (ii) any change in the time, manner or place of payment of, or in any other term of,
all or any of the Obligations, or any other amendment or waiver of or any consent to
departure from the Transaction Documents;




     (iii) any taking, exchange, release or non-perfection of any security interest, or any
taking, release or amendment or waiver of or consent to departure from any Related Security
or other agreement relating to all or any of the Obligations;




     (iv) any manner of application by any Parent Group Member or any subsidiary or
affiliate thereof of any Collections to all or any of the Obligations, or any manner of



3









 






collection from or disposition of any Receivable or Related Security or any
interest therein;




     (v) any change, restructuring or termination of the corporate structure or existence
of any Company or any Parent Group Member;




     (vi) any failure of any Parent Group Member or any Company to obtain any
authorization or approval from or other action by, or to notify or file with, any
governmental authority or regulatory body required in connection with this Agreement, the
Receivables Agreement or any Transaction Document;




     (vii) any impossibility or impracticality of performance, illegality, force majeure,
any act of any government, or any other circumstance which might constitute a defense
available to, or a discharge of any Parent Group Member or any Company;




     (viii) with respect to any Company, the release by NMC Funding, any Investor, any
Administrative Agent or the Agent of the other Company from any or all of its obligations
hereunder, the unenforceability of this Agreement as against such other Company or the
release of any other guarantor in respect of its obligations; or




     (ix) any other circumstance which might otherwise constitute a defense available to,
or a discharge of, any Parent Group Member or a guarantor.


This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time
any payment by any Parent Group Member under any Transaction Document is rescinded or must
otherwise be returned by NMC Funding, any Investor, any Administrative Agent or the Agent, upon
the insolvency, bankruptcy or reorganization of any Parent Group Member or otherwise, all as
though such payment had not been made. The obligations of each Company under this Agreement shall
not be subject to reduction, termination or other impairment by reason of any set-off, recoupment,
counterclaim or defense or for any other reason. The obligations of each Company under this
Agreement shall not be discharged except by performance as herein provided.




          SECTION 3. Waiver. Each Company hereby waives promptness, diligence, notice of
acceptance and any other notice with respect to any of the Obligations and this Agreement or any
Transaction Document and any requirement that NMC Funding, any Investor, any Administrative Agent
or the Agent protect, secure, perfect or insure any security interest or lien or any property
subject thereto or exhaust any right or take any action against any Company or any Parent Group
Member or any security interest.




          SECTION 4. Waiver of Subrogation and Contribution. Each Company hereby irrevocably
waives any claim or other rights that it may now or hereafter acquire against any Parent Group
Member that arise from the existence, payment, performance or enforcement of such Company’s
obligations under this Agreement, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to participate in any
claim or remedy of NMC Funding, any Investor, any Administrative Agent or the Agent against any
Parent Group Member or any security interest that NMC Funding, any Investor, any Administrative
Agent or the Agent hereafter acquires, whether or not such claim,



4









 






remedy or right arises in equity or under contract, statute or common law, including,
without limitation, the right to take or receive from any Parent Group Member, directly or
indirectly, in cash or other property or by set-off or in any other manner, payment or security in
account of such claim, remedy or right. If any amount shall be paid to any Company in violation of
the preceding sentence at any time prior to the later of (x) the payment in full of the Obligations
and all other amounts payable under this Agreement and (y) the payment in full of all “Aggregate
Unpaids” (as defined in the TAA), following the “Termination Date” (as defined in the TAA), such
amount shall be held in trust for the benefit of NMC Funding, each Investor, each Administrative
Agent and the Agent and shall forthwith be paid to the Agent to be credited and applied to the
Obligations and all other amounts payable under this Agreement, whether matured or unmatured, in
accordance with the terms of the TAA, the applicable Transaction Document and this Agreement, or to
be held by the Agent as collateral security for any Obligations or other amounts payable under this
Agreement thereafter arising. Each Company acknowledges that it will receive direct and indirect
benefits from the receivables purchase arrangements contemplated by the Transaction Documents and
that the waiver set forth in this Section 4 is knowingly made in contemplation of such benefits.




          SECTION 5. Representations and Warranties. Each Company hereby represents and
warrants as follows:





     (a) Such Company is, in the case of FMCH, a corporation duly incorporated and, in the
case of FME KGaA, an entity duly organized, in each case validly existing and in good
standing under the laws of the jurisdiction in which it is organized and existing, and is
duly qualified to do business and is in good standing in every jurisdiction where the nature
of its business requires it to be so qualified, except where the failure to be so qualified
would not have a Material Adverse Effect.




     (b) The execution, delivery and performance by such Company of this Agreement
(i) are within such Company’s corporate powers, (ii) have been duly authorized by all
necessary corporate action, and (iii) do not contravene (A) such Company’s charter or
by-laws or similar organizational documents or (B) any law, rule or regulation applicable to
such Company, or any of its subsidiaries or properties, and (iv) do not contravene or
require any consent, approval or notice under any provision of any indenture, loan
agreement or credit agreement or any other agreement, lease or instrument to which
such Company or any of its subsidiaries is a party or by which such Company or any of its
subsidiaries or properties may be bound or affected, except for any such consents and
approvals that have been obtained and notices that have been given.




     (c) No authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required for the due execution, delivery
and performance by such Company of this Agreement.




     (d) This Agreement constitutes the legal, valid and binding obligation of such Company
enforceable against such Company in accordance with its terms, except as may be limited by
the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors’ rights generally and by general principles of equity.



5









 






     (e) Except as set forth in Exhibit F to the Receivables Agreement, there is no
pending or threatened action or proceeding against or affecting such Company or its properties
before any court, governmental agency or arbitrator which would have a Material Adverse Effect.




     (f) The consolidated balance sheet of FME KGaA and its subsidiaries as at December 31, 2007,
and the related consolidated statements of income and of cash flow of FME KGaA and its subsidiaries
for the fiscal year then ended, copies of which have been furnished to the Agent, fairly present
the consolidated financial condition of FME KGaA and its subsidiaries as at such date and the
results of the operations of FME KGaA and its subsidiaries for the period ended on such date, all
in accordance with generally accepted accounting principles consistently applied, and since
December 31, 2007, no event has occurred which would have a Material Adverse Effect.




     (g) Each financial statement and financial book, record, or report or
information (collectively, “Financial Documents”) or other document, book, record or report or
information (collectively, “Other Documents”) furnished or to be furnished in writing at any time
by such Company to NMC Funding, any Investor or the Agent, in connection with this Agreement is or
will be (i) in the case of each such Financial Document, prepared in accordance with
generally accepted accounting principles consistently applied, except as stated therein and
subject in the case of any quarterly financial statement to year-end audit adjustments and to the
abbreviation of any such financial statement and incompleteness of the footnotes contained therein,
or (ii) in the case of such Other Documents, accurate in all material respects, in each case, as of
its date or (except as otherwise disclosed to NMC Funding, the Investors or the Agent, as the case
may be, at such time) as of the date so furnished, and no such Financial Document or Other
Document, to the best of such Company’s knowledge, contains or will contain any untrue statement of
a material fact or omits or will omit to state a material fact necessary in order to make the
statements contained therein, in the light of the circumstances under which they were made, not
misleading.




     (h) All of the issued and outstanding common stock of (such stock being more than 80% of all
voting stock of) FMCH is and will continue to be owned directly or indirectly by FME KGaA.




     (i) There are no conditions precedent to the effectiveness of this Agreement that have not
been satisfied or waived.




     (j) No Termination Event or Potential Termination Event (each as defined in the TAA) has
occurred and is continuing.




     (k) The execution, delivery and performance by each Parent Group Member of each Transaction
Document to which it is named as a party and the transactions contemplated thereby do not
contravene any provision of any indenture, loan agreement, credit agreement, or other agreement,
lease or instrument to which any Company is a party or by which such Company or its properties may
be bound or affected.



6









 






     (1) Each representation and warranty from time to time made or deemed made by
any Parent Group Member under or in connection with any Transaction Document with respect to
such Company or any Parent Group Member shall be true and correct in all material respects.



          SECTION 6. Covenants. (a) Each Company covenants and agrees that, as long as any
Aggregate Unpaids shall be outstanding under the TAA, it will, unless the Agent and each
Administrative Agent shall otherwise consent in writing:





     (i) Compliance with Laws, Etc. Comply with the applicable laws, rules,
regulations and orders with respect to it, its business and properties other than such
provisions noncompliance with which would not have a Material Adverse Effect.




     (ii) Preservation of Corporate Existence. Preserve and maintain its corporate
existence, rights, franchises and privileges in the jurisdiction of its incorporation, and
qualify and remain qualified in good standing as a foreign corporation in each jurisdiction
where the failure to preserve and maintain such existence, rights, franchises, privileges
and qualification would have a Material Adverse Effect.




     (iii) Maintenance of Ownership. FME KGaA will maintain ownership, directly or
indirectly, free and clear of any Adverse Claim, (other than a pledge made pursuant to the
FME KGaA Credit Facility and put/call agreements, forward agreements or other similar
arrangements among FME KGaA and its subsidiaries), of 100% of the common stock of, and more
than 80% of the outstanding voting stock of, FMCH and FMCH will maintain ownership,
directly or indirectly, of all of the outstanding shares of stock of each Parent Group
Member; provided that FME KGaA may own directly or indirectly stock that is not Voting
Stock in subsidiaries of FMCH.




     (iv) Reporting Requirements. Furnish to the Agent and each Administrative
Agent:




     (A) As soon as available, but in the event within 95 days after the end of each
fiscal year of such Company, audited consolidated balance sheets of such Company and
its Subsidiaries as of the end of such fiscal year and the related audited
consolidated statements of income, retained earnings, shareholders’ equity and cash
flows for such fiscal year, in each case audited by KPMG Peat Marwick LLP, KPMG
Deutsche Treuhand Gesellschaft or other firm of independent certified public
accountants of nationally recognized standing reasonably acceptable to the
Agent and each Administrative Agent, setting forth in each case in comparative form
the figures for the previous year, reported on without a “going concern” or like
qualification or exception, or qualification indicating that the scope of the audit
was inadequate to permit such independent certified public accountants to certify
such financial statements without such qualification;




     (B) As soon as available and in any event within 50 days after the end of each
of the first three fiscal quarters of such Company, (1) in the case of FMCH, a
company-prepared consolidated balance sheet of such Company and its



7









 






Subsidiaries as of the end of such quarter and the related company-prepared
consolidated statements of income and retained earnings for such quarterly period and cash
flows for the fiscal year to date and (2) in the case of FME KGaA, company-prepared
consolidated balance sheet of FME KGaA and its Subsidiaries as of the end of the quarter
and the related company-prepared consolidated statements of income and retained earnings
for such quarterly period setting forth in each case in comparative form the figures for
the previous year for such period;




in each case setting forth in comparative form the consolidated (and consolidating, if
applicable) figures for the corresponding period or periods of the preceding fiscal year
or the portion of the fiscal year ending with such period, as applicable (but not for any
period prior to September 27, 1996), in each case subject to normal recurring year-end
audit adjustments. All such financial statements shall be complete and correct in all
material respects (subject, in the case of interim statements, to normal recurring
year-end audit adjustments) and to be prepared in reasonable detail and, in the case of
the annual and quarterly financial statements provided in accordance with subsections (a)
and (b) above, in accordance with GAAP applied consistently throughout the periods
reflected therein (except as approved by such accountants and disclosed therein);




     (C) Promptly upon the furnishing thereof to the shareholders of such Company, copies
of all financial statements, reports and proxy statements so furnished;




     (D) Promptly upon the filing thereof, copies of all registration
statements and annual , quarterly, monthly or other regular reports which such Company or
any Subsidiary files with the Securities and Exchange Commission;




     (E) Within five (5) Business Days after the date of any change in its public or
private debt ratings, if any, a written certification of its public and private debt
ratings after giving effect to such change; and




     (F) such other information respecting the conditions or operations, financial or
otherwise, of such Company or any of its subsidiaries as the Agent or any Administrative
Agent may from time to time reasonably request.




(v) Financial Covenants. Ensure that:




(A) Consolidated Leverage Ratio. As of the end of each fiscal quarter, the
Consolidated Leverage Ratio will not exceed:



8









 





	 	 	 
	 	 	Maximum
	 	 	Consolidated
	Fiscal Quarters Ending	 	Leverage Ratio
	 
	December 31, 2007 and December 30, 2008
	 	4.00:1.00
	December 31, 2008 and December 30, 2009
	 	3.50:1.00
	December 31, 2009 and thereafter
	 	3.00:1.00







(B) Consolidated Fixed Charge Coverage Ratio. As of the end of each fiscal
quarter, the Consolidated Fixed Charge Coverage Ratio will not be less than
1.20:1.00.




For purposes of this Section 6(a)(v), the terms “Consolidated Leverage Ratio,” and
“Consolidated Fixed Charge Coverage Ratio” shall have the meanings specified in the
FME KGaA Credit Facility (as defined in the TAA) as in effect on the initial
effective date thereof, but without giving effect to any amendment, waiver,
termination, renewal, refunding, replacement, refinancing or other modification to
the FME KGaA Credit Facility made after such effective date.”



          (b) Each Company acknowledges that the Investors, the Administrative Agents and the Agent are
entering into the transactions contemplated by the TAA in reliance upon the identity of NMC
Funding as a separate legal entity from each Parent Group Member, the Companies and their other
subsidiaries and affiliates (collectively, excluding NMC Funding, the “Parent Group”). Each
Company shall, and shall cause the Parent Group to, refrain from taking any action that would
suggest to any creditor of any entity within the Parent Group that NMC Funding and such entity
within the Parent Group are anything other than separate legal entities. Neither Company shall
hold out any entity within the Parent Group to third parties as liable for the debts of NMC
Funding, and neither Company shall at any time represent to any Person that any entity within the
Parent Group owns any interest in the Receivables or any of the other assets intended to have been
acquired by NMC Funding under the Receivables Agreement.




          SECTION 7. Amendments, Etc. No amendment or waiver of any provision of this Agreement,
and no consent to any departure by any Company herefrom, shall in any event be effective unless the
same shall be in writing and signed by NMC Funding, the Agent, each Administrative Agent and each
Company (or, in the case of waiver, by the party or parties waiving any such provision) and then
such amendment, waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.




          SECTION 8. Addresses for Notices. All notices and other communications provided for
hereunder shall be in writing (including telecopier, telegraphic or cable communication) and
mailed, telecopied, telegraphed, cabled or delivered to it, if to (i) FME KGaA, at its address at
Else-Kröner-Strasse 1, 61352 Bad Homburg v.d.H., Germany, Attention: Dr. Rainer Runte, (ii) FMCH,
at its address at 920 Winter Street, Waltham, Massachussetts 02451, Attention: Mark Fawcett, (iii)
NMC Funding, at its address at 920 Winter Street, Waltham, Massachusetts 02451 and (iv) if to the
Agent, at its address specified in the TAA or, as to any party, at such other address as shall be
designated by such party in a written notice to each



9









 






other party. All such notices and other communications shall, when mailed, telecopied,
telegraphed or cabled, be effective when deposited in the mails, telecopied, delivered to the
telegraph company or delivered to the cable company, respectively.




          SECTION 9. No Waiver, Remedies. No failure on the part of NMC Funding, any Investor
or the Agent to exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other
or further exercise thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.




          SECTION 10. Continuing Agreement; Assignments under Agreement. This Agreement is a
continuing agreement and shall (i) remain in full force an effect until the later of the
Termination Date under the TAA and the date on which no Aggregate Unpaids thereunder shall be
outstanding and no amount owed by NMC under the Receivables Agreement shall remain unpaid, (ii) be
binding upon each Company and its successors and assigns and (iii) inure to the benefit of, and be
enforceable by each of NMC Funding, each Investor and the Agent and their respective successors,
transferees and assigns. Without limiting the generality of the foregoing clause (iii), any
Investor, any Administrative Agent or the Agent may assign any of its rights under this Agreement
to any assignee, and such assignee shall thereupon become vested with all the benefits in respect
thereof granted to such Investor or the Agent, as applicable, herein or otherwise.




          SECTION 11. Joint and Several Liability. The liabilities and obligations of the
Companies under this Agreement shall be joint and several.




          SECTION 12. Taxes. (a) Any and all payments by any of the Companies hereunder shall
be made free and clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect thereto,
excluding taxes imposed on net income and all income and franchise taxes of the United
States and any political subdivisions thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholding and liabilities being hereinafter referred to as “Taxes”). If any
of the Companies shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder, (i) the sum payable shall be increased as may be necessary so that after making
all required deductions (including deductions applicable to additional sums payable under this
Section 12) NMC Funding, any affected Investor and the Agent receives an amount equal to the sum
it would have received had no such deductions been made, (ii) such Company shall make such
deductions and (iii) such Company shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.




          (b) In addition, each Company agrees to pay any present or future stamp or documentary taxes
or any other excise or property taxes, charges or similar levies which arise from any payment made
hereunder or from the execution, delivery or registration of, or otherwise with respect to, this
Agreement (hereinafter referred to as “Other Taxes”).




          (c) Each Company will indemnify NMC Funding, any affected Investor, any affected
Administrative Agent and the Agent, for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction or amounts





10












 




payable under this Section 12) paid by NMC Funding, any affected Investor, any affected
Administrative Agent and the Agent or any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto.




          SECTION 13. Judgment. (a) If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder in lawful money of the United States (“Dollars”) into
another currency, the parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal banking procedures
that the Agent would purchase Dollars with such other currency in New York, New York on the
Business Day preceding that on which final judgment is given.




          (b) The obligation of each Company in respect of any sum due from it to NMC Funding, any Investor, any Administrative Agent or the Agent hereunder
shall, notwithstanding any judgment in a currency other than Dollars, be discharged only to the
extent that on the Business Day following receipt by NMC Funding, such Investor, such Administrative Agent or the Agent, as applicable, of any sum adjudged to be so due in such other currency
such Person may in accordance with normal banking procedures purchase Dollars with such other
currency; if the Dollars so purchased are less than the sum originally due to such Person in
Dollars, such Company agrees, as a separate obligation and notwithstanding any such judgment,
to indemnify such Person against such loss, and if the Dollars so purchased exceed the sum
originally due to such Person in Dollars, such Person agrees to remit to such Company such
excess.




          (c) To the extent that any Company has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise)
with respect it or its property, such Company hereby irrevocably waives such immunity in
respect of its obligations under this Agreement and, without limiting the generality of the
foregoing, each Company agrees that the waivers set forth in this Agreement shall have the fullest scope permitted under the Foreign Sovereign Immunities Act of 1976 of the United
States and are intended to be irrevocable for purposes of such Act.




          SECTION 14. Consent to Jurisdiction. (a) Each Company hereby irrevocably submits to
the jurisdiction of any New York State or Federal court sitting in New York City and any appellate
court from any thereof in any action or proceeding arising out of or relating to this Agreement,
and each Company hereby irrevocably agrees that all claims in respect of such action or proceeding
may be heard and determined in such New York State court or in such Federal court. Each Company
hereby irrevocably waives, to the fullest extent it may effectively do so, the defense of an
inconvenient forum to the maintenance of such action or proceeding. Each Company hereby
irrevocably appoints Arent Fox LLP, located at 1675 Broadway, New York, New York 10019 (the
“Process Agent”), as its agent to receive on behalf of such Company and its property service of
copies of the summons and compliant and any other process which may be served in any such action
or proceeding. Such service may be made by mailing or delivering a copy of such process to each
Company in care of the Process Agent at the Process Agent’s above address, and each Company hereby
irrevocably authorizes and directs the Process Agent to accept such service on its behalf. As an
alternative method of service, each Company also irrevocably consents to the services of any and
all process in any such action or proceeding




11









 







by the mailing of copies of such process to such Company at its address specified in Section 8.
Each Company agrees that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by
law, to the extent permitted by law.




          (b) Nothing in this Section 14 shall affect the right of NMC Funding, any Investor or the
Agent, to serve legal process in any other manner permitted by law or affect the right of NMC
Funding, any Investor or the Agent, to bring any action or proceeding against any Company or its
property in the courts of other jurisdictions.




          SECTION 15. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.




          SECTION 16. Covenant not to Institute Bankruptcy Proceedings. Each Company agrees
that, so long as any commercial paper notes or other indebtedness issued by a Conduit Investor
shall be outstanding or there shall not have elapsed one year plus one day since the last day on
which any such commercial paper shall have been outstanding, it will not institute against a
Conduit Investor any proceeding seeking to adjudicate a Conduit Investor a bankrupt or insolvent,
or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief,
or composition of a Conduit Investor or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, or other similar official for it or for any substantial part
of its property.




          SECTION 17. Execution in Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together shall constitute
one and the same agreement.




          SECTION 18. Amendment and Restatement. This Agreement amends and restates the
Existing Parent Agreement in its entirety. This Agreement is not intended to constitute a novation
of the Existing Parent Agreement. Upon the effectiveness of this Agreement (the “Effective Date”),
each reference to the Existing Parent Agreement in any other document, instrument or agreement
executed and/or delivered in connection therewith shall mean and be a reference to this Agreement.




[Remainder of Page Intentionally Left Blank]




12









 








          IN WITNESS WHEREOF, each Company has caused this Agreement to be duly executed and delivered
by its officer thereunto duly authorized as of the date first above written.




	 	 	 	 	 
	 	FRESENIUS MEDICAL CARE AG & Co. KGaA

By Fresenius Medical Care

Management AG (General Partner)

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	FRESENIUS MEDICAL CARE
HOLDINGS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Accepted and Agreed as of

the date first above written:




NMC FUNDING CORPORATION




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	WESTLB AG, NEW YORK BRANCH,	 	 
	  as Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 






Signature Page to the Amended and Restated

Parent Agreement dated as of October 16, 2008




 









 








EXHIBIT Q

to

FOURTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT




LIST OF TRANSFERRING AFFILIATES




	 	 	 
	Chief Executive Office for each 

Transferring Affiliate:

	 	920 Winter Street

Waltham, Massachusetts 02451-1457






	 	 	 
	Original Transferring Affiliates	 	State of Incorporation
	(before October 19, 2006)	 	 
	Bio-Medical Applications Home Dialysis Services, Inc.

	 	Delaware
	Bio-Medical Applications Management Company, Inc

	 	Delaware
	Bio-Medical Applications of Alabama, Inc.

	 	Delaware
	Bio-Medical Applications of Anacostia, Inc.

	 	Delaware
	Bio-Medical Applications of Aquadilla, Inc.

	 	Delaware
	Bio-Medical Applications of Arecibo, Inc.

	 	Delaware
	Bio-Medical Applications of Arkansas, Inc.

	 	Delaware
	Bio-Medical Applications of Bayamon, Inc.

	 	Delaware
	Bio-Medical Applications of Blue Springs, Inc

	 	Delaware
	Bio-Medical Applications of Caguas, Inc.

	 	Delaware
	Bio-Medical Applications of California, Inc.

	 	Delaware
	Bio-Medical Applications of Camarillo, Inc.

	 	Delaware
	Bio-Medical Applications of Capitol Hill, Inc.

	 	Delaware
	Bio-Medical Applications of Carolina, Inc.

	 	Delaware
	Bio-Medical Applications of Carson, Inc.

	 	Delaware
	Bio-Medical Applications of Clinton, Inc.

	 	Delaware
	Bio-Medical Applications of Columbia Heights, Inc.

	 	Delaware
	Bio-Medical Applications of Connecticut, Inc.

	 	Delaware
	Bio-Medical Applications of Delaware, Inc.

	 	Delaware
	Bio-Medical Applications of Dover, Inc.

	 	Delaware
	Bio-Medical Applications of Eureka, Inc.

	 	Delaware
	Bio-Medical Applications of Fayetteville, Inc.

	 	Delaware
	Bio-Medical Applications of Florida, Inc.

	 	Delaware
	Bio-Medical Applications of Fremont, Inc.

	 	Delaware
	Bio-Medical Applications of Fresno, Inc.

	 	Delaware
	Bio-Medical Applications of Georgia, Inc.

	 	Delaware
	Bio-Medical Applications of Glendora, Inc.

	 	Delaware
	Bio-Medical Applications of Guayama, Inc.

	 	Delaware






 









 






	 	 	 
	Original Transferring Affiliates	 	State of Incorporation
	(before October 19, 2006)	 	 
	Bio-Medical Applications of Hoboken, Inc.

	 	Delaware
	Bio-Medical Applications of Humacao, Inc.

	 	Delaware
	Bio-Medical Applications of Illinois, Inc.

	 	Delaware
	Bio-Medical Applications of Indiana, Inc.

	 	Delaware
	Bio-Medical Applications of Kansas, Inc.

	 	Delaware
	Bio-Medical Applications of Kentucky, Inc.

	 	Delaware
	Bio-Medical Applications of Las Americas, Inc.

	 	Delaware
	Bio-Medical Applications of Long Beach, Inc.

	 	Delaware
	Bio-Medical Applications of Los Gatos, Inc.

	 	Delaware
	Bio-Medical Applications of Louisiana, LLC

	 	Delaware
	Bio-Medical Applications of Maine, Inc.

	 	Delaware
	Bio-Medical Applications of Manchester, Inc.

	 	Delaware
	Bio-Medical Applications of Maryland, Inc.

	 	Delaware
	Bio-Medical Applications of Massachusetts, Inc.

	 	Delaware
	Bio-Medical Applications of Mayaguez, Inc.

	 	Delaware
	Bio-Medical Applications of Michigan, Inc.

	 	Delaware
	Bio-Medical Applications of Minnesota, Inc.

	 	Delaware
	Bio-Medical Applications of Mission Hills, Inc.

	 	Delaware
	Bio-Medical Applications of Mississippi, Inc.

	 	Delaware
	Bio-Medical Applications of Missouri, Inc.

	 	Delaware
	Bio-Medical Applications of MLK, Inc.

	 	Delaware
	Bio-Medical Applications of Nevada, Inc

	 	Nevada
	Bio-Medical Applications of New Hampshire, Inc.

	 	Delaware
	Bio-Medical Applications of New Jersey, Inc.

	 	Delaware
	Bio-Medical Applications of New Mexico, Inc.

	 	Delaware
	Bio-Medical Applications of North Carolina, Inc.

	 	Delaware
	Bio-Medical Applications of Northeast, D.C., Inc.

	 	Delaware
	Bio-Medical Applications of Oakland, Inc.

	 	Delaware
	Bio-Medical Applications of Ohio, Inc.

	 	Delaware
	Bio-Medical Applications of Oklahoma, Inc.

	 	Delaware
	Bio-Medical Applications of Pennsylvania, Inc.

	 	Delaware
	Bio-Medical Applications of Ponce, Inc.

	 	Delaware
	Bio-Medical Applications of Puerto Rico, Inc.

	 	Delaware
	Bio-Medical Applications of Rhode Island, Inc.

	 	Delaware
	Bio-Medical Applications of Rio Piedras, Inc.

	 	Delaware
	Bio-Medical Applications of San Antonio, Inc.

	 	Delaware
	Bio-Medical Applications of San German, Inc.

	 	Delaware
	Bio-Medical Applications of San Juan, 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






 









 






	 	 	 
	Original Transferring Affiliates	 	State of Incorporation
	(before October 19, 2006)	 	 
	Bio-Medical Applications of The District of Columbia, Inc.

	 	Delaware
	Bio-Medical Applications of Ukiah, Inc.

	 	Delaware
	Bio-Medical Applications of Virginia, Inc.

	 	Delaware
	Bio-Medical Applications of West Virginia, Inc.

	 	Delaware
	Bio-Medical Applications of Wisconsin, Inc.

	 	Delaware
	Bio-Medical Applications of Woonsocket, Inc.

	 	Delaware
	Dialysis America Alabama, LLC

	 	Delaware
	Dialysis America Georgia, LLC

	 	Delaware
	Dialysis Associates of Northern New Jersey, L.L.C.

	 	New Jersey
	Everest Healthcare Holdings, Inc.

	 	Delaware
	Everest Healthcare Indiana, Inc.

	 	Indiana
	Everest Healthcare Rhode Island, Inc.

	 	Delaware
	Everest Healthcare Texas Holding Corp

	 	Delaware
	Everest Healthcare Texas, LP

	 	Delaware
	Everest Management, Inc.

	 	Delaware
	Fresenius Medical Care Dialysis Services Colorado LLC

	 	Delaware
	Fresenius Medical Care Dialysis Services-Oregon, LLC

	 	Oregon
	FMS New York, Inc.

	 	Delaware
	Fresenius Management Services, Inc.

	 	Delaware
	Fresenius USA Home Dialysis, Inc.

	 	Delaware
	Fresenius USA Marketing, Inc.

	 	Delaware
	Fresenius USA, Inc.

	 	Massachusetts
	Gulf Region Mobile Dialysis, Inc.

	 	Delaware
	Home Dialysis of America, Inc.

	 	Arizona
	Home Dialysis of Muhlenberg County, Inc.

	 	Kentucky
	Home Intensive Care, Inc.

	 	Delaware
	Mercy Dialysis Center, Inc.

	 	Wisconsin
	National Medical Care, Inc.

	 	Delaware
	Neomedica, Inc

	 	Delaware
	North Buckner Dialysis Center, Inc.

	 	Delaware
	Northern New Jersey Dialysis, L.L.C.

	 	Delaware
	Qualicenters, Inc.

	 	Colorado
	San Diego Dialysis Services, Inc.

	 	Delaware
	Spectra East, Inc.

	 	Delaware
	Spectra Laboratories, Inc.

	 	Nevada
	Terrell Dialysis Center, L.L.C.

	 	Delaware
	Conejo Valley Dialysis, Inc.

	 	California
	Dialysis Services of Cincinnati, Inc.

	 	Ohio
	Dialysis Services, Inc.

	 	Texas
	Dialysis Specialists of Topeka, Inc.

	 	Kansas
	Dialysis Specialists of Tulsa, Inc.

	 	Oklahoma
	Everest Healthcare Ohio, Inc.

	 	Ohio






 









 






	 	 	 
	Original Transferring Affiliates	 	State of Incorporation
	(before October 19, 2006)	 	 
	Fresenius USA Sales, Inc.

	 	Massachusetts
	Haemo-Stat, Inc.

	 	California
	Santa Barbara Community Dialysis Center, Inc.

	 	California
	Con-Med Supply Company, Inc.

	 	Illinois
	WSKC Dialysis Services, Inc.

	 	Illinois
	Du Page Dialysis, Ltd.

	 	Illinois






	 	 	 
	Additional Transferring Affiliates	 	State of Incorporation
	(added October 19, 2006)	 	 
	Angleton Dialysis, Inc.

	 	Texas
	Arizona Renal Investments, LLC

	 	Delaware
	Brazoria Kidney Center, Inc.

	 	Texas
	Brevard County Dialysis, LLC

	 	Florida
	Cartersville Dialysis Center, LLC

	 	Georgia
	Clayton County Dialysis, LLC

	 	Georgia
	Clermont Dialysis Center, LLC

	 	Georgia
	Cobb County Dialysis, LLC

	 	Georgia
	Columbus Area Renal Alliance, LLC

	 	Delaware
	Covington Dialysis Center, LLC

	 	Georgia
	Diabetes Care Group, Inc.

	 	Delaware
	Dialysis Associates, LLC

	 	Tennessee
	Dialysis Centers of America — Illinois, Inc.

	 	Illinois
	Dialysis Licensing Corp.

	 	Delaware
	Dialysis Management Corporation

	 	Texas
	Dialysis Services of Atlanta, Inc.

	 	Georgia
	Douglas County Dialysis, LLC

	 	Georgia
	Doylestown Acute Renal Services, L.L.C.

	 	Pennsylvania
	Fondren Dialysis Clinic, Inc.

	 	Texas
	Fort Scott Regional Dialysis Center, Inc.

	 	Missouri
	Four State Regional Dialysis Center, Inc.

	 	Missouri
	Henry Dialysis Center, LLC

	 	Georgia
	Holton Dialysis Clinic, LLC

	 	Georgia
	Jefferson County Dialysis, Inc.

	 	Arkansas
	KDCO, Inc.

	 	Missouri
	Kentucky Renal Care Group, LLC

	 	Delaware
	Lawton Dialysis, Inc.

	 	Arkansas
	Little Rock Dialysis, Inc.

	 	Arkansas
	Maumee Dialysis Services, LLC

	 	Delaware
	Miami Regional Dialysis Center, Inc.

	 	Missouri
	Michigan Home Dialysis Center, Inc.

	 	Michigan






 









 






	 	 	 
	Additional Transferring Affiliates	 	State of Incorporation
	(added October 19, 2006)	 	 
	Naples Dialysis Center, LLC

	 	Florida
	National Nephrology Associates Management
Company of Texas, Inc.

	 	Texas
	National Nephrology Associates of Texas, L.P.

	 	Texas
	NNA Management Company of Kentucky, Inc.

	 	Kentucky
	NNA Management Company of Louisiana, Inc.

	 	Louisiana
	NNA of Alabama, Inc.

	 	Alabama
	NNA of East Orange, L.L.C.

	 	New Jersey
	NNA of Florida, LLC

	 	Florida
	NNA of Georgia, Inc.

	 	Delaware
	NNA of Harrison, L.L.C.

	 	New Jersey
	NNA of Louisiana, LLC

	 	Louisiana
	NNA of Memphis, LLC

	 	Tennessee
	NNA of Nevada, Inc.

	 	Nevada
	NNA of Newark, L.L.C.

	 	New Jersey
	NNA of Oklahoma, Inc.

	 	Nevada
	NNA of Oklahoma, L.L.C.

	 	Oklahoma
	NNA of Rhode Island, Inc.

	 	Rhode Island
	NNA of Toledo, Inc.

	 	Ohio
	NNA Properties of Tennessee, Inc.

	 	Tennessee
	NNA Transportation Services Corporation

	 	Tennessee
	NNA-Saint Barnabas, L.L.C.

	 	New Jersey
	NNA-Saint Barnabas-Livingston, L.L.C.

	 	New Jersey
	Norcross Dialysis Center, LLC

	 	Georgia
	Northeast Alabama Kidney Clinic, Inc.

	 	Alabama
	Northwest Dialysis, Inc.

	 	Arkansas
	Physicians Dialysis Company, Inc.

	 	Pennsylvania
	RCG Arlington Heights, LLC

	 	Delaware
	RCG Bloomington, LLC

	 	Delaware
	RCG Credit Corporation

	 	Tennessee
	RCG East Texas, LLP

	 	Delaware
	RCG Finance, Inc.

	 	Delaware
	RCG Indiana, L.L.C.

	 	Delaware
	RCG Irving, LLP

	 	Delaware
	RCG Marion, LLC

	 	Delaware
	RCG Martin, LLC

	 	Delaware
	RCG Memphis East, LLC

	 	Delaware
	RCG Memphis, LLC

	 	Delaware
	RCG Mississippi, Inc.

	 	Delaware
	RCG PA Merger Corp.

	 	Texas
	RCG University Division, Inc.

	 	Tennessee
	RCG West Health Supply, L.C.

	 	Arizona






 









 






	 	 	 
	Additional Transferring Affiliates	 	State of Incorporation
	(added October 19, 2006)	 	 
	RCG Whitehaven, LLC

	 	Delaware
	RCG/Saint Luke’s, LLC

	 	Delaware
	RCGIH, Inc.

	 	Delaware
	Renal Care Group Alaska, Inc.

	 	Alaska
	Renal Care Group Central Memphis, LLC

	 	Delaware
	Renal Care Group East, Inc.

	 	Pennsylvania
	Renal Care Group Michigan, Inc.

	 	Delaware
	Renal Care Group Northwest, Inc.

	 	Delaware
	Renal Care Group of the Midwest, Inc.

	 	Kansas
	Renal Care Group of the Ozarks, LLC

	 	Delaware
	Renal Care Group of the South, Inc.

	 	Delaware
	Renal Care Group of the Southeast, Inc.

	 	Florida
	Renal Care Group Ohio, Inc.

	 	Delaware
	Renal Care Group South New Mexico, LLC

	 	Delaware
	Renal Care Group Southwest Holdings, Inc.

	 	Delaware
	Renal Care Group Southwest, L.P.

	 	Delaware
	Renal Care Group Texas, Inc.

	 	Texas
	Renal Care Group Texas, LP

	 	Delaware
	Renal Care Group Westlake, LLC

	 	Delaware
	Renal Care Group, Inc.

	 	Delaware
	RenalNet Arizona, Inc.

	 	Arizona
	RenalNet, Inc.

	 	Delaware
	RenalPartners of Indiana, LLC

	 	Indiana
	RenalPartners, Inc.

	 	Delaware
	Renex Corp.

	 	Florida
	Renex Dialysis Clinic of Amesbury, Inc.

	 	Massachusetts
	Renex Dialysis Clinic of Bloomfield, Inc.

	 	New Jersey
	Renex Dialysis Clinic of Bridgeton, Inc.

	 	Missouri
	Renex Dialysis Clinic of Creve Coeur, Inc.

	 	Missouri
	Renex Dialysis Clinic of Doylestown, Inc.

	 	Pennsylvania
	Renex Dialysis Clinic of Maplewood, Inc.

	 	Missouri
	Renex Dialysis Clinic of North Andover, Inc.

	 	Massachusetts
	Renex Dialysis Clinic of Orange, Inc.

	 	New Jersey
	Renex Dialysis Clinic of Penn Hills, Inc.

	 	Pennsylvania
	Renex Dialysis Clinic of Philadelphia, Inc.

	 	Pennsylvania
	Renex Dialysis Clinic of Pittsburgh, Inc.

	 	Pennsylvania
	Renex Dialysis Clinic of Shaler, Inc.

	 	Pennsylvania
	Renex Dialysis Clinic of South Georgia, Inc.

	 	Georgia
	Renex Dialysis Clinic of St. Louis, Inc.

	 	Missouri
	Renex Dialysis Clinic of Tampa, Inc.

	 	Florida
	Renex Dialysis Clinic of Union, Inc.

	 	Missouri
	Renex Dialysis Clinic of University City, Inc.

	 	Missouri






 









 






	 	 	 
	Additional Transferring Affiliates	 	State of Incorporation
	(added October 19, 2006)	 	 
	Renex Dialysis Clinic of Woodbury, Inc.

	 	New Jersey
	Renex Dialysis Facilities, Inc.

	 	Mississippi
	Renex Dialysis Homecare of Greater St. Louis, Inc.

	 	Missouri
	Renex Management Services, Inc.

	 	Florida
	Smyrna Dialysis Center, LLC

	 	Georgia
	SSKG, Inc.

	 	Illinois
	STAT Dialysis Corporation

	 	Delaware
	Stone Mountain Dialysis Center, LLC

	 	Georgia
	Stuttgart Dialysis, LLC

	 	Arkansas
	Three Rivers Dialysis Services, LLC

	 	Delaware
	West Palm Dialysis, LLC

	 	Georgia
	Wharton Dialysis, Inc.

	 	Texas







 












 








EXHIBIT R




to




FOURTH AMENDED AND RESTATED




TRANSFER AND ADMINISTRATION AGREEMENT




FORM OF ACCOUNT AGENT AGREEMENT




 









 





ACCOUNT AGENT AGREEMENT




          ACCOUNT AGENT AGREEMENT (this “Agreement”), dated as of August 28, 1997, made by each of the
parties identified on the signature pages hereto as being a “Titleholder”, for the benefit of NMC
Funding Corporation, a Delaware corporation (“NMC Funding”) and NationsBank, N.A., as agent (the
“Agent” ) for certain “Investors” (as defined below).




PRELIMINARY STATEMENTS:




          (1) National Medical Care, Inc., a Delaware
corporation (“NMC”) has entered into that certain Transferring Affiliate Letter (as the same
may from time to time be amended, restated, supplemented or otherwise modified, the
“Transferring Affiliate Letter”) dated as of even date herewith with each of the “Transferring
Affiliates” named therein, under which each Such Transferring Affiliate has agreed to sell
and assign on each day hereafter all of its right, title and interest in and to each
“Receivable” and all “Related Security” (each as defined therein) to NMC in accordance with
the terms thereof.




          (2) NMC has entered into that certain Receivables Purchase Agreement (as the same may from time to time be amended, restated, supplemented or
otherwise modified, the “BMA Transfer Agreement”) dated as of even date herewith with
Bio-Medical Applications Management Company, Inc., a Delaware corporation (“BMA”), under which
BMA has agreed to sell and assign on the date hereof all of its right, title and interest in and
to each “Receivable” and all “Related Security”
(each as defined therein) to NMC in accordance with
the terms thereof.




          (3) NMC has entered into that certain Receivables Purchase Agreement (as the same may from
time to time be amended, restated, supplemented or otherwise modified, the “Receivables
Agreement”) dated as of even date herewith with NMC Funding, under which NMC has agreed to sell
and assign on each day hereafter all of its right, title and interest in and to each
“Receivable” and all “Related Security” (each as defined therein), including, without
limitation, all Receivables and Related Security acquired by NMC from the Transferring
Affiliates under the Transferring Affiliate Letter and from BMA under the BMA Transfer Agreement, to NMC Funding in accordance with the terms thereof.




 









 








          (4) NMC Funding has entered into that certain Transfer and Administration Agreement (as the
same may from time to time be amended, restated, supplemented or otherwise modified, the “TAA”)
dated as of even date herewith with Enterprise Funding Corporation (“Enterprise”), NMC, as the
“Collection Agent” thereunder, certain “Bank Investors” from time to time party thereto (together
with Enterprise, the “Investors”) and the Agent, under which NMC Funding shall from time to time
sell and assign undivided percentage ownership interests in all “Receivables” and “Related
Security” (each as defined therein), including, without limitation, in all Receivables and Related
Security acquired by NMC Funding from NMC under the Receivables Agreement, to the Agent for the
benefit of the Investors in accordance with the terms thereof. Terms used herein and not otherwise
defined herein shall have the meanings assigned under the TAA.




          (5) Each Titleholder maintains, for the benefit of certain of the Transferring
Affiliates, one or more deposit accounts (each, a “Remittance Account”) to which Obligors on
Receivables that have been originated by such Transferring Affiliate have been directed to
remit payment on such Receivables.




          (6) NMC
Funding, as a condition to its entering into the Receivables
Agreement, and the
Investors and the Agent, as a condition to their entering into the TAA, have required that the
Titleholders enter into this Agreement.




          NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration (the sufficiency and receipt of which are acknowledged), each Titleholder
agrees as follows:




          SECTION 1. Representations and Warranties. Each Titleholder represents and
warrants that:





     (a) Such Titleholder maintains one or more Remittance Accounts for the benefit of one
or more Transferring Affiliates. In each case, such Titleholder is acting exclusively in its
capacity as agent for such Transferring Affiliate in the establishment and maintenance of
each Remittance Account, and acts exclusively at the direction of such Transferring
Affiliate in respect of the handling and disposition of all monies, checks, instruments,
collections, remittances or other payment items received in the Remittance Accounts (the
“Payment Items”). Each Remittance Account exists solely for the administrative convenience
of the applicable Transferring Affiliate.



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     (b) Such Titleholder does not hold or claim any lien, security interest,
charge or encumbrance, or other right or claim in, of or on (i) any Receivables originated by any Transferring Affiliate, (ii)
any Payment Items in respect of any such Receivables or (iii) any Related Security
with respect to any of the foregoing
(collectively, the “Affected Assets”). To the extent that the Titleholder at any time
comes into possession, whether by reason of a remittance to a Remittance Account or
otherwise, of any Affected Assets, such Titleholder holds such
Affected Assets

 in trust for the benefit of the applicable
Transferring Affiliate.




     (c) Such Titleholder satisfies, upon execution and delivery of this Agreement, the
requirements set forth in the Receivables Agreement and the TAA for being a
“Designated Account Agent” for purposes of those agreements.




     (d)
Such Titleholder is a corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation and has all corporate power and all material
governmental licenses, authorizations, consents and approvals required to carry on its business in
each jurisdiction in which its business is now conducted. Such Titleholder is duly qualified to do
business in, and is in good standing in, every other jurisdiction in which the nature of its
business requires it to be so qualified, except where the failure to be so qualified or in good
standing would not have a Material Adverse Effect.




     (e) The maintenance of each Remittance Account for the benefit of the applicable Transferring
Affiliates, and the execution, delivery and performance by such Titleholder of this Agreement, are
within such Titleholder’s corporate powers, have been duly authorized by all necessary corporate
action, require no action by or in respect of, or filing with, any Official Body or official
thereof and do not contravene, or constitute a default under, any provision of applicable law, rule
or regulation (including, without limitation, any CHAMPUS/VA Regulation, any Medicaid Regulation or
any Medicare Regulation) or of the Certificate of Incorporation or By-laws of such Titleholder or
of any agreement, judgment, injunction, order, writ, decree or other instrument binding upon such
Titleholder.




     (f) This Agreement constitutes the legal, valid and binding obligation of such
Titleholder enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, moratorium or other similar laws affecting the
rights of creditors generally.



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     (g) Each Remittance Account meets the requirements for being a Special Account
under the terms of each of the Receivables Agreement and the TAA, and a Special
Account Letter is in effect with respect thereto. The names and addresses of each
Remittance Account, together with the account numbers thereof and the Special Account
Banks with respect thereto, are specified in Exhibit C to the Receivables Agreement
(as the same may be amended from time to time in accordance with the terms of the
Receivables Agreement). Neither such Titleholder nor, to the best of such
Titleholder’s knowledge, any Transferring Affiliate has granted to any Person dominion
and control over any Remittance Account or the right to take dominion and control
over any Remittance Account at a future time or upon the occurrence of a future event
and each Remittance Account is  otherwise free and clear of any Adverse Claim.


On each day that a “Purchase” is made under the Receivables Agreement, each Titleholder shall
be deemed to have certified that all representations and warranties described in this Section
1 are correct on and as of such day as though made on and as of such day.




          SECTION 2. Acknowledgment of Interest. Each Titleholder acknowledges (i) that it has received a copy of each of the Transferring
Affiliate Letter, the Receivables Agreement and the TAA, (ii) the ownership and related
interests transferred to each of NMC, NMC Funding and the Agent, for the benefit of the
Investors, thereunder and (iii) that for purposes of Uniform
Commercial Code Section 9-305, it has received adequate notice of each of such interests.




          SECTION 3. Covenants. At all times from the date  hereof to the Collection
Date, unless each of NMC Funding and the Agent shall otherwise consent in writing, each
Titleholder agrees that:





     (a) Such Titleholder shall take all action, or omit to take all action, required
to be taken (or to be omitted) by each Transferring Affiliate as it may relate to the
Remittance Accounts under the Transferring Affiliate Letter, the Receivables
Agreement, or the TAA, including, without limitation any such action that relates to
any covenant or undertaking on the part of such Transferring Affiliate or any of its
assigns in respect of “Special Accounts,” the “Concentration Account” or any
“Designated Account Agent” thereunder.



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     (b)
Such Titleholder will furnish to each of NMC Funding and the Agent from time to time such
information with respect to the activity in the Remittance Accounts as NMC Funding or the Agent may
reasonably request, and will at any time and from time to time during regular business hours permit
NMC Funding and the Agent, or any of their respective agents or representatives, (i) to examine and
make copies of and take abstracts from records of such Titleholder in respect of the Remittance
Accounts and (ii) to visit the offices and properties of such Titleholder for the purpose of
examining such records.




     (c) Such Titleholder will not sell, assign (by operation of law or otherwise) or otherwise dispose
of, or create or suffer to exist any Adverse claim upon (or the filing of any financing statement
against) or with respect to any of the Affected Assets or any of the Remittance Accounts. The
Payment Items mailed to, and funds deposited to or otherwise available in, the Remittance Accounts
will not be subject to deduction, set-off, banker’s lien, or any other right in favor of such
Titleholder, all of which such Titleholder hereby waives. To the extent there are any amounts due
to any Titleholder in respect of its fees and expenses for the maintenance and operation of any of
the Remittance Accounts, or in respect of any other claim such Titleholder may from time to time
hold against any Transferring Affiliate or any affiliate thereof, such claims shall be settled
separately as between such Titleholder and such Transferring Affiliate (or other affiliate), by
disbursement from the general operating funds of the applicable Transferring Affiliate (or other
affiliate),   by disbursement from the general operating funds of the applicable Transferring
Affiliate (or other affiliate) and not by way of set-off against, or otherwise from, funds at any
time available in the Remittance Accounts.




     SECTION 4. Miscellaneous.




     (a) This Agreement may not be terminated at any time by or as to any Titleholder except in
accordance with the terms of the Receivables Agreement.




     (b) Neither this Agreement nor any provision hereof may be changed, amended, modified or waived
orally but only by an instrument in writing signed by NMC Funding and the Agent.




     (c)
No Titleholder may assign or transfer any of its rights or obligations hereunder without the
prior written consent of NMC Funding and the Agent. Subject to the



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preceding sentence, this Agreement shall be binding upon each of the parties hereto and their
respective successors and assigns, and shall inure to the benefit of, and be enforceable by, NMC
Funding, the Agent, each of the Titleholders and their respective successors and assigns.



[Remainder of page intentionally left blank]




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          IN WITNESS WHEREOF, each party hereto has caused this Agreement to be duly executed
and delivered by its officer thereunto duly authorized as of the date first above
written.




	 	 	 	 	 
	Titleholders: 	BIO-MEDICAL APPLICATIONS MANAGEMENT

COMPANY, INC.

 	 
	 	By  	 	 
	 	 	Title: 	 
	 	 	 	 
	 
	 	HOME NUTRITIONAL SERVICES, INC.

 	 
	 	By  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



Accepted and agreed as of

the date first above written:




NMC FUNDING CORPORATION




	 	 	 	 	 
	By
	 	 	 	 
	 

	 	 

Title:
	 	 
	 
	 	 	 	 
	NATIONSBANK, N.A., as Agent	 	 
	 
	 	 	 	 
	By
	 	 	 	 
	 

	 	 

Title:
	 	 






Signature Page to Account Agent Agreement

Dated as of August 28, 1997




7









 























 








EXHIBIT S




to




FOURTH AMENDED AND RESTATED




TRANSFER AND ADMINISTRATION AGREEMENT




LIST OF CLOSING DOCUMENTS


















 





FOURTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT




Dated as of October 16, 2008




NMC FUNDING CORPORATION,

as Transferor




List of Closing Documents





	 	1.	 	Amendment Agreement.
	 
	 	2.	 	Fourth Amended and Restated Transfer and Administration Agreement.
	 
	 	3.	 	Amended and Restated Parent Agreement, relating to changes in financial
covenants and transfer of rights of Agent to WestLB.
	 
	 	4.	 	Amended and Restated Receivables Purchase Agreement.
	 
	 	5.	 	Amended and Restated Transferring Affiliate Letter.
	 
	 	6.	 	Opinion of Douglas G. Kott.
	 
	 	7.	 	Opinion of Arent Fox Kintner Plotkin & Kahn relating to corporate, UCC and
other matters.
	 
	 	8.	 	True sale and non-consolidation opinion of Arent Fox Kintner Plotkin & Kahn.
	 
	 	9.	 	Opinion of German counsel.
	 
	 	10.	 	Certificate of the Secretary of the Transferor.
	 
	 	11.	 	Certificate of the Secretary of the Collection Agent.
	 
	 	12.	 	Certificate of the Secretary of each Transferring Affiliate.
	 
	 	13.	 	Good Standing Certificates for the Transferor from the Secretary of the
Commonwealth of Massachusetts and the Secretary of State of Delaware.
	 
	 	14.	 	Good Standing Certificates for the Collection Agent from the Secretary of the
Commonwealth of Massachusetts and the Secretary of State of Delaware.
	 
	 	15.	 	Good Standing Certificates for each Transferring Affiliate from the Secretary of
the Commonwealth of Massachusetts and the Secretary of State of Delaware.





          (FRESENIUS)


 









 






	 	16.	 	Fourth Amended and Restated Investor Fee Letter.
	 
	 	17.	 	Amended and Restated Agent Fee Letter.
	 
	 	18.	 	Amendment to Liquidity Asset Purchase Agreement for Liberty Street Funding
LLC.
	 
	 	19.	 	Amended and Restated Liquidity Asset Purchase Agreement for Paradigm
Funding LLC.
	 
	 	20.	 	Third Amended and Restated Fee Letter (Helaba) relating to Paradigm LAPA.
	 
	 	21.	 	Amended and Restated Fee Letter (WestLB) relating to Paradigm LAPA.
	 
	 	22.	 	Bank of America Account Control Agreements.
	 
	 	23.	 	UCC summary.





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EXHIBIT T




To




FOURTH AMENDED AND RESTATED




TRANSFER AND ADMINISTRATION AGREEMENT




Agreed Upon Procedures



Procedures performed and findings are presented as follows. For purposes of reporting our
findings, in those instances in which one or both the compared amounts were rounded to the same
degree, we have nevertheless stated that we found the compared amounts to be in agreement. Minor
or insignificant differences, as determined by management of the company (“management), between
source or testing data and the Investor Report are not discussed herein and are noted as such in
the body of the report, as indicated by the tickmark “P”. All testing is performed on the monthly
Investor Report for the period ending January 2008.



1A. For Dialysis Products Division (DPD) and Fresenius Medical Services (FMS), obtain the January
2008 Monthly Investor Reports (IR) from management and compare gross receivables (line item 1), all
components of the Net Receivables Balance calculation (line items
6-19b), Self-Pay Receivables
(line items 26-31) and all components of the Monthly Activity calculation (line items 32-37) to the
general ledger (GL) and aged trial balance (ATB). Obtain and document management’s reconciliation
of differences in the Agreed Upon Procedures Report (the “Report”).



1B. For FMS, obtain from management a list of void & rebills issued in January 2008, select 60 and
complete the following:





	Ø	 	Document management’s explanation of credit memos and void & rebills.
	 
	Ø	 	Obtain from management a list of each obligor, amount and reason for the issuance of the
void & rebill. Document management’s response in the Report in table format.
	 
	Ø	 	Calculate and document in the Report the average dilution horizon for each void & rebill
selected above. The dilution horizon is defined as the period from the average of the original and ending claim
dates to the void & rebill date for those claims.




1B. For DPD obtain from management a list of 20 credit memos issued in January 2008 and complete
the following:





	Ø	 	Obtain from management a list of each obligor, amount and reason for the issuance of the
credit memo. Document management’s response in the Report in table format.
	 
	Ø	 	Calculate and document in the Report the weighted average dilution horizon for each credit
memo selected above. The dilution horizon is defined as the period from original invoice date to the issuance
of a credit memo against that invoice. For credits issued for future purchases the dilution horizon is
zero. For cash rebates, where the A/R is not discounted and is paid in full, the dilution horizon is zero.




2A. Obtain from management the agings as represented in the selected Monthly Reports and compare
amounts to the Company’s ATB and to the GL (DPD and FMS). For each of the divisions, illustrate in
the Report the amount as shown in the aged trial balance, the GL and the selected IR. Obtain and
document management’s reconciliation of differences.





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2B. For DPD and FMS inquire of management the definition of the receivable aging policy utilized
(i.e. invoice date or due date). Document management’s representation in the Report.



2C. For FMS, select 60 claims from the January 31, 2008 aging and determine if the claims were aged
properly in accordance with the Company’s aging policy. Note in the report any invoices/claims that
may not be aged in accordance with the aging policy in Procedure 2B.



2C. For DPD, from the 20 invoices/claims selected in January 2008 in Procedure 2D, determine if
the invoices were aged properly in January in accordance with the Company’s aging policy. Note in
the Report any invoices/claims that may not be aged in accordance with the aging policy in 2B.



2D. For FMS, for January 2008, select 60 claims from 8 predetermined commercial checks received
into a lockbox account. Additionally, from 3 predetermined Medicare payments received into a
lockbox account, select a total of 60 claims. Trace all selected claims to the medical manager/QMS
system to determine if the cash received was applied to the appropriate claim.



2D. For DPD, obtain from management 20 cash receipts for DPD from the January 2008 monthly cash
collections report to determine if cash was applied to the correct invoices/claims.



3A. For DPD and FMS, obtain from management a list of payment terms. Document the list of payment
terms received from management.



3B. For DPD and FMS, inquire of management as to whether the Company extends/alters maturity of
receivables? If so, under which circumstances? Inquire as to how do the systems/reporting track
these payment term extensions (i.e., is the due date extended in the system)? Document
management’s response.



4A. For DPD and FMS, compare the monthly write-off amounts as represented in the January 2008 IR
to the monthly activity in the January 2008 roll forward of the allowance for doubtful accounts.
Document management’s explanation for any differences greater than $100,000.



4B. For DPD and FMS, obtain from management a listing of the 20 largest DPD accounts that were
written-off in January 2008 and 60 written-off claims from FMS. Request of management the reason
for the write-off and note the response.



4C. For DPD and FMS, inquire of management and note the response of the following:





	 	Ø	 	What is the methodology for reserving expected bad debts?
	 
	 	Ø	 	Has the Company reserved for any non-delinquent or non-defaulted accounts?
	 
	 	Ø	 	Is there a separate account in which delinquent accounts are placed prior to eventual charge-off
whereby the amounts are not reflected on the aging?




4D. For DPD and FMS, of the charge offs listed in Procedure 4B, inquire of management as to if any
of the accounts were converted to Notes Receivable and if so at what point in the aging where they
converted?




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5. For DPD and FMS, obtain a list of the primary obligors as listed in the IR as of January
2008 and compare this information by tracing amounts to ATB. Obtain and document management’s
reconciliation of differences.



6A. For DPD and FMS, obtain from management a listing of the lockbox number and name of the
depository banks in which collections are deposited. Compare the list of bank accounts to the
Accepted Exhibit C, an updated schedule for the TAA.



6B. For DPD and FMS obtain from management an understanding of the collection process for payments
not going directly through the accounts from 6A. Inquire as to whether any payments are received
via ACH or wire transfer? If so, obtain from management a listing of bank accounts.



6C. For DPD and FMS, examine a January 2008 bank statement to GL reconciliation for one
depository account for each division, noting the timeliness of completion and amount of
unreconciled differences. Document the quantity of all reconciling items greater than $100,000.
Document management’s explanation for all reconciling items greater than $250,000.



6D. For DPD and FMS obtain from management a schedule for January 2008 summarizing collections
within the bank statement from Procedure 6C by method of receipt, in a format similar to the one
shown below.




	 	 	 	 	 	 	 	 	 
	Method of Receipt ($000s)	 	January 2008	 	%
	Obligor mailed/sent payment directly to a Special Lock-Box
Account (via check, ACH, or Wire Transfer)
	 	$	 	 	 	 	 	 
	Obligor sent payment to Company’s office
	 	 	 	 	 	 	 	 
	Other (describe)
	 	 	 	 	 	 	 	 
	TOTAL COLLECTIONS DEPOSITED per Bank
Statement(s)
	 	$	 	 	 	 	100	%
	Reconciling items
	 	 	 	 	 	 	 	 





6E. For DPD and FMS, compare the accuracy of this schedule by tracing this information to the bank
statements, accounting records, and the January 2008 report.



6F. For DPD and FMS, inquire of management as to if more than 5% of the collections were not
remitted by the obligors directly to one of the Special Accounts. If yes, (i.e. > 5%) select a
sample of 5 of these cash receipts and inquire as to whether these collections were deposited into
the Concentration Account within 48 hours.



7. KPMG will provide a no material weakness letter for FMCH for the period
ending XXX.



See Appendix                      for the no material weakness letter.



8. Obtain from the Company the name of independent director and their contact information as well
as the name of the independent director’s employer or, if retired, the name of their most recent employer.



9. Please note any changes made to the Company’s credit and collection policy since 12/31/2006
through the date of this Report.




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EXHIBIT U




To




FOURTH AMENDED AND RESTATED




TRANSFER AND ADMINISTRATION AGREEMENT EXHIBIT H




To the Shareholders

Fresenius Medical Care Holdings, Inc.:

Waltham, MA




May 6, 2008




Ladies and Gentlemen:



We have audited the financial statements of Fresenius Medical Care Holdings, Inc. and its
subsidiaries (the Company) as of and for the year ended December 31, 2007, and have issued our
report thereon dated May 6, 2008. In planning and performing our audit of the financial statements
of the Company, in accordance with auditing standards generally accepted in the United States of
America, we considered the Company’s internal control over financial reporting internal control as
a basis for designing our auditing procedures for the purpose of expressing our opinion on the
financial statements, but not for the purpose of expressing an opinion on the effectiveness of the
Company’s internal control. Accordingly, we do not express an opinion on the effectiveness of the
Company’s internal control.



The maintenance of adequate control designed to fulfill control objectives is the responsibility of
management. Because of inherent limitations in internal control, errors or fraud may nevertheless
occur and not be detected. Also, controls found to be functioning at a point in time may later be
found deficient because of the performance of those responsible for applying them, and there can be
no assurance that controls currently in existence will prove to be adequate in the future as
changes take place in the organization.



A control deficiency exists when the design or operation of a control does not allow management or
employees, in the normal course of performing their assigned functions, to prevent or detect
misstatements on a timely basis. A significant deficiency is a control deficiency, or combination
of control deficiencies, that adversely affects the entity’s ability to initiate, authorize,
record, process, or report financial data reliably in accordance with generally accepted accounting
principles such that there is more than a remote likelihood that a misstatement of the entity’s
financial statements that is more than inconsequential will not be prevented or detected by the
entity’s internal control.




 









 







A material weakness is a significant deficiency, or combination of significant deficiencies, that
results in more than a remote likelihood that a material misstatement of the financial statements
will not be prevented or detected by the entity’s internal control.



Our consideration of internal control was for the limited purpose described in the first paragraph
and would not necessarily identify all deficiencies in internal control that might be significant
deficiencies or material weaknesses. We did not identify any deficiencies in internal control that
we consider to be material weaknesses, as defined above.



This communication is intended solely for the information and use of management, Shareholders,
others within the organization, and the Banks and is not intended to be and should not be used by
anyone other than these specified parties.




Very truly yours,




(signed) KPMG LLP