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Table of Contents

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 6-K

REPORT OF FOREIGN PRIVATE ISSUER

PURSUANT TO RULE 13A-16 OR 15D-16 OF THE

SECURITIES EXCHANGE ACT OF 1934

For the month of November 2021

Commission file number: 001-32749

FRESENIUS MEDICAL CARE AG & Co. KGaA

(Translation of registrant's name into English)

Else-Kröner Strasse 1

61346 Bad Homburg

Germany

(Address of principal executive offices)

Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.

Form 20-F    

Form 40-F    

Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1):  ____

Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): ____

Table of Contents

FRESENIUS MEDICAL CARE AG & Co. KGaA

Interim Report of Financial Condition and Results of Operations for the three and nine months ended September 30, 2021 and 2020

Page

FINANCIAL INFORMATION

Management’s discussion and analysis

Forward-looking statements

1

Financial condition and results of operations

3

Overview

3

Discussion of measures

8

Results of operations, financial position and net assets

16

Recently issued accounting standards

33

Financial Statements (unaudited)

Consolidated statements of income

34

Consolidated statements of comprehensive income

35

Consolidated balance sheets

36

Consolidated statements of cash flows

37

Consolidated statement of shareholders' equity

38

Notes to consolidated financial statements

39

Quantitative and qualitative disclosures about market risk

57

Controls and procedures

58

OTHER INFORMATION

Legal proceedings

59

Exhibits

60

Signatures

61

i

Table of Contents

FRESENIUS MEDICAL CARE AG & Co. KGaA

FINANCIAL INFORMATION

Management’s discussion and analysis

In this report, “FMC-AG & Co. KGaA,” or the “Company,” “we,” “us” or “our” refers to Fresenius Medical Care AG & Co. KGaA or Fresenius Medical Care AG & Co. KGaA and its subsidiaries on a consolidated basis, as the context requires. You should read the following discussion and analysis of the results of operations of the Company and its subsidiaries in conjunction with our unaudited consolidated financial statements and related notes contained elsewhere in this report and our disclosures and discussions in our consolidated financial statements as of and for the year ended December 31, 2020 prepared in accordance with International Financial Reporting Standards ("IFRS") as issued by the International Accounting Standards Board ("IASB”), using the euro as our reporting currency, included in our Annual Report on Form 20-F for the year ended December 31, 2020 (our "2020 Form 20-F").

The term “North America Segment” refers to our North America operating segment, the term “EMEA Segment” refers to the Europe, Middle East and Africa operating segment, the term “Asia-Pacific Segment” refers to our Asia-Pacific operating segment, and the term “Latin America Segment” refers to our Latin America operating segment. The term "Corporate" includes certain headquarters’ overhead charges, including accounting and finance, centrally managed production, production asset management, quality and supply chain management, procurement related to production as well as research and development and our Global Medical Office function, which seek to optimize medical treatments and clinical processes within the Company. The abbreviations “THOUS” and “M” are used to denote the presentation of amounts in thousands and millions, respectively. The term “Constant Currency” or at “Constant Exchange Rates” means that we have translated local currency revenue, operating income, net income attributable to shareholders of FMC-AG & Co. KGaA and other items for the current reporting period into euro using the prior year exchange rates to provide a comparable analysis without effect from exchange rate fluctuations on translation, as described below under “Financial condition and results of operations – II. Discussion of measures – Non-IFRS measures.”

Forward-looking statements

This report contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). When used in this report, the words “outlook,” “expects,” “anticipates,” “intends,” “plans,” “believes,” “seeks,” “estimates” and similar expressions are generally intended to identify forward looking statements. Although we believe that the expectations reflected in such forward-looking statements are reasonable, forward-looking statements are inherently subject to risks and uncertainties, many of which cannot be predicted with accuracy and some of which might not even be anticipated, and future events and actual results, financial and otherwise, could differ materially from those set forth in or contemplated by the forward-looking statements contained elsewhere in this report. We have based these forward-looking statements on current estimates and assumptions made to the best of our knowledge. By their nature, such forward-looking statements involve risks, uncertainties, assumptions and other factors which could cause actual results, including our financial condition and profitability, to differ materially, positively or negatively, relative to the results expressly or implicitly described in or suggested by these statements. Moreover, forward-looking estimates or predictions derived from third parties’ studies or information may prove to be inaccurate. Consequently, we cannot give any assurance regarding the future accuracy of the opinions set forth in this report or the actual occurrence of the projected developments described herein. In addition, even if our future results meet the expectations expressed here, those results may not be indicative of our performance in future periods.

These risks, uncertainties, assumptions, and other factors, including associated costs, could cause actual results to differ from our projected results and include, among others, the following:

changes in governmental and commercial insurer reimbursement for our complete products and services portfolio, including the United States (“U.S.”) Medicare reimbursement system for dialysis and other health care services, including potentially significant changes to the Patient Protection and Affordable Care Act of 2010 (Pub.L. 111-148), as amended by the Health Care and Education Reconciliation Act (Pub.L. 111-152) (collectively, “ACA”) that could result from future efforts to revise or repeal the ACA;
the outcome of government and internal investigations as well as litigation;
our ability to accurately interpret and comply with complex current and future government regulations applicable to our business including sanctions and export control laws and regulations, laws and regulations in relation to environmental, social and governance topics, the impact of health care, tax and trade law reforms, in particular the potential U.S. and international tax reform, and regulation as well as, in the U.S., the Anti-Kickback Statute, the False Claims Act, the Stark Law, the Civil Monetary Penalty Law, the Health Insurance Portability and Accountability Act, the Health Information Technology for Economic and Clinical Health Act, the Foreign Corrupt Practices Act (“FCPA”) including our non-prosecution agreement with the U.S. Department of Justice (“DOJ”) and the cease and desist order with the U.S. Securities and Exchange Commission (“SEC”), the Food, Drug and Cosmetic Act, antitrust and competition laws in the countries and localities in which we operate, and outside the U.S., inter alia, the European Union (“EU”) Medical Device Regulation, which became applicable as of May 26, 2021, the EU General Data Protection Regulation, the two invoice policy and the Tendering and Bidding Law in China and other related local

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legislation as well as other comparable regulatory regimes in many of the countries where we supply health care services and/or products;
the influence of commercial insurers and integrated care organizations, including efforts by these organizations to manage costs by limiting health care benefits, narrowing their networks, reducing provider reimbursement and/or restricting options for patient funding of health insurance premiums;
the impact of the on-going worldwide severe acute respiratory syndrome coronavirus 2 and the related Coronavirus disease (“COVID-19”) pandemic, including, without limitation, a significant increase in mortality of patients with chronic kidney diseases as well as an increase in persons experiencing renal failure, both of which may be attributable to COVID-19, as well as the impacts of the virus on our patients, caregivers, employees, suppliers, supply chain, business and operations, consequences of an economic downturn resulting from the impacts of COVID-19 and evolving guidelines and requirements regarding vaccine mandates for our employees and the use of government provided COVID-19 related relief and any additional economic relief legislation that may be passed in the countries in which we operate;
product liability risks;
our ability to continue to grow our health care services and products businesses, including through acquisitions;
our ability to attract and retain skilled employees and clinical personnel shortages which have increased in the U.S. in light of the pandemic and government vaccine mandates for certain workers, and risks that competition for labor as well as legislative, union, or other labor-related activities or changes will result in significant increases in our operating costs, decreases in productivity and partial suspension in operations;
the impact of currency and interest rate fluctuations;
potential impairment of our goodwill, investments or other assets due to decreases in the recoverable amount of those assets relative to their book value, particularly as a result of sovereign rating agency downgrades coupled with the impact of inflation and an economic downturn in various regions;
our ability to protect our information technology systems against cyber security attacks or prevent other data privacy or security breaches;
changes in our costs of purchasing and utilization patterns for pharmaceuticals and our other health care products and supplies, changes in raw material and energy costs, the inability to procure raw materials or disruptions in our supply chain;
introduction of generic or new pharmaceuticals and medical devices that compete with our products or services or the development of pharmaceuticals that reduce the progression of chronic kidney disease;
launch of new technology, advances in medical therapies, or new market entrants that compete with our businesses;
potential increases in tariffs and trade barriers that could result from withdrawal by single or multiple countries from multilateral trade agreements or the imposition of retaliatory tariffs and other countermeasures in the wake of trade disputes;
collectability of our receivables, which depends primarily on the efficacy of our billing practices, the financial stability and liquidity of our governmental and commercial payors and payor strategies to delay or thwart the collection process;
our ability to secure contracts and achieve cost savings and desired clinical outcomes in various health care risk management programs in which we participate or intend to participate;
the greater size, market power, experience and product offerings of certain competitors in certain geographic regions and business lines; and
the use of accounting estimates, judgments and accounting pronouncement interpretations in our consolidated financial statements.

Important factors that could contribute to such differences are noted in “Financial condition and results of operations – I. Overview” below, in note 2 d) and note 9 of the notes to the consolidated financial statements (unaudited) included in this report, in note 22 of the notes to the consolidated financial statements included in our 2020 Form 20-F, as well as under “Risk Factors,” "Business overview," "Operating and financial review and prospects," and elsewhere in that report. Further information regarding environmental, social and governance topics can be found within our 2020 Non-financial report available at www.freseniusmedicalcare.com/en/investors/investors-overview/. In furnishing this website address in this report, however, we do not intend to incorporate any information on our website into this report, and any information on our website should not be considered to be part of this report, except as expressly set forth herein.

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In addition to the risks related to COVID-19 noted above, we have applied for new U.S. Department of Health and Human Services funding (Provider Relief Fund Phase 4) available for health care providers affected by the COVID-19 pandemic. The timing and amount of any potential funding award is uncertain.

Our business is also subject to other risks and uncertainties that we describe from time to time in our public filings which can be accessed at the United States Securities and Exchange Commission’s internet website at www.sec.gov. Developments in any of these areas could cause our results to differ materially from the results that we or others have projected or may project.

The actual accounting policies, the judgments made in the selection and application of these policies, as well as the sensitivities of reported results to changes in accounting policies, assumptions and estimates, are additional factors to be considered along with our financial statements and the discussion under “Results of operations, financial position and net assets” below. For a discussion of our critical accounting policies, see note 2 of the notes to the consolidated financial statements included in our 2020 Form 20-F.

Rounding adjustments applied to individual numbers and percentages shown in this and other reports may result in these figures differing immaterially from their absolute values. Some figures (including percentages) in this report have been rounded in accordance with commercial rounding conventions. In some instances, such rounded figures and percentages may not add up to 100% or to the totals or subtotals contained in this report. Furthermore, totals and subtotals in tables may differ slightly from unrounded figures contained in this report due to rounding in accordance with commercial rounding conventions. A dash (“–”) indicates that no data were reported for a specific line item in the relevant financial year or period, while a zero (“0”) is used when the pertinent figure, after rounding, amounts to zero.

Financial condition and results of operations

I. Overview

We are the world's leading provider of products and services for individuals with renal diseases, based on publicly reported revenue and number of patients treated. We provide dialysis care and related services to persons who suffer from End-Stage Kidney Disease (“ESKD”) as well as other health care services. We also develop, manufacture and distribute a wide variety of health care products. Our health care products include hemodialysis machines, peritoneal dialysis cyclers, dialyzers, peritoneal dialysis solutions, hemodialysis concentrates, solutions and granulates, bloodlines, renal pharmaceuticals, systems for water treatment, acute cardiopulmonary and apheresis products. We supply dialysis clinics we own, operate or manage with a broad range of products and also sell dialysis products to other dialysis service providers. We sell our health care products to customers in around 150 countries and we also use them in our own health care service operations. Our dialysis business is therefore vertically integrated. Our other health care services which, prior to 2021, were described as “Care Coordination,” include value and risk-based arrangements, pharmacy services, vascular, cardiovascular and endovascular specialty services as well as ambulatory surgery center services, physician nephrology and cardiology services and ambulant treatment services. We estimate that the size of the global dialysis market was approximately €82 billion in 2020. Dialysis patient growth results from factors such as the aging population and increased life expectancies; shortage of donor organs for kidney transplants; increasing incidence of kidney disease and better treatment of and survival of patients with diabetes, hypertension and other illnesses, which frequently lead to the onset of chronic kidney disease; improvements in treatment quality, new pharmaceuticals and product technologies, which prolong patient life; and improving standards of living in developing countries, which make life-saving dialysis treatment available. We are also engaged in different areas of health care product therapy research.

As a global company delivering health care services and products, we face the challenge of addressing the needs of a wide variety of stakeholders, such as patients, customers, payors, regulators and legislators in many different economic environments and health care systems. In general, government-funded programs (in some countries in coordination with private insurers) pay for certain health care items and services provided to their citizens. Not all health care systems provide payment for dialysis treatment. Therefore, the reimbursement systems and ancillary services utilization environment in various countries significantly influence our business.

Significant U.S. reimbursement developments

The majority of health care services we provide are paid for by governmental institutions. For the nine months ended September 30, 2021, approximately 28% of our consolidated revenue is attributable to U.S. federally-funded health care benefit programs, such as Medicare and Medicaid reimbursement, under which reimbursement rates are set by the Centers for Medicare and Medicaid (“CMS”). Legislative changes could affect Medicare reimbursement rates for a significant portion of the services we provide. The stability of reimbursement in the U.S. has been affected by (i) the End-Stage Renal Disease (“ESRD”) prospective payment system (“ESRD PPS”), (ii) the U.S. federal government across the board spending cuts in payments to Medicare providers commonly referred to as “U.S. Sequestration”, (iii) the reduction to the ESRD PPS rate to account for the decline in utilization of certain drugs and biologicals associated with dialysis pursuant to the American Taxpayer Relief Act of 2012 ("ATRA") as subsequently modified under the Protecting Access to Medicare Act of 2014 (“PAMA”) and (iv) CMS’s 2017 final rule on the Physician Fee Schedule, which partially corrected reimbursement

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for certain procedures that were materially undervalued in 2016. Please see the detailed discussions on these and further legislative developments below:

Under the Medicare Improvements for Patients and Providers Act of 2008 (“MIPPA”), for patients with Medicare coverage, all ESRD payments for dialysis treatments are made under the ESRD PPS, a single bundled payment rate which provides a fixed payment rate, to encompass substantially all goods and services provided during the dialysis treatment. MIPPA further created the ESRD Quality Incentive Program (“QIP”) which provides that dialysis facilities in the United States that fail to achieve annual quality standards established by CMS could have base payments reduced in a subsequent year by up to 2%.
Additionally, as a result of the Budget Control Act of 2011 (“BCA”) and subsequent activity in Congress, U.S. Sequestration ($1.2 trillion in across-the-board spending cuts in discretionary programs) took effect on March 1, 2013 and is expected to continue through 2030. In particular, a 2% reduction to Medicare payments took effect on April 1, 2013 and continues in force. The 2% sequestration was temporarily suspended from May 1, 2020 through December 31, 2021 as part of the COVID-19 relief measures. Spending cuts pursuant to U.S. Sequestration have adversely affected our operating results in the past and will continue to do so after the suspension is lifted.
On October 29, 2021, CMS issued a final rule for the ESRD PPS rate for calendar year (“CY”) 2022. The final base rate per treatment for CY 2022 is $257.90, which represents a 1.9% increase from the CY 2021 base rate of $253.13. The increase of 1.9% is based on a market basket increase of 2.4% partially offset by a 0.5% multifactor productivity adjustment that is mandated by the ACA. The updated base rate includes an adjustment for the wage index budget-neutrality. CMS estimates that, on average, large dialysis organizations will receive a 2.4% increase in payments in CY 2022 compared to CY 2021 under this final rule. The Acute Kidney Injury payment rate for CY 2022 is to equal the CY 2022 ESRD PPS base rate. CMS approved the application for the Tablo System for the transitional add-on payment adjustment for new and innovative equipment and supplies (“TPNIES”) in CY 2022. CMS estimates total TPNIES payment amounts to facilities in CY 2022 would be approximately $2.5 M, of which approximately $490 thousand would be attributed to beneficiary coinsurance.
Under the ESRD QIP, CMS assesses the total performance of each facility on a set of measures specified per payment year (“PY”) and applies up to a 2 percent payment reduction to facilities that do not meet a minimum total performance score (“TPS”). In the CY 2022 final rule, CMS will adopt a special scoring and payment policy for PY 2022 of the ESRD QIP to address the issues in the scoring system caused by the impact of the COVID-19 Public Health Emergency on QIP data. The scoring and payment methodologies will be modified in PY 2022 to provide that no facility would receive a payment reduction for PY 2022. CMS finalized the ESRD QIP measure set for PY 2024 and 2025. CMS will also set performance standards for PY 2024 using CY 2019 data, which is the most recently available full calendar year of usable data due to the impact of COVID-19 on CY 2020 data.
On July 19, 2021, CMS issued the CY 2022 proposed rule for hospital outpatient and ambulatory surgery center payment systems. The proposed rule to update the Ambulatory Surgical Center (“ASC”) Fee Schedule for CY 2022 generally increases the reimbursement rates for certain vascular access services. For the range of procedures provided in an ASC, the average increase is 2.3% compared to the prior year. CMS is also proposing that the device offset percentage will be calculated using ASC rates and not hospital outpatient department rates as was the previous practice. This means that any procedure in which the device cost is 30 percent of the overall ASC procedure rate will receive device-intensive status. If finalized, certain device intensive procedures will receive the higher device intensive reimbursement. We expect that this higher reimbursement rate would apply to certain of the procedures we provide. CMS also updated the Physician Fee Schedule for CY 2022. On July 13, 2021 CMS released the annual Physician Fee Schedule proposed rule which cut reimbursement in CY 2022 for certain specialty services, including those related to cardiovascular and vascular access care. The proposed CY 2022 physician fee schedule conversion factor is $33.58, a decrease $1.31 from the CY 2021 physician fee schedule conversion factor of $34.89, after the expiration of the 3.75 percent payment increase provided for in CY 2021 by the Consolidated Appropriations Act, 2021.

Presently, there is considerable uncertainty regarding possible future changes in health care regulation, including the regulation of reimbursement for dialysis services. For additional information regarding these matters, see Item 4B, “Information on the Company—Regulatory and Legal Matters—Health Care Reform” in our 2020 Form 20-F. Although Congress' efforts to date to repeal the ACA have been unsuccessful, and on June 17, 2021, the U.S. Supreme Court dismissed litigation seeking to declare the ACA as unconstitutional, further efforts to repeal or revise the ACA may affect the law’s future prospects in ways which we currently cannot quantify or predict.

For additional information, see "Risk Factors” included in our 2020 Form 20-F.

On May 22, 2020, CMS issued a final rule that, effective January 1, 2021, removes outpatient dialysis facilities from the time-and-distance standards applicable under the network adequacy rules for Medicare Advantage, also known as Medicare Part C, plans offered by private health insurers approved by CMS to provide their members with Medicare Part A, Part B and usually Part D benefits (“Medicare Advantage” plans).

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Premium assistance programs

On August 18, 2016, CMS issued a request for information (“RFI”) seeking public comment about providers' alleged steering of patients inappropriately to individual plans offered on the Patient Protection and Affordable Care Act individual health insurance market. The holding company for our U.S. operations, Fresenius Medical Care Holdings, Inc. (“FMCH”), and other dialysis providers, commercial insurers and other industry participants responded to the RFI, and in that response, we reported that we do not engage in such steering. On December 14, 2016, CMS published an Interim Final Rule (“IFR”) entitled “Medicare Program; Conditions for Coverage for End-Stage Renal Disease Facilities-Third Party Payment” that would amend the Conditions for Coverage for dialysis providers, like FMCH. The IFR would have effectively enabled insurers to reject premium payments made by patients who received grants for individual market coverage from the American Kidney Fund (“AKF”) and, therefore, could have resulted in those patients losing their individual market health insurance coverage. The loss of individual market coverage for these patients would have had a material and adverse impact on our operating results. See Item 3.D,"Key information – Risk Factors” in our 2020 Form 20-F. On January 25, 2017, a federal district court in Texas, responsible for litigation initiated by a patient advocacy group and dialysis providers including FMCH, preliminarily enjoined CMS from implementing the IFR (Dialysis Patient Citizens v. Burwell (E.D. Texas, Sherman Div.)). The preliminary injunction was based on CMS's failure to follow appropriate notice-and-comment procedures in adopting the IFR. The injunction remains in place and the court retains jurisdiction over the dispute. On June 22, 2017, CMS requested a stay of proceedings in the litigation pending further rulemaking concerning the IFR. Plaintiffs in the litigation, including FMCH, consented to the stay, which was granted by the court.

The operation of charitable assistance programs like that of the AKF is also receiving increased attention by state insurance regulators and legislators. The result may be a regulatory framework that differs from state to state. Even in the absence of the IFR or similar state actions, insurers are likely to continue efforts to thwart charitable premium assistance to our patients for individual market plans and other insurance coverages. If successful in a material area or scope of our U.S. operations, these efforts would have a material adverse impact on our business and operating results.

Participation in new Medicare payment arrangements

Under CMS's Comprehensive ESRD Care Model (the "Model"), dialysis providers and physicians formed entities known as ESRD Seamless Care Organizations ("ESCOs”) as part of a payment and care delivery pilot program that ended March 31, 2021 which sought to deliver better health outcomes for Medicare ESKD patients while lowering CMS's costs. Following our initial participation in six ESCOs, we ultimately expanded our participation in the Model to 23 ESCOs formed at our dialysis facilities. ESCOs that achieved the program's minimum quality thresholds and generated reductions in CMS's cost of care above certain thresholds for the ESKD patients covered by the ESCO received a share of the cost savings, adjusted based on the ESCO’s performance on certain quality metrics. ESCOs may also owe payments to CMS if actual costs of care rise above set thresholds. As of March 2021, approximately 34,800 patients were aligned to ESCOs in which we participated.

In November 2017, we announced the results from the first performance year from our ESCOs. The results, which cover the period from October 2015 through December 2016, show improved health outcomes for patients receiving coordinated care through the ESCOs. This success was validated by an independent report, which showed a nearly 9% decrease in hospitalization rates for these patients during the same time. In the second performance year (CY 2017) the Company's ESCOs together generated more than $66.7 M (€59.0 M) in gross savings, an average 3.4% reduction in expenditures per patient. For the third performance year (CY 2018), CMS published the final settlement reports on August 14, 2020. In total the Company’s ESCOs produced more than $66.1 M (€56.0 M) in gross savings, an average 1.9% reduction in expenditures per patient. For the fourth performance year (CY 2019), CMS published the final settlement reports on October 31, 2020. In total, the Company’s ESCOs produced more than $10.8 M (€9.6 M) in gross losses, an average 0.3% increase in expenditures per patient. For the fifth performance year (CY 2020), CMS gave each ESCO the options to (a) extend participation in the program through March 31, 2021, and/or to (b) accept the following financial changes: (i) reduce 2020 downside risk by reducing shared losses by proportion of months during the COVID-19 Public Health Emergency as promulgated under the Public Health Services Act, (ii) cap gross savings upside potential at 5% gross savings, (iii) remove COVID-19 inpatient episodes, and (iv) remove the 2020 financial guarantee requirement. All of our affiliated ESCOs signed amendments to extend participation in the program through March 31, 2021 and 22 of our ESCOs accepted the financial changes related to COVID-19. The Model ended on March 31, 2021. We anticipate that CMS will publish final settlement reports for the last performance year in January 2022.

We have also entered into risk-based and value-based arrangement with certain payors to provide care to commercial and Medicare Advantage ESKD and CKD patients. Under these payment arrangements, our financial performance is based on our ability to manage a defined scope of medical costs within certain parameters for clinical outcomes.

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Executive order-based models

On July 10, 2019, an Executive Order on advancing kidney health was signed in the United States. Among other things, the order instructed the Secretary of Health and Human Services (“HHS”) to develop new Medicare payment models to encourage identification and earlier treatment of kidney disease as well as increased home dialysis and transplants. One of those models, for which the rule was finalized on September 29, 2020, the ESRD Treatment Choices (“ETC”) model, is a mandatory model that creates financial incentives for home treatment and kidney transplants with a start date in January 2021 and ending in June 2027. This model applies both upside and downside payment adjustments to claims submitted by physicians and dialysis facilities for certain Medicare home dialysis patients over the span of six and one-half years. Participants in this model are based on a random selection of thirty percent of the Hospital Referral Regions. As of September 30, 2021, 981 of our U.S. dialysis facilities, representing approximately 35% of our U.S. dialysis facilities, are within the random selection of Hospital Referral Regions and therefore are in areas selected for participation in the model. An initial upside-only payment, Home Dialysis Payment Adjustment (“HDPA”), will be applied for the first three years of the model, beginning in January 2021, in decreasing payment adjustments ranging from 3% in the first payment year, to 2% in the second payment year, and to 1% in the final payment year. This model also includes a Performance Payment Adjustment (“PPA”) beginning in July 2022. PPA payments will be a combined calculation of home dialysis and transplant rates based upon historic and/or benchmark data from comparison geographic areas. Possible PPA payment adjustments increase over time and will range from (5%) to 4% in the first payment year (beginning July 2022) for both physicians and facilities and increase to (9%) and 8% for physicians and (10%) and 8% percent for facilities in the final payment year (ending in June 2027).

On October 29th, CMS finalized aspects of the ETC model with an effective date of January 1, 2022, including changes to the home dialysis and transplant participation rates, the achievement and improvement benchmarking and scoring methodology and a process for sharing certain beneficiary attribution and performance data with ETC participants. CMS finalized additional programmatic waivers and other flexibilities regarding the Kidney Disease Education (“KDE”) benefit under the ETC model such that the KDE benefit can be furnished via telehealth. CMS finalized changes to the ETC model to address health and socioeconomic disparities by adding a Health Equity Incentive to the improvement scoring methodology and stratifying achievement benchmarks for beneficiaries who are dual-eligible for Medicare and Medicaid or low-income-subsidy (“LIS”) recipients. Finally, CMS has requested feedback on a number of topics related to beneficiary experience in home dialysis.

Pursuant to the Executive Order, the Secretary of HHS also announced voluntary payment models, Kidney Care First (“KCF”) and Comprehensive Kidney Care Contracting (“CKCC”) model (graduated, professional and global), which aim to build on the existing Comprehensive End Stage Renal Disease Care model. The voluntary models create financial incentives for health care providers to manage care for Medicare beneficiaries with chronic kidney disease stages 4 and 5 and with ESKD, to delay the start of dialysis, and to incentivize kidney transplants. The voluntary models allow health care providers to take on various amounts of financial risk by forming an entity known as a Kidney Care Entity (“KCE”). Two options, the CKCC global and professional models, allow renal health care providers to assume upside and downside financial risk. A third option, the CKCC graduated model, is limited to assumption of upside risk, but is unavailable to KCEs that include large dialysis organizations. Under the global model, the KCE is responsible for 100 percent of the total cost of care for all Medicare Part A and B services for aligned beneficiaries, and under the professional model, the KCE is responsible for 50 percent of such costs. Applications for the voluntary models were submitted in January 2020. We submitted 25 CKCC applications to participate in the professional model and were also included in four other CKCC applications submitted by nephrologists. All 29 of these KCE applications were accepted in June 2020. Of the 29 accepted applications, 28 KCEs have elected to participate in the implementation period, which started on October 15, 2020, and provides a start-up period during which the KCE is not at financial risk. Prior to January 1, 2022, each KCE will elect whether to continue its participation at-risk beginning in the first Performance Year which starts on January 1, 2022 and ends December 31, 2022. Of the 28 KCEs participating in the implementation period, we intend to continue participating in 22 of the KCEs during the first Performance Year. Once implemented, the CKCC model is expected to run through 2026. The commencement date of the voluntary professional model was originally set to begin on April 1, 2021, but was extended by CMS to January 1, 2022 and, relative to our 2021 expectations, we expect to both incur additional expenses and recognize no revenue as a result of this extension. We are presently unable to predict the effects on our business of the ETC payment model and the voluntary payment models.

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Company structure

Our operating and reportable segments are the North America Segment, the EMEA Segment, the Asia-Pacific Segment and the Latin America Segment. The operating segments are determined based upon how we manage our businesses with geographical responsibilities. All segments are primarily engaged in providing health care services and the distribution of products and equipment for the treatment of ESKD and other extracorporeal therapies. Management evaluates each segment using measures that reflect all of the segment’s controllable revenues and expenses. With respect to the performance of business operations, management believes that the most appropriate measures are revenue and operating income. We do not include income taxes as we believe taxes are outside the segments’ control. Financing is a corporate function which our segments do not control. Therefore, we do not include interest expense relating to financing as a segment measurement. Similarly, we do not allocate certain costs which relate primarily to certain headquarters’ overhead charges, including accounting and finance as well as certain legal and IT costs, because we believe that these costs are also not within the control of the individual segments. Production of products, production asset management, quality and supply chain management as well as procurement related to production are centrally managed. Products transferred to the segments are transferred at cost; therefore, no internal profit is generated. The associated internal revenue for the product transfers and their elimination are recorded as corporate activities. Capital expenditures for production are based on the expected demand of the segments and consolidated profitability considerations. Our global research and development team as well as our Global Medical Office, which seek to optimize medical treatments and clinical processes within the Company, are also centrally managed. These corporate activities do not fulfill the definition of a segment according to IFRS 8. In addition, certain revenues, investments and intangible assets, as well as any related expenses, are not allocated to a segment but accounted for as Corporate. Accordingly, all of these items are excluded from our analysis of segment results and are discussed below in the discussion of our consolidated results of operations. See note 11 of the notes to consolidated financial statements (unaudited) found elsewhere in this report for a further discussion on our operating segments.

As announced on November 2, 2021, we are entering the next phase of our program focusing on the transformation of our global operating model to strengthen profitability and enable execution on Strategy 2025, as defined below, (“FME25 program”): the transformation of our operating model to provide the base for future sustainable growth. In the new model, the Company intends to reorganize its business in two global operating segments.

We will consolidate our healthcare products business, including research and development, manufacturing, supply chain and commercial operations, as well as supporting functions, such as regulatory and quality management, under a global umbrella. The products business will be organized along the three treatment modalities that we serve: In-center, Home and Critical Care. Our global health care services business will be combined into one segment.

Our Global Medical Office will continue to leverage the vertically integrated approach to optimize clinical outcomes for our patients. General and administrative functions will also be globalized using a three pillars model of business partnering, centers of excellence and global shared services.

We expect to complete the implementation of the new model around 2023.

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II. Discussion of measures

Non-IFRS measures

Certain of the following key performance indicators and other financial information as well as discussions and analyses set out in this report include measures that are not defined by IFRS (“Non-IFRS Measure”). We believe this information, along with comparable IFRS financial measurements, is useful to our investors as it provides a basis for assessing our performance, payment obligations related to performance-based compensation, our compliance with financial covenants and enhanced transparency as well as comparability of our results. Non-IFRS financial measures should not be viewed or interpreted as a substitute for financial information presented in accordance with IFRS.

Our presentation of some key performance indicators and other financial measures used in this report such as changes in revenue, operating income and net income attributable to shareholders of FMC-AG & Co. KGaA (or “net income”) includes the impact of translating local currencies to our reporting currency for financial reporting purposes. We calculate these Non-IFRS financial measures at constant exchange rates in our publications to show changes in our revenue, operating income, net income attributable to shareholders of FMC-AG & Co. KGaA and other items without giving effect to period-to-period currency fluctuations. Under IFRS, amounts received in local (non-euro) currency are translated into euro at the average exchange rate for the period presented. Once we translate the local currency for the constant currency, we then calculate the change, as a percentage, of the current period calculated using the prior period exchange rates versus the prior period. This resulting percentage is a Non-IFRS Measure referring to a change as a percentage at constant currency. These currency-adjusted financial measures are identifiable by the designated terms “Constant Exchange Rates” or “Constant Currency.”

We believe that the measures at Constant Currency are useful to investors, lenders and other creditors because such information enables them to gauge the impact of currency fluctuations on our revenue, operating income, net income attributable to shareholders of FMC-AG & Co. KGaA and other items from period to period. In addition, under our long-term incentive plans, we measure the attainment of certain predetermined financial targets for revenue growth and net income growth in Constant Currency. However, we limit our use of Constant Currency period-over-period changes to a measure for the impact of currency fluctuations on the translation of local currency into euro. We do not evaluate our results and performance without considering both:

(1)

period-over-period changes in revenue, operating income, net income attributable to shareholders of FMC-AG & Co. KGaA and other items prepared in accordance with IFRS, and

(2)

Constant Currency changes in revenue, operating income, net income attributable to shareholders of FMC-AG & Co. KGaA and other items.

We caution the readers of this report not to consider these measures in isolation, but to review them in conjunction with changes in revenue, operating income, net income attributable to shareholders of FMC-AG & Co. KGaA and other items prepared in accordance with IFRS. We present the growth rate derived from non-IFRS measures next to the growth rate derived from IFRS measures such as revenue, operating income, net income attributable to shareholders of FMC-AG & Co. KGaA and other items. As the reconciliation is inherent in the disclosure included within "Results of operations, financial position and net assets,” below, we believe that a separate reconciliation would not provide any additional benefit.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Return on invested capital (“ROIC”) (Non-IFRS Measure)

ROIC is the ratio of operating income, for the last twelve months, after tax (“net operating profit after tax” or “NOPAT”) to the average invested capital of the last five quarter closing dates, including adjustments for acquisitions and divestitures made during the last twelve months with a purchase price above a €50 M threshold, consistent with the respective adjustments made in the determination of adjusted EBITDA below (see “Net leverage ratio (Non-IFRS Measure).” ROIC expresses how efficiently we allocate the capital under our control or how well we employ our capital with regard to investment projects. Additionally, we have excluded the impairment of goodwill and trade names in the Latin America Segment driven by a macro-economic downturn and increasing risk adjustment rates for certain countries in the region ("Impairment Loss") (see note 2 a) of the notes to the consolidated financial statements included in our 2020 Form 20-F) to increase comparability of the underlying financial figures of certain Management Board compensation performance targets with the Company’s operating performance and to adequately recognize the actual performance of the members of the Management Board. An adjustment to exclude amounts related to the implementation of IFRS 16, Leases, which replaced the straight-line operating lease expense for former leases under International Accounting Standard 17, Leases, with a depreciation charge for the lease asset and an interest expense on the lease liability as well as the classification of certain IAS 17 leases (such effects being, collectively “Effect from IFRS 16”) is included for the purpose of increasing the comparability of previously reported information in accordance with our long-term incentive plans in 2019. The following tables show the reconciliation of average invested capital to total assets, which we believe to be the most directly comparable IFRS financial measure, and how ROIC is calculated:

Reconciliation of average invested capital and ROIC (Non-IFRS Measure, unadjusted)

in € M, except where otherwise specified

September 30,

    

June 30,

    

March 31,

    

December 31,

    

September 30,

2021

    

 2021

    

2021

    

 2021

    

2020

    

2020

Total assets

 

33,831

 

32,987

 

33,159

 

31,689

 

33,049

Plus: Cumulative goodwill amortization and Impairment Loss

 

604

 

602

 

598

 

583

 

405

Minus: Cash and cash equivalents

 

(1,562)

 

(1,408)

 

(1,073)

 

(1,082)

 

(1,599)

Minus: Loans to related parties

 

(4)

 

(6)

 

(1)

 

(1)

 

(51)

Minus: Deferred tax assets

 

(374)

 

(359)

 

(333)

 

(351)

 

(429)

Minus: Accounts payable to unrelated parties

 

(706)

 

(685)

 

(635)

 

(732)

 

(729)

Minus: Accounts payable to related parties

 

(94)

 

(102)

 

(105)

 

(95)

 

(132)

Minus: Provisions and other current liabilities (1)

 

(3,516)

 

(3,528)

 

(3,436)

 

(3,180)

 

(3,641)

Minus: Income tax liabilities

 

(224)

 

(218)

 

(232)

 

(197)

 

(269)

Invested capital

 

27,955

 

27,283

 

27,942

 

26,634

 

26,604

Average invested capital as of September 30, 2021

 

27,284

 

  

 

  

 

  

 

  

Operating income

 

1,865

 

  

 

  

 

  

 

  

Income tax expense (2)

 

(501)

 

  

 

  

 

  

 

  

NOPAT

 

1,364

 

  

 

  

 

  

 

  

Adjustments to average invested capital and ROIC

in € M, except where otherwise specified

    

September 30,

    

June 30,

    

March 31,

    

December 31,

    

September 30,

2021

    

 2021

    

2021 (3)

    

 2021 (3)

    

 2020 (3)

    

 2020 (3)

Total assets

 

 

73

 

73

 

183

 

191

Minus: Cash and cash equivalents

 

 

 

 

(3)

 

(3)

Minus: Provisions and other current liabilities (1)

 

 

(6)

 

(6)

 

(12)

 

(12)

Invested capital

 

 

67

 

67

 

168

 

176

Adjustment to average invested capital as of September 30, 2021

 

96

 

  

 

  

 

  

 

  

Adjustment to operating income (3)

 

16

 

  

 

  

 

  

 

  

Adjustment to income tax expense (3)

 

(4)

 

  

 

  

 

  

 

  

Adjustment to NOPAT

 

12

 

  

 

  

 

  

 

  

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Reconciliation of average invested capital and ROIC (Non-IFRS Measure)

in € M, except where otherwise specified

    

September 30,

    

June 30,

    

March 31,

    

December 31,

    

September 30,

2021

    

 2021

    

2021 (3)

    

 2021 (3)

    

 2020 (3)

    

 2020 (3)

Total assets

 

33,831

 

33,060

 

33,232

 

31,872

 

33,240

Plus: Cumulative goodwill amortization and Impairment Loss

 

604

 

602

 

598

 

583

 

405

Minus: Cash and cash equivalents

 

(1,562)

 

(1,408)

 

(1,073)

 

(1,085)

 

(1,602)

Minus: Loans to related parties

 

(4)

 

(6)

 

(1)

 

(1)

 

(51)

Minus: Deferred tax assets

 

(374)

 

(359)

 

(333)

 

(351)

 

(429)

Minus: Accounts payable to unrelated parties

 

(706)

 

(685)

 

(635)

 

(732)

 

(729)

Minus: Accounts payable to related parties

 

(94)

 

(102)

 

(105)

 

(95)

 

(132)

Minus: Provisions and other current liabilities (1)

 

(3,516)

 

(3,534)

 

(3,442)

 

(3,192)

 

(3,653)

Minus: Income tax liabilities

 

(224)

 

(218)

 

(232)

 

(197)

 

(269)

Invested capital

 

27,955

 

27,350

 

28,009

 

26,802

 

26,780

Average invested capital as of September 30, 2021

 

27,379

 

 

  

 

  

 

  

Operating income (3)

 

1,881

 

  

 

  

 

  

 

  

Income tax expense (2), (3)

 

(505)

 

  

 

  

 

  

 

  

NOPAT

 

1,376

 

  

 

  

 

  

 

  

ROIC

 

5.0%

  

 

  

 

  

 

  

Adjustments to average invested capital and ROIC (excluding Impairment Loss)

in € M, except where otherwise specified

    

September 30,

    

June 30,

    

March 31,

    

December 31,

    

September 30,

2021

    

 2021

    

2021

    

 2021

    

2020

    

2020

Total assets

 

 

 

 

195

 

Plus: Impairment Loss

 

 

 

 

(195)

 

Invested capital

 

 

 

 

 

Average invested capital as of September 30, 2021

 

 

  

 

  

 

  

 

  

Adjustment to operating income

 

195

 

  

 

  

 

  

 

  

Adjustment to income tax expense

 

(52)

 

  

 

  

 

  

 

  

Adjustment to NOPAT

 

143

 

  

 

  

 

  

 

  

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Reconciliation of average invested capital and ROIC (Non-IFRS Measure, excluding Impairment Loss)

in € M, except where otherwise specified

    

September 30,

    

June 30,

    

March 31,

    

December 31,

    

September 30,

2021

    

 2021

    

2021(3)

    

 2021 (3)

    

 2020 (3)

    

 2020 (3)

Total assets

 

33,831

 

33,060

 

33,232

 

32,067

 

33,240

Plus: Cumulative goodwill amortization

 

604

 

602

 

598

 

388

 

405

Minus: Cash and cash equivalents

 

(1,562)

 

(1,408)

 

(1,073)

 

(1,085)

 

(1,602)

Minus: Loans to related parties

 

(4)

 

(6)

 

(1)

 

(1)

 

(51)

Minus: Deferred tax assets

 

(374)

 

(359)

 

(333)

 

(351)

 

(429)

Minus: Accounts payable to unrelated parties

 

(706)

 

(685)

 

(635)

 

(732)

 

(729)

Minus: Accounts payable to related parties

 

(94)

 

(102)

 

(105)

 

(95)

 

(132)

Minus: Provisions and other current liabilities (1)

 

(3,516)

 

(3,534)

 

(3,442)

 

(3,192)

 

(3,653)

Minus: Income tax liabilities

 

(224)

 

(218)

 

(232)

 

(197)

 

(269)

Invested capital

 

27,955

 

27,350

 

28,009

 

26,802

 

26,780

Average invested capital as of September 30, 2021

 

27,379

 

  

 

  

 

  

 

  

Operating income (3)

 

2,076

 

  

 

  

 

  

 

  

Income tax expense (2), (3)

 

(557)

 

  

 

  

 

  

 

  

NOPAT

 

1,519

 

  

 

  

 

  

 

  

ROIC (excluding Impairment Loss)

 

5.5%

  

 

  

 

  

 

  

Adjustments to average invested capital and ROIC for the Effect from IFRS 16

in € M, except where otherwise specified

    

September 30,

    

June 30,

    

March 31,

    

December 31,

    

September 30,

2021

    

 2021

    

2021 (3)

    

2021 (3)

    

2020 (3)

    

2020 (3)

Total assets

 

(4,198)

 

(4,177)

 

(4,242)

 

(4,130)

 

(4,261)

Minus: Deferred tax assets

 

(39)

 

(35)

 

(30)

 

2

 

4

Minus: Provisions and other current liabilities (1)

 

(136)

 

(132)

 

(134)

 

(128)

 

(134)

Minus: Income tax liabilities

 

1

 

1

 

1

 

1

 

Invested capital

 

(4,372)

 

(4,343)

 

(4,405)

 

(4,255)

 

(4,391)

Adjustment to average invested capital as of September 30, 2021

 

(4,353)

 

  

 

 

  

 

  

Adjustment to operating income

 

(119)

 

  

 

  

 

  

 

  

Adjustment to income tax expense

 

32

 

  

 

  

 

  

 

  

Adjustment to NOPAT

 

(87)

 

  

 

  

 

  

 

  

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Reconciliation of average invested capital and ROIC (Non-IFRS Measure, excluding Impairment Loss and the Effect from IFRS 16)

in € M, except where otherwise specified

    

September 30,

    

June 30,

    

March 31,

    

December 31,

    

September 30,

2021

    

 2021

    

2021 (3)

    

2021 (3)

    

2020 (3)

    

2020 (3)

Total assets

 

29,633

 

28,883

 

28,990

 

27,937

 

28,979

Plus: Cumulative goodwill amortization

 

604

 

602

 

598

 

388

 

405

Minus: Cash and cash equivalents

 

(1,562)

 

(1,408)

 

(1,073)

 

(1,085)

 

(1,602)

Minus: Loans to related parties

 

(4)

 

(6)

 

(1)

 

(1)

 

(51)

Minus: Deferred tax assets

 

(413)

 

(394)

 

(363)

 

(349)

 

(425)

Minus: Accounts payable to unrelated parties

 

(706)

 

(685)

 

(635)

 

(732)

 

(729)

Minus: Accounts payable to related parties

 

(94)

 

(102)

 

(105)

 

(95)

 

(132)

Minus: Provisions and other current liabilities (1)

 

(3,652)

 

(3,666)

 

(3,576)

 

(3,320)

 

(3,787)

Minus: Income tax liabilities

 

(223)

 

(217)

 

(231)

 

(196)

 

(269)

Invested capital

 

23,583

 

23,007

 

23,604

 

22,547

 

22,389

Average invested capital as of September 30, 2021

 

23,026

 

  

 

  

 

  

 

Operating income (3)

 

1,957

 

  

 

  

 

  

 

  

Income tax expense (2), (3)

 

(525)

 

  

 

  

 

  

 

  

NOPAT

 

1,432

 

  

 

  

 

  

 

  

ROIC (excluding Impairment Loss and the Effect from IFRS 16)

 

6.2%

  

 

  

 

  

 

  

Reconciliation of average invested capital and ROIC (Non-IFRS Measure, unadjusted)

in € M, except where otherwise specified

    

December 31,

    

September 30,

    

June 30,

    

March 31,

    

December 31,

2020

    

2020

    

2020

    

2020

    

2020

    

2019

Total assets

 

31,689

 

33,049

 

34,190

 

34,072

 

32,935

Plus: Cumulative goodwill amortization and Impairment Loss

 

583

 

405

 

421

 

430

 

420

Minus: Cash and cash equivalents

 

(1,082)

 

(1,599)

 

(1,890)

 

(1,405)

 

(1,008)

Minus: Loans to related parties

 

(1)

 

(51)

 

(49)

 

(40)

 

(72)

Minus: Deferred tax assets

 

(351)

 

(429)

 

(391)

 

(382)

 

(361)

Minus: Accounts payable to unrelated parties

 

(732)

 

(729)

 

(678)

 

(762)

 

(717)

Minus: Accounts payable to related parties

 

(95)

 

(132)

 

(135)

 

(134)

 

(119)

Minus: Provisions and other current liabilities (1)

 

(3,180)

 

(3,641)

 

(3,799)

 

(2,577)

 

(2,452)

Minus: Income tax liabilities

 

(197)

 

(269)

 

(212)

 

(200)

 

(180)

Invested capital

 

26,634

 

26,604

 

27,457

 

29,002

 

28,446

Average invested capital as of December 31, 2020

 

27,628

 

  

 

  

 

  

 

  

Operating income

 

2,304

 

  

 

  

 

  

 

  

Income tax expense (2)

 

(688)

 

  

 

  

 

  

 

  

NOPAT

 

1,616

 

  

 

  

 

  

 

  

ROIC

 

5.8%

  

 

  

 

  

 

  

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Adjustments to average invested capital and ROIC (excluding Impairment Loss)

in € M, except where otherwise specified

    

December 31,

    

September 30,

    

June 30,

    

March 31,

    

December 31,

2020

    

2020

    

2020

    

2020

    

2020

    

2019

Total assets

 

195

 

 

 

 

Plus: Impairment Loss

 

(195)

 

 

 

 

Invested capital

 

 

 

 

 

Adjustment to average invested capital as of December 31, 2020

 

 

  

 

  

 

  

 

  

Adjustment to operating income

 

195

 

  

 

  

 

  

 

  

Adjustment to income tax expense

 

19

 

  

 

  

 

  

 

  

Adjustment to NOPAT

 

214

 

  

 

  

 

  

 

  

Reconciliation of average invested capital and ROIC (Non-IFRS Measure, excluding Impairment Loss)

in € M, except where otherwise specified

    

December 31,

    

September 30,

    

June 30,

    

March 31,

    

December 31,

2020

    

2020

    

2020

    

2020

    

2020

    

2019

Total assets

 

31,884

 

33,049

 

34,190

 

34,072

 

32,935

Plus: Cumulative goodwill amortization

 

389

 

405

 

421

 

430

 

420

Minus: Cash and cash equivalents

 

(1,082)

 

(1,599)

 

(1,890)

 

(1,405)

 

(1,008)

Minus: Loans to related parties

 

(1)

 

(51)

 

(49)

 

(40)

 

(72)

Minus: Deferred tax assets

 

(351)

 

(429)

 

(391)

 

(382)

 

(361)

Minus: Accounts payable to unrelated parties

 

(732)

 

(729)

 

(678)

 

(762)

 

(717)

Minus: Accounts payable to related parties

 

(95)

 

(132)

 

(135)

 

(134)

 

(119)

Minus: Provisions and other current liabilities (1)

 

(3,180)

 

(3,641)

 

(3,799)

 

(2,577)

 

(2,452)

Minus: Income tax liabilities

 

(197)

 

(269)

 

(212)

 

(200)

 

(180)

Invested capital

 

26,634

 

26,604

 

27,457

 

29,002

 

28,446

Average invested capital as of December 31, 2020

 

27,628

 

  

 

  

 

  

 

  

Operating income

 

2,499

 

  

 

  

 

  

 

  

Income tax expense (2)

 

(669)

 

  

 

  

 

  

 

  

NOPAT

 

1,830

 

  

 

  

 

  

 

  

ROIC (excluding Impairment Loss)

 

6.6%

  

 

  

 

  

 

  

Adjustments to average invested capital and ROIC for the Effect from IFRS 16

in € M, except where otherwise specified

    

December 31,

    

September 30,

    

June 30,

    

March 31,

    

December 31,

2020

    

2020

    

2020

    

2020

    

2020

    

2019

Total assets

 

(4,130)

 

(4,261)

 

(4,421)

 

(4,388)

 

(4,356)

Minus: Deferred tax assets

 

2

 

4

 

3

 

3

 

2

Minus: Provisions and other current liabilities (1)

 

(128)

 

(134)

 

(140)

 

(143)

 

(140)

Minus: Income tax liabilities

 

1

 

 

 

 

Invested capital

 

(4,255)

 

(4,392)

 

(4,558)

 

(4,529)

 

(4,494)

Adjustment to average invested capital as of December 31, 2020

 

(4,445)

 

  

 

  

 

  

 

  

Adjustment to operating income

 

(134)

 

  

 

  

 

  

 

  

Adjustment to income tax expense

 

40

 

  

 

  

 

  

 

  

Adjustment to NOPAT

 

(94)

 

  

 

  

 

  

 

  

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Reconciliation of average invested capital and ROIC (Non-IFRS Measure, excluding Impairment Loss and the Effect from IFRS 16)

in € M, except where otherwise specified

    

December 31,

    

September 30,

    

June 30,

    

March 31,

    

December 31,

2020

    

2020

    

2020

    

2020

    

2020

    

2019

Total assets

 

27,754

 

28,788

 

29,769

 

29,684

 

28,579

Plus: Cumulative goodwill amortization

 

389

 

405

 

421

 

430

 

420

Minus: Cash and cash equivalents

 

(1,082)

 

(1,599)

 

(1,890)

 

(1,405)

 

(1,008)

Minus: Loans to related parties

 

(1)

 

(51)

 

(49)

 

(40)

 

(72)

Minus: Deferred tax assets

 

(349)

 

(426)

 

(388)

 

(380)

 

(359)

Minus: Accounts payable to unrelated parties

 

(732)

 

(729)

 

(678)

 

(762)

 

(717)

Minus: Accounts payable to related parties

 

(95)

 

(132)

 

(135)

 

(134)

 

(119)

Minus: Provisions and other current liabilities (1)

 

(3,309)

 

(3,775)

 

(3,940)

 

(2,720)

 

(2,592)

Minus: Income tax liabilities

 

(196)

 

(269)

 

(212)

 

(200)

 

(180)

Invested capital

 

22,379

 

22,212

 

22,899

 

24,473

 

23,952

Average invested capital as of December 31, 2020

 

23,183

 

  

 

  

 

  

 

  

Operating income

 

2,365

 

  

 

  

 

  

 

  

Income tax expense (2)

 

(629)

 

  

 

  

 

  

 

  

NOPAT

 

1,736

 

  

 

  

 

  

 

  

ROIC (excluding Impairment Loss and the Effect from IFRS 16)

 

7.5%

  

 

  

 

  

 

  

(1)

Including non-current provisions, non-current labor expenses and variable payments outstanding for acquisitions and excluding pension liabilities and noncontrolling interests subject to put provisions.

(2)

Adjusted for noncontrolling partnership interests.

(3)

Including adjustments for acquisitions and divestitures made within the reporting period with a purchase price above a €50 M threshold.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Net cash provided by (used in) operating activities in % of revenue

Our consolidated statement of cash flows indicates how we generated and used cash and cash equivalents. In conjunction with our other primary financial statements, it provides information that helps us evaluate changes to our net assets and our financial structure (including liquidity and solvency). Net cash provided by (used in) operating activities is applied to assess whether a business can internally generate the cash required to make the necessary replacement and expansion of investments. This indicator is impacted by the profitability of our business and the development of working capital, mainly receivables. Net cash provided by (used in) operating activities in percent of revenue shows the percentage of our revenue that is available in terms of financial resources. This measure is an indicator of our operating financial strength.

Free cash flow in % of revenue (Non-IFRS Measure)

Free cash flow (which we define as net cash provided by (used in) operating activities after capital expenditures, before acquisitions and investments) refers to the cash flow we have at our disposal, including cash flows that may be restricted for other uses. This indicator shows the percentage of revenue available for acquisitions and investments, dividends to shareholders, reducing debt financing or for repurchasing shares.

For a reconciliation of cash flow performance indicators for the nine months ended September 30, 2021 and 2020 which reconciles free cash flow and free cash flow in percent of revenue to Net cash provided by (used in) operating activities and Net cash provided by (used in) operating activities in percent of revenue, see “III. Results of operations, financial position and net assets - Financial position - Sources of Liquidity.’’

Net leverage ratio (Non-IFRS Measure)

The net leverage ratio is a performance indicator used for capital management. To determine the net leverage ratio, debt and lease liabilities less cash and cash equivalents (net debt) is compared to adjusted EBITDA (earnings before interest, taxes, depreciation and amortization), adjusted for:

the effects of acquisitions and divestitures made during the last twelve months with a purchase price above a €50 M threshold as defined in our €2 billion syndicated multicurrency sustainability-linked revolving and swingline credit facilities agreement (“Syndicated Credit Facility”) (see note 6 of the notes to the consolidated financial statements (unaudited) included in this report),
non-cash charges,
impairment loss, and
costs related to our FME25 program.

The ratio is an indicator of the length of time the Company needs to service the net debt out of its own resources. We believe that the net leverage ratio provides alternative information that management believes to be useful in assessing our ability to meet our payment obligations in addition to considering the absolute amount of our debt. We have a strong market position in a growing, global and mainly non-cyclical market. Furthermore, most of our customers have a high credit rating as the dialysis industry is characterized by stable and sustained cash flows. We believe this enables us to work with a reasonable proportion of debt. Adjusted EBITDA, a non-IFRS Measure, is also relevant in determining compliance with the leverage ratio threshold limiting asset dispositions under the Syndicated Credit Facility. You should not consider adjusted EBITDA to be an alternative to net earnings determined in accordance with IFRS or to cash flow from operations, investing activities or financing activities. In addition, not all funds depicted by adjusted EBITDA are available for management's discretionary use. For example, a substantial portion of such funds are subject to contractual restrictions and functional requirements to fund debt service, capital expenditures and other commitments from time to time as described in more detail elsewhere in this report.

For a reconciliation of adjusted EBITDA and net leverage ratio as of September 30, 2021 and December 31, 2020, see “III. Results of operations, financial position and net assets - Financial position - Sources of Liquidity.’’

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III. Results of operations, financial position and net assets

The following sections summarize our results of operations, financial position and net assets as well as key performance indicators by reporting segment, as well as Corporate, for the periods indicated. We prepared the information consistent with the manner in which management internally disaggregates financial information to assist in making operating decisions and evaluating management performance.

We have updated our Company strategy to leverage our core strategic competencies in order to achieve our goal of providing health care for chronically and critically ill patients across the renal care continuum (“Strategy 2025”), which encompasses new renal care models, value-based care models, chronic kidney disease and transplantation as well as future innovations. Accordingly, we have adjusted the presentation of consolidated and operating segment data to reflect the integration of Dialysis and Care Coordination in our business model. Therefore, we do not present Dialysis and Care Coordination metrics separately. As such, Care Coordination information previously presented separately for the North America Segment and the Asia-Pacific Segment is now included within the corresponding Health Care metric. This presentation also more closely aligns our external financial reporting with the manner in which management reviews financial information to make operating decisions and evaluate performance of our business.

Results of operations

Segment data (including Corporate)

in € M

    

For the three months ended

    

For the nine months ended

September 30,

September 30,

    

2021

    

2020

    

2021

    

2020

Total revenue

 

  

  

  

  

North America Segment

 

3,080

3,069

8,931

9,495

EMEA Segment

 

671

682

2,033

2,048

Asia-Pacific Segment

 

501

484

1,458

1,377

Latin America Segment

 

178

170

508

508

Corporate

 

11

9

42

31

Total

 

4,441

4,414

12,972

13,459

Operating income

 

  

  

  

  

North America Segment

 

446

514

1,242

1,587

EMEA Segment

 

79

99

232

278

Asia-Pacific Segment

 

86

97

256

237

Latin America Segment

 

4

11

14

29

Corporate

 

(110)

(89)

(341)

(288)

Total

 

505

632

1,403

1,843

Interest income

 

16

8

45

27

Interest expense

 

(84)

(96)

(259)

(311)

Income tax expense

 

(105)

(124)

(274)

(362)

Net income

 

332

420

915

1,197

Net income attributable to noncontrolling interests

 

(59)

(66)

(174)

(210)

Net income attributable to shareholders of FMC-AG & Co. KGaA

 

273

354

741

987

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Revenue and operating income generated in countries outside the eurozone are subject to currency fluctuations. The table below summarizes the development of the euro against the U.S. dollar as well as the revenue and the operating income, as a percentage of the consolidated results, generated in U.S. dollars for the three- and nine-month periods ended September 30, 2021 and 2020:

Currency development and portion of total revenue and operating income

    

For the three months ended

For the nine months ended

September 30,

September 30,

    

2021

    

2020

    

2021

    

2020

Currency development of euro against the U.S. dollar

relatively unaffected

negative impact

negative impact

relatively unaffected

Percentage of revenue in U.S. dollars

 

69

%

70

%

69

%

71

%

Percentage of operating income generated in U.S. dollars

 

88

%

81

%

89

%

86

%

Three months ended September 30, 2021 compared to three months ended September 30, 2020

Consolidated financials

Performance indicators for the consolidated financial statements

Change in %

For the three months ended

Currency

September 30,

translation

Constant

2021

2020

As reported

effects

Currency(1)

    

    

    

    

    

Revenue in € M

4,441

 

4,414

 

1%

0%

1%

Health care services

3,530

 

3,499

 

1%

(1%)

2%

Health care products

911

 

915

 

0%

1%

(1%)

Number of dialysis treatments

13,297,287

 

13,576,177

 

(2%)

Same Market Treatment Growth (2)

(2.4%)

1.8%

Gross profit in € M

1,267

 

1,359

(7%)

(1%)

(6%)

Gross profit as a % of revenue

28.5%

30.8%

Selling, general and administrative costs in € M

731

 

706

3%

1%

4%

Selling, general and administrative costs as a % of revenue

16.5%

16.0%

Operating income in € M

505

 

632

(20%)

(1%)

(19%)

Operating income margin

11.4%

14.3%

Net income attributable to shareholders of FMC-AG & Co. KGaA in € M

273

 

354

 

(23%)

(1%)

(22%)

Basic earnings per share in €

0.93

 

1.21

 

(23%)

(1%)

(22%)

(1)

For further information on Constant Exchange Rates, see “II. Discussion of measures – Non–IFRS measures" above.

(2)

Same market treatment growth represents growth in treatments, adjusted for certain reconciling items including (but not limited to) treatments from acquisitions, closed or sold clinics and differences in dialysis days (“Same Market Treatment Growth”).

Health care services revenue increased by 1% as compared to the three months ended September 30, 2020 (+2% at Constant Exchange Rates) driven by an increase in organic growth (+1%) despite impacts from COVID-19, including excess mortality rates among patients due to COVID-19 (“COVID-19-Related Impacts”) in certain of our operating segments, which are further described in the discussions of our segments below, and despite lower reimbursement for calcimimetics. The increase was also driven by contributions from acquisitions (+1%), partially offset by a negative impact from foreign currency translation (-1%).

Dialysis treatments decreased by 2% as a result of a reduction in same market treatments (-2%). COVID-19-Related Impacts contributed significantly to the decreases in treatments and Same Market Treatment Growth.

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At September 30, 2021, we owned, operated or managed 4,151 dialysis clinics compared to 4,073 dialysis clinics at September 30, 2020. During the three months ended September 30, 2021, we acquired 18 dialysis clinics, opened 16 dialysis clinics and combined or closed 8 clinics. The number of patients treated in dialysis clinics that we own, operate or manage decreased by 1% to 344,872 as of September 30, 2021 (September 30, 2020: 349,167). The decrease in patients was driven by COVID-19-Related Impacts.

Health care product revenue remained stable (-1% at Constant Exchange Rates) as lower sales of in-center disposables and peritoneal dialysis products were offset by a positive impact from foreign currency translation and higher sales of machines for chronic treatment.

Gross profit decreased by 7% (-6% at Constant Exchange Rates) primarily driven by unfavorable effects from COVID-19-Related Impacts (in particular, the absence of further U.S. federal relief funding under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) in 2021) (all regions), inflationary cost increases (all regions) and higher implicit price concessions (North America Segment), partially offset by increased treatment volumes (including growth from acquisitions) as normalized for COVID-19 as well as a higher reimbursement rate driven by an increased number of patients with Medicare Advantage coverage and other payor mix effects (North America Segment).

Selling, general and administrative (“SG&A”) expense increased by 3% (+4% at Constant Exchange Rates) primarily driven by higher cloud computing costs (North America Segment), unfavorable effects from COVID-19 Impacts (all regions), higher bad debt expense (primarily North America Segment and EMEA Segment), costs associated with the FME25 Program (Corporate) and an increase in travel expense (North America Segment), partially offset by lower contributions to the opposition of U.S. state ballot initiatives and a favorable impact from the revaluation of investments (North America Segment).

Research and development expenses increased by 17% to €52 M from €45 M. The increase was largely driven by in-center program development as well as activities in the field of regenerative medicine, decreased capitalization of development costs and higher amortization of development costs during the quarter.

Income from equity method investees decreased by 13% to €21 M from €24 M. The decrease was primarily driven by lower income from Vifor Fresenius Medical Care Renal Pharma Ltd. (“VFMCRP”), an entity in which we have ownership of 45%.

Operating income decreased by 20% (-19% at Constant Exchange Rates) largely driven by the decrease in gross profit coupled with the increase in SG&A expenses, as discussed above, as well as a negative impact from foreign currency translation.

Net interest expense decreased by 22% to €68 M from €88 M primarily due to lower interest rates driven by refinancing activities (including the issuance of bonds at lower interest rates) and lower interest rates on lease liabilities as well as the recognition of interest income related to royalty receivables.

Income tax expense decreased to €105 M from €124 M. The effective tax rate increased to 24.1% from 22.9% for the same period of 2020 largely driven the absence of a prior year impact related to the release of a tax liability as well as an increase of non-tax deductible expenses, partially offset by a prior year impact from higher non-tax deductible expenses in the U.S.

Net income attributable to noncontrolling interests decreased by 12% (-12% at Constant Exchange Rates) to €59 M from €66 M due to lower earnings in entities in which we have less than 100% ownership.

Net income attributable to shareholders of FMC-AG & Co. KGaA decreased by 23% (-22% at Constant Exchange Rates) to €273 M from €354 M as a result of the combined effects of the items discussed above as well as a negative impact from foreign currency translation. COVID-19-Related Impacts reduced net income attributable to shareholders of FMC-AG & Co. KGaA in the amount of €108 M for the three months ended September 30, 2021 as compared to €13 M for the three months ended September 30, 2020, which was restated from €8 M during 2020 to include the look-back impact of excess mortality, primarily due to a significant decrease in government relief and advanced payments in the countries in which we operate (primarily in the U.S.) as compared to the three months ended September 30, 2020.

Basic earnings per share decreased by 23% (-22% at Constant Exchange Rates) primarily due to the decrease in net income attributable to shareholders of FMC-AG & Co. KGaA described above coupled with a negative impact from foreign currency translation. The average weighted number of shares outstanding for the period remained stable at 293.0 M on September 30, 2021 as compared to the prior year period (September 30, 2020: 292.8 M).

We employed 123,528 people (full-time equivalents) as of September 30, 2021 (September 30, 2020: 126,463). This 2% decrease is largely due to a labor shortage for employees in the health care sector of the North American Segment, including clinical staff, due to COVID-19 and a reduction in the number of temporary employees in the North America Segment that were hired to manage the COVID-19 pandemic.

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The following discussions pertain to our operating and reportable segments and the measures we use to manage these segments.

North America Segment

Performance indicators for the North America Segment

Change in %

 

For the three months ended

Currency

 

September 30,

translation

Constant

 

2021

2020

As reported

effects

Currency (1)

 

    

    

    

  

    

  

    

  

 

Revenue in € M

 

3,080

 

3,069

 

0%

(1%)

1%

Health care services

 

2,810

 

2,801

 

0%

(1%)

1%

Health care products

 

270

 

268

 

1%

0%

1%

Number of dialysis treatments

 

8,152,833

 

8,296,384

 

(2%)

  

Same Market Treatment Growth

 

(2.2%)

1.0%

  

Operating income in € M

 

446

514

(13%)

0%

(13%)

Operating income margin

14.5%

16.8%

  

 

 

  

(1) For further information on Constant Exchange Rates, see “II. Discussion of measures – Non–IFRS measures" above.

Revenue

Health care services revenue remained stable (+1% at Constant Exchange Rates) as a negative impact from foreign currency translation (-1%) was offset by contributions from acquisitions (+1%). Including the effects from COVID-19-Related Impacts and lower reimbursement for calcimimetics, organic growth remained stable as compared to the three months ended September 30, 2020.

Dialysis treatments decreased by 2% largely due to a reduction in same market treatments (-2%) and a decrease in dialysis days (-1%), partially offset by contributions from acquisitions (+1%). As of September 30, 2021, 209,651 patients, a decrease of 1% (September 30, 2020: 211,766), were treated in the 2,683 dialysis clinics (September 30, 2020: 2,620) that we own or operate in the North America Segment. COVID-19-Related Impacts contributed significantly to the decreases in treatments, Same Market Treatment Growth and patients.

Health care product revenue increased by 1% (+1% at Constant Exchange Rates) driven by higher sales of in-center disposables, partially offset by lower sales of products for acute care treatments.

Operating income

Operating income decreased by 13% (-13% at Constant Exchange Rates) primarily related to unfavorable effects from COVID-19-Related Impacts (in particular, the absence of further U.S. federal relief funding under the CARES Act in 2021), higher implicit price concessions and inflationary cost increases, partially offset by increased treatment volumes (including growth from acquisitions) as normalized for COVID-19 and a higher reimbursement rate driven by an increased number of patients with Medicare Advantage coverage and other payor mix effects.

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EMEA Segment

Performance indicators for the EMEA Segment

Change in %

For the three months ended

Currency

September 30,

translation

Constant

2021

2020

As reported

effects

Currency(1)

    

    

    

    

    

Revenue in € M

 

671

 

682

 

(2%)

0%

(2%)

Health care services

 

346

 

346

 

0%

0%

0%

Health care products

 

325

 

336

 

(3%)

0%

(3%)

Number of dialysis treatments

 

2,480,332

 

2,602,850

 

(5%)

Same Market Treatment Growth

 

(4.0%)

1.7%

Operating income in € M

 

79

99

(21%)

0%

(21%)

Operating income margin

11.7%

14.6%

  

 

  

 

  

(1)

For further information on Constant Exchange Rates, see “II. Discussion of measures – Non–IFRS measures" above.

Revenue

Health care service revenue remained stable as reported and at Constant Exchange Rates with the effect of closed or sold clinics (-1%) being offset by contributions from acquisitions (+1%). Including the effects from COVID-19-Related Impacts, organic growth remained stable as compared to the three months ended September 30, 2021.

Dialysis treatments decreased by 5% mainly due to a reduction in same market treatments (-4%) and the effect of closed or sold clinics (-1%). As of September 30, 2021, 65,336 patients, a decrease of 3% (September 30, 2020: 67,623), were treated at the 816 dialysis clinics (September 30, 2020: 805) that we own, operate or manage in the EMEA Segment. COVID-19-Related Impacts contributed significantly to the decreases in treatments, Same Market Treatment Growth and patients.

Health care product revenue decreased by 3% (-3% at Constant Exchange Rates) primarily due to lower sales of in-center disposables and peritoneal dialysis products, partially offset by higher sales of products for acute care treatment and machines for chronic treatment.

Operating income

Operating income decreased by 21% (-21% at Constant Exchange Rates) primarily due to inflationary cost increases, unfavorable effects from COVID-19-Related Impacts, an unfavorable mix within our product business and an unfavorable effect from the timing of export sales, partially offset by favorable foreign currency transaction effects and an increase in reimbursement rates in certain countries in the region.

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Asia-Pacific Segment

Performance indicators for the Asia-Pacific Segment

Change in %

For the three months ended

Currency

September 30,

translation

Constant

2021

2020

As reported

effects

Currency(1)

Revenue in € M

 

501

 

484

 

4%

1%

3%

Health care services

 

239

 

227

 

5%

(2%)

7%

Health care products

 

262

 

257

 

2%

3%

(1%)

Number of dialysis treatments

 

1,201,888

 

1,184,850

 

1%

Same Market Treatment Growth

 

3.4%

8.7%

Operating income in € M

 

86

97

(11%)

(1%)

(10%)

Operating income margin

17.2%

20.0%

  

 

  

 

  

(1)

For further information on Constant Exchange Rates, see “II. Discussion of measures – Non–IFRS measures" above.

Revenue

Health care services revenue increased by 5% (+7% at Constant Exchange Rates) largely as a result of an increase in organic growth, including a recovery in elective procedures, (+6%) and contributions from acquisitions (+1%), partially offset by a negative impact from foreign currency translation (-2%).

Dialysis treatments increased by 1% mainly due to growth in same market treatments (+3%), partially offset by the effect of closed or sold clinics (-1%) and lower contributions from acquisitions (-1%). As of September 30, 2021, 33,434 patients, an increase of 2% (September 30, 2020: 32,689) were treated at the 406 dialysis clinics (September 30, 2020: 397) that we own, operate or manage in the Asia-Pacific Segment.

Health care product revenue increased by 2% (-1% at Constant Exchange Rates) mainly due to a positive impact from foreign currency translation and higher sales of machines for chronic treatment, partially offset by lower sales of in-center disposables.

Operating income

Operating income decreased by 11% (-10% at Constant Exchange Rates) primarily due to unfavorable effects from COVID-19-Related Impacts and inflationary cost increases, partially offset by business growth, including the effect from a recovery of elective procedures.

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Latin America Segment

Performance indicators for the Latin America Segment

Change in %

For the three months ended

Currency

September 30,

translation

Constant

2021

2020

As reported

effects

Currency(1)

    

    

    

    

    

Revenue in € M

 

178

 

170

 

5%

(8%)

13%

Health care services

 

126

 

120

 

5%

(11%)

16%

Health care products

 

52

 

50

 

3%

(3%)

6%

Number of dialysis treatments

 

1,462,234

 

1,492,093

 

(2%)

Same Market Treatment Growth

 

(5.2%)

1.8%

Operating income in € M

 

4

11

(61%)

1%

(62%)

Operating income margin

2.4%

6.6%

 

  

 

  

(1)

For further information on Constant Exchange Rates, see “II. Discussion of measures – Non–IFRS measures" above.

Revenue

Health care service revenue increased by 5% (+16% at Constant Exchange Rates) primarily as a result of an increase in organic growth (+13%), contributions from acquisitions (+2%) and the effect of closed or sold clinics (1%), partially offset by a negative impact from foreign currency translation (-11%).

Dialysis treatments decreased by 2% mainly due to a decrease in same market treatments (-5%), partially offset by contributions from acquisitions (+2%) and the effect of closed or sold clinics (+1%). As of September 30, 2021, 36,451 patients, a decrease of 2% (September 30, 2020: 37,089), were treated at the 246 dialysis clinics (September 30, 2020: 251) that we own, operate or manage in the Latin America Segment. COVID-19-Related Impacts contributed significantly to the decreases in treatments, Same Market Treatment Growth and patients.

Health care product revenue increased by 3% (+6% at Constant Exchange Rates) primarily due to higher sales of in-center disposables, partially offset by lower sales of machines for chronic treatment.

Operating income

Operating income decreased by 61% (-62% at Constant Exchange Rates) primarily due to inflationary cost increases and unfavorable effects from COVID-19-Related Impacts.

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Nine months ended September 30, 2021 compared to nine months ended September 30, 2020

Consolidated financials

Performance indicators for the consolidated financial statements

Change in %

 

For the nine months ended

Currency

 

September 30,

translation

Constant

 

2021

2020

As reported

effects

Currency(1)

 

    

    

    

 

    

 

    

Revenue in € M

 

12,972

 

13,459

 

(4%)

(6%)

2%

Health care services

10,255

 

10,708

 

(4%)

(6%)

2%

Health care products

2,717

 

2,751

 

(1%)

(3%)

2%

Number of dialysis treatments

 

39,510,028

 

40,104,500

 

(1%)

Same Market Treatment Growth

 

(1.9%)

2.7%

Gross profit in € M

 

3,758

4,164

(10%)

(5%)

(5%)

Gross profit as a % of revenue

 

29.0%

30.9%

Selling general and administrative costs in € M

 

2,273

2,228

2%

5%

7%

Selling, general and administrative costs as a % of revenue

 

17.5%

16.6%

Operating income in € M

 

1,403

1,843

(24%)

(4%)

(20%)

Operating income margin

 

10.8%

13.7%

Net income attributable to shareholders of FMC-AG & Co. KGaA in € M

 

741

 

987

 

(25%)

(4%)

(21%)

Basic earnings per share in €

 

2.53

 

3.35

 

(25%)

(4%)

(21%)

(1)

For further information on Constant Exchange Rates, see “II. Discussion of measures – Non–IFRS measures" above.

Health care services revenue decreased by 4% compared to the nine months ended September 30, 2020 (+2% at Constant Exchange Rates) driven by a negative impact from foreign currency translation (-6%), partially offset by contributions from acquisitions (+1%) and an increase in organic growth (+1%) despite COVID-19-Related Impacts in certain of our operating segments, which are further described in the discussions of our segments below, and despite lower reimbursement for calcimimetics.

Dialysis treatments decreased by 1% as a result of a reduction in same market treatments (-2%), partially offset by contributions from acquisitions (+1%). COVID-19-Related Impacts contributed significantly to the decreases in treatments and Same Market Treatment Growth.

Health care product revenue decreased by 1% (+2% at Constant Exchange Rates) driven by a negative impact from foreign currency translation and lower sales of products for acute care treatments, partially offset by higher sales of machines for chronic treatment, home hemodialysis products and renal pharmaceuticals.

Gross profit decreased by 10% (-5% at Constant Exchange Rates) primarily driven by COVID-19-Related Impacts (in particular, the absence of U.S. further federal relief funding under the CARES Act in 2021), a negative impact from foreign currency translation, inflationary cost increases and higher personnel expense across all regions as well as higher implicit price concessions (North America Segment). These impacts were partially offset by a higher reimbursement rate driven by an increased number of patients with Medicare Advantage coverage and other payor mix effects as well as increased treatment volumes (including growth from acquisitions) as normalized for COVID-19, both within in the North America Segment.

Selling, general and administrative (“SG&A”) expense increased by 2% (+7% at Constant Exchange Rates) primarily driven by unfavorable effects from COVID-19 Impacts (all regions), unfavorable impacts from gains on the sale of vascular and cardiovascular clinics in the prior year (North America Segment), higher cloud computing costs  (North America Segment and Corporate), inflationary cost increases (all regions) and an unfavorable impact from provisions recorded in 2021 for value-added tax positions related to prior years as well as costs associated with the FME 25 Program at Corporate. The increase was partially offset by a positive impact from foreign currency translation across all regions.

Research and development expenses increased by 8% to €153 M from €141 M. The increase was largely driven by in-center, home and critical care program development as well as activities in the field of regenerative medicine and research and development activities at NxStage Medical, Inc., our subsidiary, partially offset by a positive impact from foreign currency translation.

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Income from equity method investees increased by 47% to €71 M from €48 M. The increase was primarily driven by a prior year impairment for a license held by VFMCRP based on an unfavorable clinical trial.

Operating income decreased by 24% (-20% at Constant Exchange Rates) largely driven by the decrease in gross profit as well as a negative impact from foreign currency translation, coupled with the increase in SG&A expenses, as discussed above.

Net interest expense decreased by 25% to €214 M from €284 M primarily due to lower interest rates on lease liabilities and refinancing activities (including the issuance of bonds at lower interest rates), a positive impact from foreign currency translation, lower variable interest rates, a lower debt level and the recognition of interest related to royalty receivables.

Income tax expense decreased by 24% to €274 M from €362 M. The effective tax rate remained relatively stable at 23.0% as compared to 23.2% for the same period of 2020.

Net income attributable to noncontrolling interests decreased by 17% (-11% at Constant Exchange Rates) to €174 M from €210 M due to lower earnings in entities in which we have less than 100% ownership and a positive impact from foreign currency translation.

Net income attributable to shareholders of FMC-AG & Co. KGaA decreased by 25% (-21% at Constant Exchange Rates) to €741 M from €987 M as a result of the combined effects of the items discussed above as well as a negative impact from foreign currency translation. COVID-19-Related Impacts reduced net income attributable to shareholders of FMC-AG & Co. KGaA in the amount of €262 M for the nine months ended September 30, 2021 as compared to €22 M for the first nine months ended September 30, 2020, which was restated from €7 M during 2020 to include the look-back impact of excess mortality, primarily due to a significant decrease in government relief and advanced payments in the countries in which we operate (primarily in the U.S.) as compared to the nine months ended September 30, 2021.

Basic earnings per share decreased by 25% (-21% at Constant Exchange Rates) primarily due to the decrease in net income attributable to shareholders of FMC-AG & Co. KGaA described above coupled with a negative impact from foreign currency translation, partially offset by a decrease in the average weighted number of shares outstanding for the period. The average weighted number of shares outstanding for the period decreased to approximately 292.9 M on September 30, 2021 (September 30, 2020: 294.5 M), primarily as a result of our share buy-back program which concluded on April 1, 2020, partially offset by the exercise of stock options.

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The following discussions pertain to our operating and reportable segments and the measures we use to manage these segments.

North America Segment

Performance indicators for the North America Segment

Change in %

 

For the nine months ended

Currency

 

September 30,

translation

Constant

 

2021

2020

As reported

effects

Currency(1)

 

    

    

    

 

    

 

    

Revenue in € M

 

8,931

 

9,495

 

(6%)

(6%)

0%

Health care services

 

8,148

 

8,660

 

(6%)

(6%)

0%

Health care products

 

783

 

835

 

(6%)

(6%)

0%

Number of dialysis treatments

 

24,158,943

 

24,600,114

(2%)

  

Same Market Treatment Growth

 

(2.5%)

2.1%

  

Operating income in € M

 

1,242

1,587

(22%)

(5%)

(17%)

Operating income margin

 

13.9%

16.7%

  

 

  

(1)

For further information on Constant Exchange Rates, see “II. Discussion of measures – Non–IFRS measures" above.

Revenue

Health care services revenue decreased by 6% (remained stable at Constant Exchange Rates) mainly due to a negative impact from foreign currency translation (-6%) and a negative impact from a prior year reversal of a revenue recognition adjustment for accounts receivable in legal dispute (-1%), partially offset by contributions from acquisitions (+1%). Including the effects from COVID-19-Related Impacts and lower reimbursement for calcimimetics, organic growth remained stable as compared to the nine months ended September 30, 2020.

Dialysis treatments decreased by 2% largely due to a reduction in same market treatments (-3%), partially offset by contributions from acquisitions (+1%). COVID-19-Related Impacts contributed significantly to the decreases in treatments and Same Market Treatment Growth.

Health care product revenue decreased by 6% (remained stable at Constant Exchange Rates) driven by a negative impact from foreign currency translation and lower sales of products for acute care treatments, partially offset by higher sales of in-center disposables, machines for chronic treatment and renal pharmaceuticals.

Operating income

Operating income decreased by 22% (-17% at Constant Exchange Rates) primarily related to unfavorable effects from COVID-19-Related Impacts (in particular, the absence of further U.S. federal relief funding under the CARES Act in 2021), inflationary cost increases, a negative impact from foreign currency translation, higher implicit price concessions and higher personnel expense, partially offset by a higher reimbursement rate driven by an increased number of patients with Medicare Advantage coverage and other payor mix effects as well as increased treatment volumes (including growth from acquisitions) as normalized for COVID-19.

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EMEA Segment

Performance indicators for the EMEA Segment

Change in %

 

For the nine months ended

Currency

 

September 30,

translation

Constant

 

2021

2020

As reported

effects

Currency(1)

 

    

    

    

 

    

 

    

Revenue in € M

 

2,033

 

2,048

 

(1%)

(2%)

1%

Health care services

 

1,020

 

1,028

 

(1%)

(2%)

1%

Health care products

 

1,013

 

1,020

 

(1%)

(2%)

1%

Number of dialysis treatments

 

7,384,018

 

7,659,111

(4%)

  

Same Market Treatment Growth

 

(3.5%)

2.3%

  

Operating income in € M

 

232

278

(17%)

(1%)

(16%)

Operating income margin

 

11.4%

13.6%

  

  

 

  

(1)

For further information on Constant Exchange Rates, see “II. Discussion of measures – Non–IFRS measures" above.

Revenue

Health care service revenue decreased by 1% (+1% at Constant Exchange Rates) largely as a result of a negative impact resulting from foreign currency translation (-2%) and the effect of closed or sold clinics (-1%), partially offset by contributions from acquisitions (+2%). Including the effects from COVID-19-Related Impacts, organic growth remained stable as compared to the nine months ended September 30, 2020.

Dialysis treatments decreased by 4% mainly due to a reduction in same market treatments (-4%) and the effect of closed or sold clinics (-1%), partially offset by contributions from acquisitions (+1%). COVID-19-Related Impacts contributed significantly to the decreases in treatments and Same Market Treatment Growth.

Health care product revenue decreased by 1% (+1% at Constant Exchange Rates) primarily due to lower sales of in-center disposables, a negative impact from foreign currency translation, partially offset by higher sales of machines for chronic treatment, home hemodialysis products, renal pharmaceuticals.

Operating income

Operating income decreased by 17% (-16% at Constant Exchange Rates) mainly due to inflationary cost increases, unfavorable effects from COVID-19-Related Impacts, unfavorable mix within our product business, an unfavorable effect from the timing of export sales and a revaluation gain of an investment in the prior year which did not repeat in 2021, partially offset by the absence of a prior year impairment for a license held by VFMCRP based on an unfavorable clinical trial and reimbursement rate increases in certain countries.

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Asia-Pacific Segment

Performance indicators for the Asia-Pacific Segment

Change in %

 

For the nine months ended

Currency

 

September 30,

translation

Constant

 

2021

2020

As reported

effects

Currency(1)

 

    

    

    

 

    

 

Revenue in € M

 

1,458

 

1,377

 

6%

(2%)

8%

Health care services

 

694

 

641

 

8%

(4%)

12%

Health care products

 

764

 

736

 

4%

0%

4%

Number of dialysis treatments

 

3,559,846

 

3,471,451

 

3%

Same Market Treatment Growth

 

5.5%

8.3%

Operating income in € M

 

256

237

8%

(2%)

10%

Operating income margin

 

17.5%

17.2%

 

 

(1)

For further information on Constant Exchange Rates, see “II. Discussion of measures – Non–IFRS measures" above.

Revenue

Health care services revenue increased by 8% (+12% at Constant Exchange Rates) largely as a result of an increase in organic growth, including a recovery in elective procedures, (+11%) and contributions from acquisitions (+2%), partially offset by a negative impact from foreign currency translation (-4%) and the effect of closed or sold clinics (-1%).

Dialysis treatments increased by 3% mainly due to growth in same market treatments (+6%) and contributions from acquisitions (+1%), partially offset by the effect of closed or sold clinics (-3%) and a decrease in dialysis days (-1%).

Health care product revenue increased by 4% (+4% at Constant Exchange Rates) mainly due to higher sales of machines for chronic treatment, in-center disposables and peritoneal dialysis products, partially offset by lower sales of products for acute care treatments.

Operating income

Operating income increased by 8% (+10% at Constant Exchange Rates) primarily due to business growth and a favorable effect from a recovery in elective procedures in certain countries in the region, partially offset by the prior year effect of a gain from the deconsolidation of clinics.

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Latin America Segment

Performance indicators for the Latin America Segment

Change in %

 

For the nine months ended 

Currency

 

September 30,

translation

Constant

 

2021

2020

As reported

effects

Currency(1)

 

    

    

    

    

    

 

Revenue in € M

 

508

 

508

 

0%

(16%)

16%

Health care services

 

364

 

360

 

1%

(18%)

19%

Health care products

 

144

 

148

 

(3%)

(11%)

8%

Number of dialysis treatments

 

4,407,221

 

4,373,824

 

1%

Same Market Treatment Growth

 

(1.0%)

3.4%

Operating income in € M

 

14

29

(53%)

1%

(54%)

Operating income margin

2.7%

5.7%

 

 

(1)

For further information on Constant Exchange Rates, see “II. Discussion of measures – Non–IFRS measures" above.

Revenue

Health care service revenue increased by 1% (+19% at Constant Exchange Rates) as a result of an increase in organic growth (+16%) and contributions from acquisitions (+4%), partially offset by a negative impact from foreign currency translation (-18%) and the effect of closed or sold clinics (-1%).

Dialysis treatments increased by 1% mainly due to contributions from acquisitions (+3%), partially offset by the effect of closed or sold clinics (-1%) and decrease in same market treatments (-1%). COVID-19-Related Impacts contributed significantly to the decrease in Same Market Treatment Growth.

Health care product revenue decreased by 3% (+8% at Constant Exchange Rates) primarily due to a negative impact from foreign currency translation, partially offset by higher sales of in-center disposables.

Operating income

Operating income decreased by 53% (-54% at Constant Exchange Rates) primarily due to inflationary cost increases, higher bad debt expense and unfavorable effects from COVID-19-Related Impacts, partially offset by favorable foreign currency transaction effects.

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Financial position

Sources of liquidity

Our primary sources of liquidity are typically cash provided by operating activities, cash provided by short-term debt, proceeds from the issuance of long-term debt and divestitures. We require this capital primarily to finance working capital needs, fund acquisitions, operate clinics, develop free-standing renal dialysis clinics and other health care facilities, purchase equipment for existing or new renal dialysis clinics and production sites, repay debt, pay dividends and repurchase shares, (see “Net cash provided by (used in) investing activities” and “Net cash provided by (used in) financing activities” below).

As of September 30, 2021, our available borrowing capacity under unutilized credit facilities amounted to approximately €2.8 billion, including €2.0 billion under the Syndicated Credit Facility, which we maintain as a backup for general corporate purposes.

In our long-term financial planning, we focus primarily on the net leverage ratio, a Non-IFRS measure, see “II. Discussion of measures – Non–IFRS measures – Net leverage ratio (Non-IFRS Measure)” above. The following table shows the reconciliation of adjusted EBITDA and net leverage ratio as of September 30, 2021 and December 31, 2020.

Reconciliation of adjusted EBITDA and net leverage ratio to the most directly comparable IFRS financial measure

in € M, except for net leverage ratio

    

September 30,

    

December 31,

2021

2020

Debt and lease liabilities (1)

 

13,227

 

12,380

Minus: Cash and cash equivalents

 

(1,562)

 

(1,082)

Net debt

 

11,665

 

11,298

Net income (2)

 

1,154

 

1,435

Income tax expense (2)

 

413

 

501

Interest income (2)

 

(59)

 

(42)

Interest expense (2)

 

357

 

410

Depreciation and amortization (2)

 

1,557

 

1,587

Adjustments(2), (3)

 

292

 

249

Adjusted EBITDA

 

3,714

 

4,140

Net leverage ratio

 

3.1

 

2.7

(1)

Debt includes the following balance sheet line items: short-term debt, current portion of long-term debt and long-term debt, less current portion.

(2)

Last twelve months.

(3)

Acquisitions and divestitures made for the last twelve months with a purchase price above a €50 M threshold as defined in the Syndicated Credit Facility (2021: €18 M), non-cash charges, primarily related to pension expense (2021: €49 M; 2020: €50 M), impairment loss (2021: €211 M; 2020: €199 M) and costs related to the FME25 program (2021: €14 M).

At September 30, 2021, we had cash and cash equivalents of €1,562 M (December 31, 2020: €1,082 M).

Free cash flow (Net cash provided by (used in) operating activities, after capital expenditures, before acquisitions and investments) is a Non-IFRS Measure and is reconciled to net cash provided by (used in) operating activities, the most directly comparable IFRS measure, see “II. Discussion of measures – Non–IFRS measures – Net cash provided by (used in) operating activities in % of revenue” and “ – Free cash flow in % of revenue (Non-IFRS Measure)” above.

The following table shows the cash flow performance indicators for the nine months ended September 30, 2021 and 2020 and reconciles free cash flow and free cash flow in percent of revenue to Net cash provided by (used in) operating activities and Net cash provided by (used in) operating activities in percent of revenue, respectively:

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Cash flow measures

in € M, except where otherwise specified

For the nine months ended 

September 30,

    

2021

    

2020

Revenue

 

12,972

 

13,459

Net cash provided by (used in) operating activities

 

1,820

 

3,649

Capital expenditures

 

(588)

 

(746)

Proceeds from sale of property, plant and equipment

 

27

 

10

Capital expenditures, net

 

(561)

 

(736)

Free cash flow

 

1,259

2,913

Net cash provided by (used in) operating activities in % of revenue

 

14.0%

27.1%

Free cash flow in % of revenue

 

9.7%

21.6%

Net cash provided by (used in) operating activities

In the first nine months of 2021, net cash provided by operating activities was €1,820 M, compared to €3,649 M in the first nine months of 2020. Net cash provided by operating activities in percent of revenue decreased to 14% for the first nine months of 2021 as compared to 27% for 2020. Net cash provided by (used in) operating activities is impacted by the profitability of our business, the development of our working capital, principally inventories, receivables and cash outflows that occur due to a number of specific items as discussed below. The decrease in net cash provided by operating activities was driven by nonrecurring payments received in the second quarter of 2020 under the Medicare Accelerated and Advance Payment Program in the amount of $1,050 M (€933 M) (as well as the recoupment of these advanced payments beginning in the second quarter of 2021 in the amount of $423 M (€354 M)), lower net income and the timing of certain other expense payments in 2021.

The profitability of our business depends significantly on reimbursement rates for our services. Approximately 79% of our revenue is generated by providing health care services, a major portion of which is reimbursed by either public health care organizations or private insurers. For the nine months ended September 30, 2021, approximately 28% of our consolidated revenue was attributable to reimbursements from U.S. federal health care benefit programs, such as Medicare and Medicaid. Legislative changes could affect Medicare reimbursement rates for a significant portion of the services we provide as well as the scope of Medicare coverage. A decrease in reimbursement rates or the scope of coverage could have a material adverse effect on our business, financial position and results of operations and thus on our capacity to generate cash flow. See “I. Overview,” above.

We intend to continue to address our current cash and financing requirements using net cash provided by operating activities, issuances under our commercial paper program (see note 5 of the notes to the consolidated financial statements (unaudited) included in this report) as well as from the use of our Accounts Receivable Facility and our  Syndicated Credit Facility and future credit agreements. In addition, to finance acquisitions or meet other needs, we expect to successfully complete long-term financing arrangements, such as the issuance of bonds.

Net cash provided by (used in) operating activities depends on the collection of accounts receivable. Commercial customers and government institutions generally have different payment cycles. Lengthening their payment cycles could have a material adverse effect on our capacity to generate cash flow. In addition, we could face difficulties enforcing and collecting accounts receivable under the legal systems of, and due to the economic conditions in, some countries. Accounts receivable balances, net of expected credit losses, represented Days Sales Outstanding (“DSO”) of 59 days at September 30, 2021 (December 31, 2020: 50 days).

DSO by segment is calculated by dividing the respective segment’s accounts and other receivables from unrelated parties and contract liabilities, converted to euro using the average exchange rate for the period presented, less any sales or value added tax included in the receivables, by the average daily sales for the last twelve months of that segment, converted to euro using the average exchange rate for the period. Receivables and revenues are adjusted for amounts related to acquisitions and divestitures made within the reporting period with a purchase price above a €50 M threshold, consistent with the respective adjustments in the determination of adjusted EBITDA (see “II. Discussion of measures — Non-IFRS measures — Net leverage ratio (Non-IFRS Measure)” above).

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The development of DSO by reporting segment is shown in the table below:

Development of days sales outstanding

in days

    

September

    

December 

    

    

30, 2021

    

31, 2020

    

Increase/decrease primarily driven by:

North America Segment

 

38

 

26

 

CMS’s recoupment of advanced payments received in 2020 under the Medicare Accelerated and Advance Payment Program and a shift in patients to Medicare Advantage plans which have longer payment cycles

EMEA Segment

 

89

 

90

 

Improvement of payment collections in the region

Asia-Pacific Segment

 

104

 

110

 

Improvement of payment collections in the region

Latin America Segment

 

143

 

134

 

Periodic delays in payment of public health care organizations in certain countries

FMC-AG & Co. KGaA average days sales outstanding

 

59

 

50

 

  

Due to the fact that a large portion of our reimbursement is provided by public health care organizations and private insurers, we expect that most of our accounts receivable will be collectible.

For information regarding litigation exposure as well as ongoing and future tax audits, see note 9 of the notes to the consolidated financial statements (unaudited) included in this report.

Net cash provided by (used in) investing activities

Net cash used in investing activities in the first nine months of 2021 was €773 M as compared to net cash used in investing activities of €881 M in the comparable period of 2020. The following table shows our capital expenditures for property, plant and equipment and capitalized development costs, net of proceeds from sales of property, plant and equipment as well as acquisitions, investments and purchases of intangible assets for the first nine months of 2021 and 2020:

Capital expenditures (net), acquisitions, investments, purchases of intangible assets and investments in debt securities

in € M

Acquisitions, investments,

purchases of intangible assets

and investments in debt

Capital expenditures, net

securities

For the nine months ended September 30,

    

2021

    

2020

    

2021

    

2020

North America Segment

 

296

 

396

 

278

 

92

EMEA Segment

 

64

 

86

 

22

 

35

Asia-Pacific Segment

 

28

 

56

 

1

 

18

Latin America Segment

 

27

 

19

 

7

 

30

Corporate

 

146

 

179

 

25

 

10

Total

 

561

 

736

 

333

 

185

The majority of our capital expenditures in the first nine months of 2021 was used for maintaining existing clinics and centers, capitalization of machines provided to our customers, capitalization of certain development costs, equipping new clinics and centers and IT implementation costs. Capital expenditures accounted for approximately 4% of total revenue in the first nine months of 2021 as compared to approximately 5% of total revenue during the same period in 2020.

Investments in the first nine months of 2021 were primarily comprised of purchases of equity investments and debt securities. In the first nine months of 2021, we received €121 M from divestitures. These divestitures were mainly related to the divestment of debt securities. Acquisitions in the first nine months of 2021 relate primarily to the purchase of dialysis clinics.

Investments in the first nine months of 2020 were primarily comprised of purchases of debt securities. In the first nine months of 2020, we received €40 M from divestitures. These divestitures were mainly related to the divestment of debt securities and certain research & development investments. Acquisitions in the first nine months of 2020 relate primarily to the purchase of dialysis clinics.

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Net cash provided by (used in) financing activities

In the first nine months of 2021, net cash used in financing activities was €667 M as compared to net cash used in financing activities of €2,095 M in the first nine months of 2020.

In the first nine months of 2021, cash was mainly used in the repayment of long-term debt (including the repayment at maturity of bonds in an aggregate principal amount of $650 M (€473 M as of the date of issuance) and €300 M as well as the early repayment of the USD term loan 2017 / 2022 in the amount of $1,050 M (€860 M as of the date of repayment) and EUR term loan 2017 / 2022 in the amount of €245 M, both under the Amended 2012 Credit Agreement), the repayment of lease liabilities (including lease liabilities from related parties), repayments of short-term debt from unrelated parties, payment of dividends, and distributions to noncontrolling interests, partially offset by proceeds from short-term debt (including borrowings under our commercial paper program) and proceeds from long-term debt (including proceeds from the issuance of bonds in an aggregate principal amount of $1,500 M (€1,227 M)). See note 6 of the notes to the consolidated financial statements (unaudited) included in this report.

In the first nine months of 2020, cash was mainly used in the repayment of short-term debt (including repayments under our commercial paper program and short-term debt from related parties) and long-term debt (including the repayment of Convertible Bonds at maturity in January 2020, the early repayment of the EUR term loan 2017 / 2020 under the Amended 2012 Credit Agreement (originally due on July 30, 2020) on May 29, 2020, the early repayment of bonds (originally due on October 15, 2020) on July 17, 2020), the repayment of lease liabilities, repayments of the Accounts Receivable Facility, shares repurchased as part of a share buy-back program and payment of dividends, as well as distributions to noncontrolling interests, partially offset by proceeds from long-term debt (including proceeds from the issuance of bonds in an aggregate principal amount of €1,250 M on May 29, 2020 and the issuance of bonds in an aggregate principal amount of $1,000 M on September 16, 2020) and short-term debt (including short-term debt from related parties).

On May 26, 2021, we paid a dividend with respect to 2020 of €1.34 per share (for 2019 paid in 2020 €1.20 per share). The total dividend payment was €392 M as compared to €351 M in the prior year.

Balance sheet structure

Total assets as of September 30, 2021 increased by 7% to €33.8 billion as compared to €31.7 billion at December 31, 2020. In addition to a 5% positive impact resulting from foreign currency translation, total assets increased by 2% to €32.4 billion from €31.7 billion primarily due to an increase in goodwill related to acquisitions, cash and cash equivalents, increased inventory related to a higher demand for specific products and higher safety inventory levels, increased trade accounts and other receivables from unrelated parties related to timing of payments as well as an increase in equity investments, partially offset by a decrease in prepaid expenses and other current assets.

Current assets as a percent of total assets remained consistent period over period at 24% for September 30, 2021 and December 31, 2020, respectively. The equity ratio, the ratio of our equity divided by total liabilities and shareholders’ equity, increased to 40% at September 30, 2021 as compared to 39% at December 31, 2020, primarily driven by an increase in equity from currency translation, a decrease in long term debt (including the current portion) and net income attributable to shareholders of FMC-AG & Co. KGaA, partially offset by an increase in short-term debt. ROIC decreased to 5.0% at September 30, 2021 as compared to 5.8% at December 31, 2020. Excluding the Impairment Loss as well as excluding both the Impairment Loss and the Effect from IFRS 16, ROIC was 5.5% and 6.2%, respectively, at September 30, 2021 (December 31, 2020: 6.6% and 7.5%, respectively). For further information on ROIC, see “II. Discussion of measures – Non–IFRS measures – Return on invested capital (ROIC) (Non-IFRS Measure)” above.

Report on post-balance sheet date events

Refer to note 12 in the notes to the consolidated financial statements (unaudited) included in this report.

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Recently issued accounting standards

Refer to note 1 of the notes to the consolidated financial statements (unaudited) included in this report for information regarding recently issued accounting standards.

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Financial Statements

Consolidated statements of income

(unaudited)

Consolidated statements of income

in € thousands ("THOUS"), except per share data

For the three months

For the nine months ended

ended September 30,

September 30,

    

Note

    

2021

    

2020

    

2021

    

2020

Revenue:

Health care services

 

2a

3,529,609

3,499,437

10,255,289

10,707,969

Health care products

 

2a

911,757

914,331

2,716,372

2,750,940

 

4,441,366

4,413,768

12,971,661

13,458,909

Costs of revenue:

 

 

 

  

 

  

Health care services

 

2,697,639

2,604,143

7,844,690

8,013,615

Health care products

 

476,510

450,453

1,369,104

1,281,713

3,174,149

3,054,596

9,213,794

9,295,328

Gross profit

 

1,267,217

1,359,172

3,757,867

4,163,581

Operating (income) expenses:

 

 

 

  

 

  

Selling, general and administrative

 

731,230

706,642

2,272,922

2,227,888

Research and development

 

2b

52,362

44,923

153,024

141,346

Income from equity method investees

 

11

(21,036)

(24,173)

(71,214)

(48,487)

Operating income

 

504,661

631,780

1,403,135

1,842,834

Other (income) expense:

 

 

 

  

 

  

Interest income

 

(15,590)

(7,531)

(44,811)

(27,469)

Interest expense

 

84,026

95,223

258,528

311,320

Income before income taxes

 

436,225

544,088

1,189,418

1,558,983

Income tax expense

 

104,990

124,342

274,131

361,952

Net income

 

331,235

419,746

915,287

1,197,031

Net income attributable to noncontrolling interests

 

58,191

66,244

174,720

209,838

Net income attributable to shareholders of FMC-AG & Co. KGaA

 

273,044

353,502

740,567

987,193

Basic earnings per share

 

2c

0.93

1.21

2.53

3.35

Diluted earnings per share

 

2c

0.93

1.21

2.53

3.35

See accompanying notes to the unaudited consolidated financial statements.

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Consolidated statements of comprehensive income

(unaudited)

Consolidated statements of comprehensive income

in € THOUS

For the three months

For the nine months

ended September 30,

ended September 30,

    

2021

    

2020

    

2021

    

2020

Net income

331,235

419,746

915,287

1,197,031

Other comprehensive income (loss):

Components that will not be reclassified to profit or loss:

Equity method investees - share of OCI

3,870

2,107

(45,384)

53,411

FVOCI equity investments

18,391

500

43,684

19,329

Actuarial gain (loss) on defined benefit pension plans

952

(24,617)

50,726

(19,417)

Income tax (expense) benefit related to components of other comprehensive income not reclassified

(5,247)

7,505

(27,207)

2,793

17,966

(14,505)

21,819

56,116

Components that may be reclassified subsequently to profit or loss:

Gain (loss) related to foreign currency translation

332,987

(637,272)

737,174

(809,871)

FVOCI debt securities

(1,542)

(595)

(8,610)

30,810

Gain (loss) related to cash flow hedges

801

(3,435)

(378)

3,183

Cost of hedging

128

2,203

(7)

2,416

Income tax (expense) benefit related to components of other comprehensive income that may be reclassified

14

341

1,546

(6,962)

332,388

(638,758)

729,725

(780,424)

Other comprehensive income (loss), net of tax

350,354

(653,263)

751,544

(724,308)

Total comprehensive income

681,589

(233,517)

1,666,831

472,723

Comprehensive income attributable to noncontrolling interests

86,609

14,526

237,620

159,144

Comprehensive income (loss) attributable to shareholders of FMC-AG & Co. KGaA

594,980

(248,043)

1,429,211

313,579

See accompanying notes to the unaudited consolidated financial statements.

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Consolidated balance sheets

(unaudited)

Consolidated balance sheets

in € THOUS, except share data

    

Note

    

September 30, 2021

    

December 31, 2020

Assets

Cash and cash equivalents

 

 

1,561,834

1,081,539

Trade accounts and other receivables from unrelated parties

 

 

3,323,596

3,153,045

Accounts receivable from related parties

 

3

 

126,263

91,438

Inventories

 

4

 

2,119,805

1,895,310

Other current assets

 

867,414

1,053,978

Total current assets

 

7,998,912

7,275,310

Property, plant and equipment

 

4,153,539

4,056,864

Right-of-use assets

 

 

4,237,677

4,129,888

Intangible assets

 

1,418,936

1,381,009

Goodwill

 

13,901,439

12,958,728

Deferred taxes

 

374,368

351,152

Investment in equity method investees

 

11

 

742,799

761,113

Other non-current assets

 

1,003,256

774,972

Total non-current assets

 

25,832,014

24,413,726

Total assets

 

33,830,926

31,689,036

Liabilities

 

Accounts payable to unrelated parties

 

706,385

731,993

Accounts payable to related parties

 

3

 

94,080

95,401

Current provisions and other current liabilities

 

3,885,142

3,517,076

Short-term debt from unrelated parties

 

5

 

1,324,290

62,950

Short-term debt from related parties

 

5

 

39,000

16,320

Current portion of long-term debt

 

6

 

651,910

1,008,359

Current portion of lease liabilities from unrelated parties

 

 

621,012

588,492

Current portion of lease liabilities from related parties

 

3

 

20,843

20,664

Income tax liabilities

 

149,635

118,389

Total current liabilities

 

7,492,297

6,159,644

Long-term debt, less current portion

 

6

 

6,571,222

6,800,101

Lease liabilities from unrelated parties, less current portion

 

 

3,895,350

3,763,775

Lease liabilities from related parties, less current portion

 

3

 

103,506

119,356

Non-current provisions and other non-current liabilities

 

678,464

931,590

Pension liabilities

 

705,824

718,502

Income tax liabilities

 

74,445

78,872

Deferred taxes

 

863,900

785,886

Total non-current liabilities

 

12,892,711

13,198,082

Total liabilities

 

20,385,008

19,357,726

Shareholders' equity:

 

 

Ordinary shares, no par value, €1.00 nominal value, 362,370,124 shares authorized, 292,994,209 issued and outstanding as of September 30, 2021 and 362,370,124 shares authorized, 292,876,570 issued and outstanding as of December 31, 2020

 

292,994

292,877

Additional paid-in capital

 

2,884,962

2,872,630

Retained earnings

 

10,567,699

10,254,913

Accumulated other comprehensive income (loss)

 

(1,515,975)

(2,205,340)

Total FMC-AG & Co. KGaA shareholders' equity

 

12,229,680

11,215,080

Noncontrolling interests

 

1,216,238

1,116,230

Total equity

 

13,445,918

12,331,310

Total liabilities and equity

 

33,830,926

31,689,036

See accompanying notes to the unaudited consolidated financial statements

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Consolidated statements of cash flows

(unaudited)

Consolidated statements of cash flows

in € THOUS

For the nine months ended

September 30, 

    

Note

    

2021

    

2020

Operating activities

Net income

915,287

1,197,031

Adjustments to reconcile net income to net cash provided by operating activities:

 

Depreciation, amortization and impairment loss

 

11

1,186,568

1,203,993

Change in deferred taxes, net

 

(12,828)

14,420

(Gain) loss from the sale of fixed assets, right-of-use assets, investments and divestitures

 

(25,845)

(45,542)

Income from equity method investees

 

11

(71,214)

(48,487)

Interest expense, net

 

213,717

283,851

Changes in assets and liabilities, net of amounts from businesses acquired:

 

Trade accounts and other receivables from unrelated parties

 

(60,469)

1,703

Inventories

 

(153,642)

(313,517)

Other current and non-current assets

 

131,972

(49,603)

Accounts receivable from related parties

 

(29,410)

16,870

Accounts payable to related parties

 

(5,740)

17,371

Accounts payable to unrelated parties, provisions and other current and non-current liabilities

 

(132,830)

1,469,513

Income tax liabilities

 

285,759

223,852

Received dividends from investments in equity method investees

57,680

89,204

Paid interest

 

(255,162)

(308,906)

Received interest

 

44,718

27,469

Paid income taxes

 

(268,110)

(130,251)

Net cash provided by (used in) operating activities

 

1,820,451

3,648,971

Investing activities

 

Purchases of property, plant and equipment and capitalized development costs

 

(588,198)

(745,609)

Acquisitions and investments, net of cash acquired, and purchases of intangible assets

 

(270,580)

(155,181)

Investments in debt securities

(62,640)

(30,146)

Proceeds from sale of property, plant and equipment

 

26,964

10,125

Proceeds from divestitures

 

2,565

12,735

Proceeds from sale of debt securities

118,451

27,482

Net cash provided by (used in) investing activities

 

(773,438)

(880,594)

Financing activities

 

Proceeds from short-term debt from unrelated parties

 

1,722,084

211,411

Repayments of short-term debt from unrelated parties

 

(462,529)

(1,058,160)

Proceeds from short-term debt from related parties

 

49,446

581,711

Repayments of short-term debt from related parties

 

(26,766)

(517,600)

Proceeds from long-term debt

 

1,231,756

2,109,272

Repayments of long-term debt

 

(2,067,228)

(1,540,548)

Repayments of lease liabilities from unrelated parties

 

(502,679)

(513,000)

Repayments of lease liabilities from related parties

 

(15,487)

(15,023)

Increase (decrease) of accounts receivable facility

 

(379,545)

Proceeds from exercise of stock options

 

6,005

10,466

Purchase of treasury stock

 

(365,988)

Dividends paid

 

(392,455)

(351,170)

Distributions to noncontrolling interests

 

(250,185)

(288,256)

Contributions from noncontrolling interests

 

41,189

20,991

Net cash provided by (used in) financing activities

 

(666,849)

(2,095,439)

Effect of exchange rate changes on cash and cash equivalents

 

100,131

(82,002)

Cash and cash equivalents:

 

Net increase (decrease) in cash and cash equivalents

 

480,295

590,936

Cash and cash equivalents at beginning of period

 

1,081,539

1,007,723

Cash and cash equivalents at end of period

 

1,561,834

1,598,659

See accompanying notes to the unaudited consolidated financial statements.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Consolidated statements of shareholders´ equity

For the nine months ended September 30, 2021 and 2020 (unaudited)

Consolidated statements of shareholders' equity

in € THOUS, except share data

    

Ordinary shares

Treasury stock

    

Accumulated  other comprehensive income

Total FMC-AG

Additional

Foreign

Cash 

 & Co. KGaA

Number of

No par

Number of

paid in

Retained

currency 

flow 

Fair value

shareholders' 

Noncontrolling

   

Note

   

shares

   

value

   

shares

   

Amount

   

capital

   

earnings 

   

translation

   

hedges

   

Pensions

   

changes

   

 equity

   

 interests

   

Total equity

Balance at December 31, 2019

304,436,876

304,437

(6,107,629)

(370,502)

3,607,662

9,454,861

(664,987)

(10,460)

(363,098)

11,957,913

1,269,324

13,227,237

Proceeds from exercise of options and related tax effects

192,049

192

9,874

10,066

10,066

Purchase of treasury stock

(5,687,473)

(365,988)

(365,988)

(365,988)

Dividends paid

(351,170)

(351,170)

(351,170)

Purchase/ sale of noncontrolling interests

 

(24,225)

(24,225)

(72,643)

(96,868)

Contributions from/ to noncontrolling interests

(193,174)

(193,174)

Put option liabilities

10

(47,064)

(47,064)

(47,064)

Transfer of cumulative gains/losses of equity investments

11,072

(11,072)

Net Income

 

987,193

987,193

209,838

1,197,031

Other comprehensive income (loss) related to:

 

Foreign currency translation

 

(764,864)

344

7,184

(1,841)

(759,177)

(50,694)

(809,871)

Cash flow hedges, net of related tax effects

 

3,990

3,990

3,990

Pensions, net of related tax effects

(14,328)

(14,328)

(14,328)

Fair value changes

95,901

95,901

95,901

Comprehensive income

 

313,579

159,144

472,723

Balance at September 30, 2020

 

304,628,925

304,629

(11,795,102)

(736,490)

3,593,311

10,054,892

(1,429,851)

(6,126)

(370,242)

82,988

11,493,111

1,162,651

12,655,762

Balance at December 31, 2020

 

292,876,570

292,877

2,872,630

10,254,913

(1,936,713)

(7,706)

(346,282)

85,361

11,215,080

1,116,230

12,331,310

Proceeds from exercise of options and related tax effects

 

117,639

117

5,308

5,425

5,425

Dividends paid

(392,455)

(392,455)

(392,455)

Purchase/ sale of noncontrolling interests

7,024

7,024

55,854

62,878

Contributions from/ to noncontrolling interests

 

(193,466)

(193,466)

Put option liabilities

10

(34,605)

(34,605)

(34,605)

Transfer of cumulative gains/losses of equity investments

(721)

721

Net Income

 

740,567

740,567

174,720

915,287

Other comprehensive income (loss) related to:

 

Foreign currency translation

 

681,051

(459)

(8,466)

2,148

674,274

62,900

737,174

Cash flow hedges, net of related tax effects

 

(234)

(234)

(234)

Pensions, net of related tax effects

36,236

36,236

36,236

Fair value changes

(21,632)

(21,632)

(21,632)

Comprehensive income

 

1,429,211

237,620

1,666,831

Balance at September 30, 2021

 

292,994,209

292,994

2,884,962

10,567,699

(1,255,662)

(8,399)

(318,512)

66,598

12,229,680

1,216,238

13,445,918

See accompanying notes to the unaudited consolidated financial statements.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

1.    The Company and basis of presentation

The Company

Fresenius Medical Care AG & Co. KGaA (“FMC-AG & Co. KGaA” or the “Company”), a German partnership limited by shares (Kommanditgesellschaft auf Aktien) registered in the commercial registry of Hof an der Saale under HRB 4019, with its business address at Else-Kröner-Str. 1, 61352 Bad Homburg v. d. Höhe, is the world’s leading provider of products and services for individuals with renal diseases, based on publicly reported revenue and number of patients treated. The Company provides dialysis care and related services to persons who suffer from End-Stage Kidney Disease (“ESKD”), as well as other health care services. The Company also develops, manufactures and distributes a wide variety of health care products. The Company’s health care products include hemodialysis machines, peritoneal dialysis cyclers, dialyzers, peritoneal dialysis solutions, hemodialysis concentrates, solutions and granulates, bloodlines, renal pharmaceuticals, systems for water treatment, acute cardiopulmonary and apheresis products. The Company supplies dialysis clinics it owns, operates or manages with a broad range of products and also sells dialysis products to other dialysis service providers. The Company’s other health care services include value and risk-based arrangements, pharmacy services, vascular, cardiovascular and endovascular specialty services as well as ambulatory surgery center services, physician nephrology and cardiology services and ambulant treatment services.

In these unaudited notes, “FMC-AG & Co. KGaA,” “Company” or the “Group” refers to the Company or the Company and its subsidiaries on a consolidated basis, as the context requires. “Fresenius SE” and “Fresenius SE & Co. KGaA” refer to Fresenius SE & Co. KGaA. “Management AG” and the “General Partner” refer to Fresenius Medical Care Management AG which is FMC-AG & Co. KGaA’s general partner and is wholly owned by Fresenius SE. “Management Board” refers to the members of the management board of Management AG and, except as otherwise specified, “Supervisory Board” refers to the supervisory board of FMC-AG & Co. KGaA. The term “North America Segment” refers to the North America operating segment, the term “EMEA Segment” refers to the Europe, Middle East and Africa operating segment, the term “Asia-Pacific Segment” refers to the Asia-Pacific operating segment, and the term “Latin America Segment” refers to the Latin America operating segment. For further discussion of the Company’s operating and reportable segments, see note 11.

Basis of presentation

The consolidated financial statements and other financial information included in the Company’s quarterly reports furnished under cover of Form 6-K and its Annual Report on Form 20-F are prepared solely in accordance with International Financial Reporting Standards (“IFRS”) as issued by the International Accounting Standards Board (“IASB”), using the euro as the Company's reporting and functional currency.

The quarterly financial report is prepared in accordance with International Accounting Standard ("IAS") 34, Interim Financial Reporting, and contains condensed financial statements, in that it does not include all of the notes that would be required in a complete set of financial statements, but rather selected explanatory notes. However, the primary financial statements are presented in the format consistent with the consolidated financial statements as presented in the Company’s Annual Report on Form 20-F for the year ended December 31, 2020 (the “2020 Form 20-F”) in accordance with IAS 1, Presentation of Financial Statements.

The consolidated financial statements at September 30, 2021 and for the three- and nine-months ended September 30, 2021 and 2020 contained in this report are unaudited and should be read in conjunction with the consolidated financial statements contained in the Company's 2020 Form 20-F. The preparation of consolidated financial statements in conformity with IFRS requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Such financial statements reflect all adjustments that, in the opinion of management, are necessary for a fair presentation of the results of the periods presented. All such adjustments are of a normal recurring nature.

The Company applies IAS 29, Financial Reporting in Hyperinflationary Economies, in its Argentine and Lebanese subsidiaries due to inflation in these countries. The table below details the specific inputs used to calculate the loss on net monetary position on a country-specific basis for the nine months ended September 30, 2021.

Inputs for the calculation of losses on net monetary positions

    

Argentina

    

Lebanon

 

Date of IAS 29 initial application

July 1, 2018

December 31, 2020

Consumer price index

Índice de precios al consumidor

Central Administration of Statistics

Index at September 30, 2021

528.5

614.0

Calendar year increase

37

%  

116

%

Loss on net monetary position in € THOUS

20,168

2,639

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

The effective tax rate of 24.1% and 23.0% for the three and nine months ended September 30, 2021 is recognized on the basis of the best estimate made for the weighted average annual income tax rate expected for the full year and applied to income before income taxes reported in the interim financial statements.

In the consolidated statements of income, "Selling, general and administrative" expenses related to the amortization of internally developed software and other costs in the amount of €7,872 and €25,144 for the three- and nine-month periods ended September 30, 2020, respectively, have been reclassified to “Costs of Revenue” to conform to the current year’s presentation.

In the consolidated statements of income, "(Gain) loss related to divestitures of Care Coordination activities" in the amount of €3,236 and €32,160 for the three- and nine-month periods ended September 30, 2020, respectively, which were previously presented separately, have been included within “Selling, general and administrative” expenses to conform to the current year’s presentation.

The results of operations for the three and nine months ended September 30, 2021 are not necessarily indicative of the results of operations for the year ending December 31, 2021.

On November 2, 2021, the Management Board authorized the issuance of the Company’s unaudited consolidated financial statements.

New accounting pronouncements

Recently implemented accounting pronouncements

The Company has prepared its consolidated financial statements at and for the nine months ended September 30, 2021 in conformity with IFRS that must be applied for the interim periods starting on or after January 1, 2021. In the nine months ended September 30, 2021, there were no recently implemented accounting pronouncements that had a material effect on the Company’s consolidated financial statements.

Recent accounting pronouncements not yet adopted

The IASB issued the following new standards which are relevant for the Company:

IFRS 17, Insurance Contracts

In May 2017, the IASB issued IFRS 17, Insurance Contracts. IFRS 17 establishes principles for the recognition, measurement, presentation and disclosure related to the issuance of insurance contracts. IFRS 17 replaces IFRS 4, Insurance Contracts, which was brought in as an interim standard in 2004. IFRS 4 permitted the use of national accounting standards for the accounting of insurance contracts under IFRS. As a result of the varied application for insurance contracts there was a lack of comparability among peer groups. IFRS 17 eliminates this diversity in practice by requiring all insurance contracts to be accounted for using current values. The frequent updates to the insurance values are expected to provide more useful information to users of financial statements. On June 25, 2020, the IASB issued amendments to IFRS 17, which among others, defer the effective date to fiscal years beginning on or after January 1, 2023. Earlier adoption is permitted for entities that have also adopted IFRS 9, Financial Instruments and IFRS 15, Revenue from Contracts with Customers. The Company is evaluating the impact of IFRS 17 on the consolidated financial statements.

Amendments to IAS 1, Classification of Liabilities as Current and Non-current

In January 2020, the IASB issued Amendments to IAS 1, Classification of Liabilities as Current and Non-current. The amendments clarify under which circumstances debt and other liabilities with an uncertain settlement date should be classified as current or non-current. Among others, the amendments state that liabilities shall be classified depending on rights that exist at the end of the reporting period and define under which conditions liabilities might be settled by cash, other economic resources or equity.

On July 15, 2020, the IASB deferred the effective date by one year to provide companies with more time to implement any classification changes resulting from the amendments. The Amendments to IAS 1 are now effective for annual reporting periods beginning on or after January 1, 2023. Earlier adoption is permitted. The Company is currently evaluating the impact of the amendments to IAS 1 on the consolidated financial statements.

In the Company’s view, no other pronouncements issued by the IASB are expected to have a material impact on the consolidated financial statements.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

2.    Notes to the consolidated statements of income

a)    Revenue

The Company has recognized the following revenue in the consolidated statements of income for the three and nine months ended September 30, 2021 and 2020:

Revenue

in € THOUS

For the three months ended

September 30, 

2021

2020

Revenue from

Revenue from

 

contracts with

 

Other 

 

contracts with

 

Other

    

customers

    

revenue

    

Total

    

customers

    

revenue

    

Total

Health care services

3,424,066

105,543

3,529,609

3,427,404

72,033

3,499,437

Health care products

 

889,217

 

22,540

911,757

 

889,872

24,459

914,331

Total

 

4,313,283

 

128,083

4,441,366

 

4,317,276

96,492

4,413,768

For the nine months ended

September 30, 

2021

2020

Revenue from

Revenue from

contracts with

Other

contracts with

Other

    

customers

    

revenue

    

Total

    

customers

    

revenue

    

Total

Health care services

 

9,962,881

292,408

10,255,289

 

10,477,945

 

230,024

10,707,969

Health care products

 

2,629,629

 

86,743

2,716,372

 

2,675,220

75,720

2,750,940

Total

 

12,592,510

 

379,151

12,971,661

 

13,153,165

305,744

13,458,909

b)    Research and development expenses

Research and development expenses of €153,024 for the nine months ended September 30, 2021 (for the nine months ended September 30, 2020: €141,346) included research and non-capitalizable development costs as well as depreciation and amortization expenses related to capitalized development costs of €4,380 (for the nine months ended September 30, 2020: €3,777).

c)    Earnings per share

The following table contains reconciliations of the numerators and denominators of the basic and diluted earnings per share computations for the three and nine months ended September 30, 2021 and 2020:

Reconciliation of basic and diluted earnings per share

in € THOUS, except share and per share data

For the three months ended

For the nine months ended

September 30, 

September 30, 

    

2021

    

2020

    

2021

    

2020

Numerator:

 

  

 

  

 

  

 

  

Net income attributable to shareholders of FMC-AG & Co. KGaA

 

273,044

 

353,502

 

740,567

 

987,193

Denominators:

 

 

 

 

Weighted average number of shares outstanding

 

292,986,093

 

292,817,296

292,926,425

294,458,296

Potentially dilutive shares

 

144,984

 

251,979

136,811

230,751

Basic earnings per share

 

0.93

 

1.21

2.53

3.35

Diluted earnings per share

 

0.93

 

1.21

2.53

3.35

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

d)    Impacts of severe acute respiratory syndrome coronavirus 2 (“COVID-19”)

The Company provides life-sustaining dialysis treatments and other critical healthcare services and products to patients. The Company's patients need regular and frequent dialysis treatments, or else they face significant adverse health consequences that could result in hospitalization or death. To be able to continue care for its patients in light of COVID-19, the Company determined that it needed to implement a number of measures, both operational and financial, to maintain an adequate workforce, to protect its patients and employees through expanded personal protective equipment protocols and to develop surge capacity for patients suspected or confirmed to have COVID-19. Additionally, the Company experienced a loss of revenue due to the pandemic in certain parts of its business, partially offset by increased demand for its services and products in other parts. Various governments in regions in which the Company operates have provided economic assistance programs to address the consequences of the pandemic on companies and support healthcare providers and patients.

The Company received government grants in various regions in which it operates in the amount of €20,416 and €224,449 for the nine months ended September 30, 2021 and September 30, 2020, respectively. In addition to the costs incurred which are eligible for government funding in various countries, the Company has been affected by impacts that COVID-19 had on the global economy and financial markets as well as effects related to lockdowns.

The remaining amounts of U.S. government grants received under the Coronavirus Aid, Relief, and Economic Security Act of 2020 (“CARES Act”) recorded in deferred income were $6,799 (€5,872) and $22,473 (€18,314) at September 30, 2021 and December 31, 2020, respectively. In 2020, the Company also recorded a contract liability for advance payments received under the CMS Accelerated and Advance Payment program within current provisions and other current liabilities and non-current provisions and other non-current liabilities. Contract liabilities related to the CMS Accelerated and Advance Payment program were $622,984 (€538,029) and $1,046,025 (€852,437) as of September 30, 2021 and December 31, 2020, respectively.

3.    Related party transactions

Fresenius SE is the Company’s largest shareholder and owns 32.2% of the Company’s outstanding shares at September 30, 2021. The Else Kröner-Fresenius-Stiftung is the sole shareholder of Fresenius Management SE, the general partner of Fresenius SE, and has sole power to elect the supervisory board of Fresenius Management SE. The Company has entered into certain arrangements for services and products with Fresenius SE or its subsidiaries and with certain of the Company’s equity method investees as described in item a) below. The arrangements for leases with Fresenius SE or its subsidiaries are described in item b) below. The Company’s terms related to the receivables or payables for these services, leases and products are generally consistent with the normal terms of the Company’s ordinary course of business transactions with unrelated parties and the Company believes that these arrangements reflect fair market terms. The Company utilizes various methods to verify the commercial reasonableness of its related party arrangements. Financing arrangements as described in item c) below have agreed-upon terms which are determined at the time such financing transactions occur and reflect market rates at the time of the transaction. The relationship between the Company and its key management personnel who are considered to be related parties is described in item d) below. The Company’s related party transactions are settled through Fresenius SE’s cash management system where appropriate.

a)    Service agreements and products

The Company is party to service agreements with Fresenius SE and certain of its affiliates (collectively “Fresenius SE Companies”) to receive services, including, but not limited to: administrative services, management information services, employee benefit administration, insurance, information technology services, tax services and treasury management services. The Company also provides central purchasing services to Fresenius SE Companies. These related party agreements generally have a duration of 1 to 5 years and are renegotiated on an as needed basis when the agreement comes due. The Company also provides administrative services to one of its equity method investees.

The Company sells products to Fresenius SE Companies and purchases products from Fresenius SE Companies and equity method investees. In addition, Fresenius Medical Care Holdings, Inc. (“FMCH”) purchases heparin supplied by Fresenius Kabi USA, Inc. (“Kabi USA”), through an independent group purchasing organization (“GPO”). Kabi USA is an indirect, wholly-owned subsidiary of Fresenius SE. The Company has no direct supply agreement with Kabi USA and does not submit purchase orders directly to Kabi USA. FMCH acquires heparin from Kabi USA, through the GPO contract, which was negotiated by the GPO at arm’s length on behalf of all members of the GPO.

In December 2010, the Company and Galenica Ltd. (now known as Vifor Pharma Ltd.) formed the renal pharmaceutical company Vifor Fresenius Medical Care Renal Pharma Ltd., an equity method investee of which the Company owns 45%. The Company has entered into exclusive supply agreements to purchase certain pharmaceuticals from, as well as certain exclusive distribution agreements with, Vifor Fresenius Medical Care Renal Pharma Ltd.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

Under the Centers for Medicare and Medicaid Services’ (“CMS”) Comprehensive End-Stage Renal Disease (“ESRD”) Care Model, the Company and participating physicians formed entities known as ESRD Seamless Care Organizations (“ESCOs”) as part of a payment and care delivery model that seeks to deliver better health outcomes for Medicare ESKD patients while lowering CMS’s costs. The Company entered into participation/service agreements with these ESCOs, which are accounted for as equity method investees.

Below is a summary, including the Company’s receivables from and payables to the indicated parties, resulting from the above described transactions with related parties.

Service agreements and products with related parties

in € THOUS

    

For the nine months ended

  

For the nine months ended

  

  

September 30, 2021

September 30, 2020

  

September 30, 2021

  

December 31, 2020

    

Sales of

  

Purchases of

  

Sales of

  

Purchases of

  

  

  

  

goods and

goods and

goods and

  

goods and

  

Accounts

  

Accounts

  

Accounts

  

Accounts

    

services

  

services

    

services

  

services

  

receivable

  

payable

  

receivable

  

payable

Service agreements (1)

 

  

 

  

 

  

 

  

 

  

 

  

 

  

 

  

Fresenius SE

 

158

 

27,988

 

182

 

19,965

 

141

 

4,036

 

251

 

3,655

Fresenius SE affiliates

 

3,163

 

75,676

 

2,997

 

77,560

 

678

 

6,956

 

824

 

7,944

Equity method investees

 

39,664

 

 

13,793

 

 

110,387

 

 

74,935

 

Total

 

42,985

 

103,664

 

16,972

 

97,525

 

111,206

 

10,992

 

76,010

 

11,599

Products

 

 

 

 

 

 

 

 

Fresenius SE

1

Fresenius SE affiliates

35,136

22,991

31,883

34,040

10,244

5,194

10,330

5,732

Equity method investees

 

 

344,397

 

 

365,682

 

 

73,511

 

 

57,207

Total

 

35,137

 

367,388

 

31,883

 

399,722

 

10,244

 

78,705

 

10,330

 

62,939

(1) In addition to the above shown accounts payable, accrued expenses for service agreements with related parties amounted to 8,217 and €5,368 at September 30, 2021 and December 31, 2020, respectively.

b)    Lease agreements

In addition to the above-mentioned product and service agreements, the Company is a party to real estate lease agreements with Fresenius SE Companies, which mainly include leases for the Company’s corporate headquarters in Bad Homburg, Germany and production sites in Schweinfurt and St. Wendel, Germany. The leases have maturities up to the end of 2029.

Below is a summary resulting from the above described lease agreements with related parties.

Lease agreements with related parties

in € THOUS

For the nine months ended September 30, 2021

For the nine months ended September 30, 2020

September 30, 2021

  

December 31, 2020

Interest

Lease

Interest

Lease

Right-of-use

  

Lease

Right-of-use

  

Lease

  

Depreciation

  

expense

  

expense (1)

  

Depreciation

  

expense

  

expense (1)

  

asset

liability

asset

liability

Fresenius SE

5,937

493

859

6,033

556

627

52,131

52,839

58,073

58,610

Fresenius SE affiliates

9,842

833

38

9,946

972

263

70,162

71,510

80,188

81,410

Total

15,779

1,326

897

15,979

1,528

890

122,293

124,349

138,261

140,020

(1) Short-term leases and expenses relating to variable lease payments as well as low value leases are exempted from balance sheet recognition.

c)    Financing

The Company receives short-term financing from and provides short-term financing to Fresenius SE. The Company also utilizes Fresenius SE’s cash management system for the settlement of certain intercompany receivables and payables with its subsidiaries and other related parties. As of September 30, 2021 and December 31, 2020, the Company had accounts receivable from Fresenius SE related to short-term financing in the amount of €4,398 and €1,037, respectively. The interest rates for these cash management arrangements are set on a daily basis and are based on the then-prevailing overnight reference rate, with a floor of zero, for the respective currencies.

On August 19, 2009, the Company borrowed €1,500 from the General Partner on an unsecured basis at 1.335%. The loan repayment has been extended periodically and is currently due on August 19, 2022 with an interest rate of 0.6%. On November 28, 2013, the Company borrowed an additional €1,500 with an interest rate of 1.875% from the General Partner. The loan repayment has been extended periodically and is currently due on November 23, 2021 with an interest rate of 1.025%.

At September 30, 2021, the Company borrowed from Fresenius SE €36,000 on an unsecured basis at an interest rate of 0.6%. At December 31, 2020, the Company borrowed from Fresenius SE in the amount of €13,320 on an unsecured basis at an interest rate of 0.825%. For further information on this loan agreement, see note 5.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

d)    Key management personnel

Due to the Company’s legal form of a German partnership limited by shares, the General Partner holds a key management position within the Company. In addition, as key management personnel, members of the Management Board and the Supervisory Board, as well as their close relatives, are considered related parties.

The Company’s Articles of Association provide that the General Partner shall be reimbursed for any and all expenses in connection with management of the Company’s business, including remuneration of the members of the General Partner’s supervisory board and the members of the Management Board. The aggregate amount reimbursed to the General Partner was €25,885 and €21,282 for its management services during the nine months ended September 30, 2021 and 2020, respectively. As of September 30, 2021 and December 31, 2020, the Company had accounts receivable from the General Partner in the amount of €415 and €4,061, respectively. As of September 30, 2021 and December 31, 2020, the Company had accounts payable to the General Partner in the amount of €4,383 and €20,863, respectively.

4.   Inventories

At September 30, 2021 and December 31, 2020, inventories consisted of the following:

Inventories

in € THOUS

    

September 30, 

    

December 31, 

 

2021

 

2020

Finished goods

 

1,292,707

1,088,311

Health care supplies

 

473,885

473,164

Raw materials and purchased components

 

237,954

232,422

Work in process

 

115,259

101,413

Inventories

 

2,119,805

1,895,310

5.    Short-term debt

At September 30, 2021 and December 31, 2020, short-term debt consisted of the following:

Short-term debt

in € THOUS

    

September 30, 

    

December 31, 

 

2021

 

2020

Commercial paper program

 

845,198

19,995

Borrowings under lines of credit

 

478,543

42,442

Other

 

549

513

Short-term debt from unrelated parties

 

1,324,290

62,950

Short-term debt from related parties (see note 3 c)

 

39,000

16,320

Short-term debt

 

1,363,290

79,270

The Company and certain consolidated entities operate a multi-currency notional cash pooling management system. The Company met the conditions to offset balances within this cash pool for reporting purposes. At September 30, 2021 and December 31, 2020, cash and borrowings under lines of credit in the amount of €871,424 and €998,044, respectively, were offset under this cash management system.

Commercial paper program

The Company maintains a commercial paper program under which short-term notes of up to €1,000,000 can be issued. At September 30, 2021, the outstanding commercial paper amounted to €845,000 (December 31, 2020: €20,000). For further information on the commercial paper program, see note 12.

Short-term debt from related parties

The Company and FMCH are parties to an unsecured loan agreement, as borrowers, with Fresenius SE, as lender, under which the Company and FMCH may request and receive one or more short-term advances up to an aggregate amount of €600,000 until maturity on July 31, 2022. For further information on short-term debt from related parties, see note 3 c).

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

6.    Long-term debt

As of September 30, 2021 and December 31, 2020, long-term debt consisted of the following:

Long-term debt

in € THOUS

September 30, 

    

December 31, 

    

2021

    

2020

Amended 2012 Credit Agreement

 

1,162,342

Bonds

 

6,991,003

6,408,118

Other

 

232,129

238,000

Long-term debt

 

7,223,132

7,808,460

Less current portion

 

(651,910)

(1,008,359)

Long-term debt, less current portion

 

6,571,222

6,800,101

Credit facilities

On July 1, 2021, the Company entered into a new €2,000,000 sustainability-linked syndicated revolving credit facility with a group of 34 core relationship banks (“Syndicated Credit Facility”). The Syndicated Credit Facility has a term of five years plus two one-year extension options and can be drawn in different currencies. The Syndicated Credit Facility is currently undrawn and will be used as a back-up line for general corporate purposes. The Syndicated Credit Facility replaces the existing $900,000 and €600,000 revolving credit facilities in the Amended 2012 Credit Agreement. A sustainability component has been embedded in the credit facility, with the margin increasing or decreasing depending on the company's sustainability performance.

The following table shows the available and outstanding amounts under the Amended 2012 Credit Agreement at December 31, 2020:

Amended 2012 Credit Agreement (1) - maximum amount available and balance outstanding

in THOUS

 

Maximum amount available

 

Balance outstanding

    

December 31, 2020

    

December 31, 2020 (2)

    

    

Revolving credit USD 2017 / 2022

$

900,000

733,436

$

Revolving credit EUR 2017 / 2022

600,000

600,000

USD term loan 2017 / 2022 (3)

$

1,110,000

904,572

$

1,110,000

904,572

EUR term loan 2017 / 2022 (3)

259,000

259,000

259,000

259,000

2,497,008

1,163,572

(1) The Amended 2012 Credit Agreement was terminated on July 1st, 2021 and was replaced by the Syndicated Credit Facility.
(2) Amounts shown are excluding debt issuance costs.
(3) USD term loan 2017 / 2022 in the amount of $1,050,000 (€860,444 as of the date of repayment) and EUR term loan 2017 / 2022 in the amount of €245,000 originally due on July 31, 2022 were repaid on May 20, 2021.

Bonds

The bonds issued by Fresenius Medical Care US Finance, Inc. in the amount of $650,000 (€472,889 as of the date of issuance on February 3, 2011) were redeemed at maturity on February 15, 2021. Additionally, the bonds issued by Fresenius Medical Care Finance VII S.A. on February 3, 2011 in the amount of €300,000 were redeemed at maturity on February 15, 2021.

On May 18, 2021, the Company issued bonds in two tranches with an aggregate principal amount of $1,500,000 (€1,227,295 as of the date of issuance):

bonds of $850,000 (€695,467 as of the date of issuance) with a maturity of 5 years and 7 months and a coupon rate of 1.875%, and
bonds of $650,000 (€531,828 as of the date of issuance) with a maturity of 10 years and 7 months and a coupon rate of 3.000%.

The proceeds have been used for general corporate purposes, including the refinancing of outstanding indebtedness.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

Accounts Receivable Facility

On August 11, 2021, the Company amended and restated the Accounts Receivable Facility, extending it until August 11, 2024. The maximum capacity, $900,000 (€768,049 at August 11, 2021), will remain unchanged under the restated Accounts Receivable Facility.

The following table shows the available and outstanding amounts under the Accounts Receivable Facility at September 30, 2021 and December 31, 2020:

Accounts Receivable Facility - maximum amount available and balance outstanding

in THOUS

 

Maximum amount available

 

Balance outstanding

    

September 30, 2021 (1)

    

September 30, 2021 (2)

    

Accounts Receivable Facility

$

900,000

777,269

$

 

Maximum amount available

 

Balance outstanding

    

December 31, 2020 (1)

    

December 31, 2020 (2)

    

Accounts Receivable Facility

$

900,000

733,437

$

(1) Subject to availability of sufficient accounts receivable meeting funding criteria.
(2) Amounts shown are excluding debt issuance costs.

The Company also had letters of credit outstanding under the Accounts Receivable Facility in the amount of $12,532 and $12,522 (€10,823 and €10,205) at September 30, 2021 and December 31, 2020, respectively. These letters of credit are not included above as part of the balance outstanding at September 30, 2021 and December 31, 2020; however, the letters reduce available borrowings under the Accounts Receivable Facility.

7.    Capital management

As of September 30, 2021 and December 31, 2020 total equity in percent of total assets was 39.7% and 38.9%, respectively, and debt and lease liabilities in percent of total assets was 39.1% and 39.1%, respectively.

The Company’s financing structure and business model are reflected in the investment grade ratings. The Company is rated investment grade by Moody’s, Standard & Poor’s and Fitch.

Rating (1)

    

Standard & Poor´s

    

Moody´s

    

Fitch 

Corporate credit rating

 

BBB

 

Baa3

 

BBB-

Outlook

 

stable

 

stable

 

stable

(1) A rating is not a recommendation to buy, sell or hold securities of the Company, and may be subject to suspension, change or withdrawal at any time by the assigning rating agency.

8.    Share-based plans

On July 26, 2021, 891,682 performance shares with a total fair value of €57,585 were granted under the Fresenius Medical Care AG & Co. KGaA Long Term Incentive Plan 2019. This amount will be amortized over the three-year vesting period. The weighted average fair value per performance share at the grant date was €64.58.

9.    Commitments and contingencies

Legal and regulatory matters

The Company is routinely involved in claims, lawsuits, regulatory and tax audits, investigations and other legal matters arising, for the most part, in the ordinary course of its business of providing health care services and products. Legal matters that the Company currently deems to be material or noteworthy are described below. The Company records its litigation reserves for certain legal proceedings and regulatory matters to the extent that the Company determines an unfavorable outcome is probable and the amount of loss can be reasonably estimated. For the other matters described below, the Company believes that the loss is not probable and/or the loss or range of possible losses cannot be reasonably estimated at this time. The outcome of litigation and other legal matters is always difficult to predict accurately and outcomes that are not consistent with the Company’s view of the merits can occur. The Company believes that it has valid defenses to the legal matters pending against it and is defending itself vigorously. Nevertheless, it is possible that the resolution

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

of one or more of the legal matters currently pending or threatened could have a material adverse effect on its business, results of operations and financial condition.

Beginning in 2012, the Company received certain communications alleging conduct in countries outside the United States that might violate the Foreign Corrupt Practices Act or other anti-bribery laws. The Company conducted investigations with the assistance of outside counsel and, in a continuing dialogue, advised the Securities and Exchange Commission (“SEC”) and the United States Department of Justice (“DOJ”) about these investigations. The DOJ and the SEC also conducted their own investigations, in which the Company cooperated.

In the course of this dialogue, the Company identified and reported to the DOJ and the SEC, and took remedial actions with respect to, conduct that resulted in the DOJ and the SEC seeking monetary penalties including disgorgement of profits and other remedies. This conduct revolved principally around the Company's products business in countries outside the United States.

On March 29, 2019, the Company entered into a non-prosecution agreement (“NPA”) with the DOJ and a separate agreement with the SEC intended to resolve fully and finally the U.S. government allegations against the Company arising from the investigations. Both agreements included terms starting August 2, 2019. The DOJ NPA is scheduled to terminate on August 2, 2022 and the dismissal of the SEC Order is scheduled to occur on November 30, 2022. The Company paid a combined total in penalties and disgorgement of approximately $231,715 (€205,854) to the DOJ and the SEC in connection with these agreements. The entire amount paid to the DOJ and the SEC was reserved for in charges that the Company recorded in 2017 and 2018 and announced in 2018. As part of the resolution, the Company agreed to certain self-reporting obligations and to retain an independent compliance monitor. Due to COVID-19 pandemic restrictions, the monitorship program faced certain delays, but the Company is working to complete all its obligations under the resolution with the DOJ and SEC in 2022.

In 2015, the Company self-reported to the German prosecutor conduct with a potential nexus to Germany and continues to cooperate with government authorities in Germany in their review of the conduct that prompted the Company's and United States government investigations.

Since 2012, the Company has made and continues to make further significant investments in its compliance and financial controls and in its compliance, legal and financial organizations. The Company's remedial actions included separation from those employees responsible for the above-mentioned conduct. The Company is dealing with post-FCPA review matters on various levels. The Company continues to be fully committed to compliance with the FCPA and other applicable anti-bribery laws.

FMCH's insurers agreed to the settlement in 2017 of personal injury litigation related to FMCH's Granuflo® and Naturalyte® acid concentrate products and funded $220,000 (€179,284) of the settlement fund under a reciprocal reservation of rights. FMCH accrued a net expense of $60,000 (€48,896) in connection with the settlement, including legal fees and other anticipated costs. Following the settlement, FMCH's insurers in the AIG group initiated litigation against FMCH seeking to be indemnified by FMCH for their $220,000 (€179,284) outlay and FMCH initiated litigation against the AIG group to recover defense and indemnification costs FMCH had borne. National Union Fire Insurance v. Fresenius Medical Care, 2016 Index No. 653108 (Supreme Court of New York for New York County).

Discovery in the litigation is complete. The AIG group abandoned certain of its coverage claims and submitted expert reports on damages asserting that, if AIG prevails on all its remaining claims, it should recover $60,000 (€48,896). FMCH contests all of AIG’s claims and submitted expert reports supporting rights to recover $108,000 (€88,012) from AIG, in addition to the $220,000 (€179,284) already funded. A trial date has not been set in the matter.

In August 2014, FMCH received a subpoena from the United States Attorney’s Office (“USAO”) for the District of Maryland inquiring into FMCH's contractual arrangements with hospitals and physicians involving contracts relating to the management of in-patient acute dialysis services. On August 27, 2020, after the USAO declined to pursue the matter by intervening, the United States District Court for Maryland unsealed a 2014 relator’s qui tam complaint that gave rise to the investigation. The relator thereafter served the complaint and proceeded on his own in part by filing an amended complaint making broad allegations about financial relationships between FMCH and nephrologists. FMCH’s motion to dismiss the amended complaint remains pending. On October 5, 2021, the District Court for Maryland granted FMCH’s motion to transfer the case to the United States District Court for Massachusetts, where the litigation continues. Flanagan v. Fresenius Medical Care Holdings, Inc., 1:21-cv-11627-DPW.

In July 2015, the Attorney General for Hawaii issued a civil complaint under the Hawaii False Claims Act alleging a conspiracy pursuant to which certain Liberty Dialysis subsidiaries of FMCH overbilled Hawaii Medicaid for Liberty's Epogen® administrations to Hawaii Medicaid patients during the period from 2006 through 2010, prior to the time of FMCH's acquisition of Liberty. Hawaii v. Liberty Dialysis—Hawaii, LLC et al., Case No. 15-1-1357-07 (Hawaii 1st Circuit). The State alleges that Liberty acted unlawfully by relying on incorrect and unauthorized billing guidance provided to Liberty by Xerox State Healthcare LLC, which acted as Hawaii's contracted administrator for its Medicaid program reimbursement operations during the relevant period. With discovery concluded, the State has specified that its demands for relief relate to $7,700 (€6,275) in overpayments on approximately twenty thousand “claims” submitted by Liberty. After prevailing on motions by Xerox to preclude it from doing so, FMCH is pursuing third-party claims for contribution and indemnification

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

against Xerox. The State's False Claims Act complaint was filed after Liberty initiated an administrative action challenging the State's recoupment of alleged overpayments from sums currently owed to Liberty. The civil litigation and administrative action are proceeding in parallel. Trial in the civil litigation has been postponed because of COVID-19-related administrative issues and has been rescheduled for August 2022.

On August 31, 2015, FMCH received a subpoena under the False Claims Act from the United States Attorney for the District of Colorado (Denver) inquiring into FMCH’s participation in and management of dialysis facility joint ventures in which physicians are partners. FMCH has cooperated in the Denver USAO investigation, which has come to focus on purchases and sales of minority interests in ongoing outpatient facilities between FMCH and physician groups.

On November 25, 2015, FMCH received a subpoena under the False Claims Act from the United States Attorney for the Eastern District of New York (Brooklyn) also inquiring into FMCH's involvement in certain dialysis facility joint ventures in New York. On September 26, 2018, the Brooklyn USAO declined to intervene on the qui tam complaint filed under seal in 2014 that gave rise to this investigation. CKD Project LLC v. Fresenius Medical Care, 2014 Civ. 06646 (E.D.N.Y. November 12, 2014). The District Court unsealed the complaint, allowing the relator to proceed on its own. On August 3, 2021, the District Court granted FMCH’s motion to dismiss the relator’s amended complaint, dismissed the case with prejudice and declined to allow further amendment. On August 27, 2021, the relator appealed to the United States Court of Appeals for the Second Circuit.

Beginning October 6, 2015, the United States Attorney for the Eastern District of New York (Brooklyn) has led an investigation, through subpoenas issued under the False Claims Act, of utilization and invoicing by FMCH’s subsidiary Azura Vascular Care for a period beginning after FMCH’s acquisition of American Access Care LLC ("AAC") in October 2011. FMCH is cooperating in the Brooklyn USAO investigation. The Brooklyn USAO has indicated that its investigation is nationwide in scope and is focused on whether certain access procedures performed at Azura facilities were medically unnecessary and whether certain physician assistants employed by Azura exceeded their permissible scope of practice. Allegations against AAC arising in districts in Connecticut, Florida and Rhode Island relating to utilization and invoicing were settled in 2015.

On November 18, 2016, FMCH received a subpoena under the False Claims Act from the United States Attorney for the Eastern District of New York (Brooklyn) seeking documents and information relating to the operations of Shiel Medical Laboratory, Inc. (“Shiel”), which FMCH acquired in October 2013. In the course of cooperating in the investigation and preparing to respond to the subpoena, FMCH identified falsifications and misrepresentations in documents submitted by a Shiel salesperson that relate to the integrity of certain invoices submitted by Shiel for laboratory testing for patients in long term care facilities. On February 21, 2017, FMCH terminated the employee and notified the United States Attorney of the termination and its circumstances. The terminated employee's conduct is expected to result in demands for FMCH to refund overpayments and to pay related penalties under applicable laws, but the monetary value of such payment demands cannot yet be reasonably estimated. FMCH contends that, under the asset sale provisions of its 2013 Shiel acquisition, it is not responsible for misconduct by the terminated employee or other Shiel employees prior to the date of the acquisition. The Brooklyn USAO continues to investigate a range of issues involving Shiel, including allegations of improper compensation (kickbacks) to physicians, and has disclosed that multiple sealed qui tam complaints underlie the investigation.

On December 12, 2017, FMCH sold to Quest Diagnostics certain Shiel operations that are the subject of this Brooklyn subpoena, including the misconduct reported to the United States Attorney. Under the Quest Diagnostics sale agreement, FMCH retains responsibility for responding to the Brooklyn investigation and for liabilities arising from conduct occurring after its 2013 acquisition of Shiel and prior to its sale of Shiel to Quest Diagnostics. FMCH is cooperating in the investigation.

In May 2017, the United States Attorney for the Middle District of Tennessee (Nashville) issued identical subpoenas to FMCH and two subsidiaries under the False Claims Act concerning FMCH's retail pharmaceutical business. The subpoenas, and the subsequent investigation in which FMCH cooperated, were apparently predicated on but were not limited to a complaint filed on November 6, 2015 by two former employees. United States ex rel. Keasler et al. v. Fresenius Medical Care Rx, LLC, 03:15-Civ-01183 (M.D. Tenn. 2015). On August 17, 2021, the District Court dismissed the case without prejudice after the Nashville USAO declined to intervene and the relators elected not to proceed.

On March 12, 2018, Vifor Fresenius Medical Care Renal Pharma Ltd. and Vifor Fresenius Medical Care Renal Pharma France S.A.S. (collectively, “VFMCRP”) (see note 3), filed a complaint for patent infringement against Lupin Atlantis Holdings SA and Lupin Pharmaceuticals Inc. (collectively, “Lupin”), and Teva Pharmaceuticals USA, Inc. (“Teva”) in the U.S. District Court for the District of Delaware (Case 1:18-cv-00390-MN, “first complaint”). The patent infringement action is in response to Lupin and Teva’s filings of Abbreviated New Drug Applications ("ANDA") with the U.S. Food and Drug Administration ("FDA") for generic versions of Velphoro®. Velphoro® is protected by patents listed in the FDA’s Approved Drug Products with Therapeutic Equivalence Evaluations, also known as the Orange Book. The complaint was filed within the 45-day period provided for under the Hatch-Waxman legislation, and triggered a stay of FDA approval of the ANDAs for 30 months (specifically, up to July 29, 2020 for Lupin’s ANDA; and August 6, 2020 for Teva’s ANDA. In response to another ANDA being filed for a generic Velphoro®, VFMCRP filed a complaint for patent infringement against Annora Pharma Private Ltd., and Hetero Labs Ltd. (collectively, “Annora”), in the U.S. District Court for the District of Delaware on

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

December 17, 2018. The case was settled among the parties, thus terminating the court action on August 4, 2020. On May 26, 2020, VFMCRP filed a further complaint for patent infringement against Lupin in the U.S. District Court for the District of Delaware (Case No. 1:20-cv-00697-MN) in response to Lupin’s ANDA for a generic version of Velphoro® and on the basis of a newly listed patent in the Orange Book. On July 6, 2020, VFMCRP filed an additional complaint for patent infringement against Lupin and Teva in the U.S. District Court for the District of Delaware (Case No. 1:20-cv-00911-MN, “second complaint”) in response to the companies’ ANDA for generic versions of Velphoro® and on the basis of two newly listed patents in the Orange Book.

All cases involving Lupin as defendant were settled among the parties, thus terminating the corresponding court actions on December 18, 2020. In relation to the remaining pending cases and the defendant Teva, trial took place for the first complaint between January 19 and 22, 2021. Another patent newly listed in the Orange Book was added to the second complaint on June 23, 2021. Trial is scheduled for the second complaint for June 2022.

On December 17, 2018, FMCH was served with a subpoena under the False Claims Act from the United States Attorney for the District of Colorado (Denver) as part of an investigation of allegations against DaVita, Inc. involving transactions between FMCH and DaVita. The subject transactions include sales and purchases of dialysis facilities, dialysis-related products and pharmaceuticals, including dialysis machines and dialyzers, and contracts for certain administrative services. FMCH has cooperated in the investigation.

On June 28, 2019, certain FMCH subsidiaries filed a complaint against the United States seeking to recover monies owed to them by the United States Department of Defense under the Tricare program, and to preclude Tricare from recouping monies previously paid. Bio-Medical Applications of Georgia, Inc., et al. v. United States, CA 19-947, United States Court of Federal Claims. Tricare provides reimbursement for dialysis treatments and other medical care provided to members of the military services, their dependents and retirees. The litigation challenges unpublished administrative actions by Tricare administrators reducing the rate of compensation paid for dialysis treatments provided to Tricare beneficiaries based on a recasting or “crosswalking” of codes used and followed in invoicing without objection for many years. Tricare administrators have acknowledged the unpublished administrative action and declined to change or abandon it. On July 8, 2020, the U.S. government filed its answer (and confirmed their position) and litigation is continuing. The court has not yet set a date for trial in this matter. FMCH has imposed a constraint on revenue otherwise recognized from the Tricare program that it believes, in consideration of facts currently known, sufficient to account for the risk of this litigation.

On August 21, 2020, FMCH was served with a subpoena from the United States Attorney for the District of Massachusetts requesting information and documents related to urgent care centers that FMCH owned, operated, or controlled as part of its ChoiceOne and Medspring urgent care operations prior to its divestiture of and exit from that line of business in 2018. The subpoena appears to be related to an ongoing investigation of alleged upcoding in the urgent care industry, which has resulted in certain published settlements under the federal False Claims Act. FMCH is cooperating in the investigation.

On March 25, 2021, FMCH received a grand jury subpoena issued from the United States District Court for the Northern District of Texas (Dallas). The subpoena sought documents comprising communications between employees of FMCH and DaVita and partially overlaps in content the 2018 Denver subpoena. The Dallas subpoena is part of a separate investigation by the Anti-Trust Division of the Department of Justice into possible employee “no poaching” and similar agreements to refrain from competition and is related to the indictments in United States v. Surgical Care Affiliates, 3:2021-Cr-0011 (N.D. Tex.) and United States v. DaVita, Inc. et al., 1:21-cr00229 (D.Col.). The unnamed co-conspirators described in the Surgical Care Affiliates and DaVita indictments do not include FMCH, the Company, or any of their employees. FMCH understands that it has completed production of material sought under the subpoena.

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, insurance plans and suppliers, 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 marketing and distribution of such products, the operation of manufacturing facilities, laboratories, dialysis clinics and other health care facilities, and environmental and occupational health and safety. With respect to its development, manufacture, marketing and distribution of medical products, if such compliance is not maintained, the Company could be subject to significant adverse regulatory actions by the FDA and comparable regulatory authorities outside the U.S. These regulatory actions could include warning letters or other enforcement notices from the FDA, and/or comparable foreign regulatory authority which may require the Company to expend significant time and resources in order to implement appropriate corrective actions. If the Company does not address matters raised in warning letters or other enforcement notices to the satisfaction of the FDA and/or comparable regulatory authorities outside the U.S., these regulatory authorities could take additional actions, including product recalls, injunctions against the distribution of products or operation of manufacturing plants, civil penalties, seizures of the Company’s products and/or criminal prosecution. FMCH completed remediation efforts with respect to one pending FDA warning letter and is awaiting confirmation as to whether the letter is now closed. The Company must also comply with the laws of the United States, including the federal Anti-Kickback Statute, the federal False Claims Act, the federal Stark Law, the federal Civil Monetary Penalties Law and the federal Foreign Corrupt Practices Act as well as other federal

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

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 whistleblower actions. By virtue of this regulatory environment, the Company’s business activities and practices are subject to extensive review by regulatory authorities and private parties, and continuing audits, 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 whistleblower actions, which are initially filed under court seal.

The Company operates many facilities and handles the personal data ("PD") of its patients and beneficiaries throughout the United States and other parts of the world and engages with other business associates to help it carry out its health care activities. 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 and its business associates. On occasion, the Company or its business associates may experience a breach under the Health Insurance Portability and Accountability Act Privacy Rule and Security Rules, the EU’s General Data Protection Regulation and or other similar laws ("Data Protection Laws") when there has been impermissible use, access, or disclosure of unsecured PD or when the Company or its business associates neglect to implement the required administrative, technical and physical safeguards of its electronic systems and devices, or a data breach that results in impermissible use, access or disclosure of personal identifying information of its employees, patients and beneficiaries. On those occasions, the Company must comply with applicable breach notification requirements.

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 its employees. On occasion, the Company may identify instances where employees or other agents deliberately, recklessly or inadvertently contravene the Company’s policies or violate applicable law. The actions of such persons may subject the Company and its subsidiaries to liability under the Anti-Kickback Statute, the Stark Law, the False Claims Act, Data Protection Laws, the Health Information Technology for Economic and Clinical Health Act and the Foreign Corrupt Practices Act, among other laws and comparable state laws or laws of other countries.

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.

In Germany, the tax audits for the years 2006 through 2009 have been substantially completed. The German tax authorities have indicated a re-qualification of dividends received in connection with intercompany mandatorily redeemable preferred shares into fully taxable interest payments for these and subsequent years until 2013. The Company has defended its position and will avail itself of appropriate remedies. The Company is also subject to ongoing and future tax audits in the U.S., Germany and other jurisdictions in the ordinary course of business. Tax authorities routinely pursue adjustments to the Company’s tax returns and disallowances of claimed tax deductions. When appropriate, the Company defends these adjustments and disallowances and asserts its own claims. A successful tax related claim against the Company or any of its subsidiaries could have a material adverse effect upon its business, financial condition and results of operations.

Other than those individual contingent liabilities mentioned above, the current estimated amount of the Company's other known individual contingent liabilities is immaterial.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

10.    Financial instruments

The following tables show the carrying amounts and fair values of the Company’s financial instruments at September 30, 2021 and December 31, 2020:

Carrying amount and fair value of financial instruments

in € THOUS

September 30, 2021

 

Carrying amount

 

Fair value

Amortized

Not

    

 cost

    

FVPL

    

FVOCI

    

 classified

    

Total

    

Level 1

    

Level 2

    

Level 3

Cash and cash equivalents

 

905,826

656,008

1,561,834

655,856

152

Trade accounts and other receivables from unrelated parties

 

3,248,256

75,340

3,323,596

Accounts receivable from related parties

 

126,263

126,263

Derivatives - cash flow hedging instruments

 

625

625

625

Derivatives - not designated as hedging instruments

 

49,608

49,608

49,608

Equity investments

 

249,890

121,457

371,347

246,525

66,021

58,801

Debt securities

 

78,420

289,688

368,108

362,966

5,142

Other financial assets

 

140,750

124,938

265,688

Other current and non-current assets

 

140,750

377,918

411,145

125,563

1,055,376

Financial assets

 

4,421,095

1,033,926

411,145

200,903

6,067,069

Accounts payable to unrelated parties

 

706,385

706,385

Accounts payable to related parties

 

94,080

94,080

Short-term debt

 

1,363,290

1,363,290

Long-term debt

 

7,223,132

7,223,132

7,256,777

232,129

Lease liabilities

 

4,640,711

4,640,711

Derivatives - cash flow hedging instruments

 

3,995

3,995

3,995

Derivatives - not designated as hedging instruments

 

13,443

13,443

13,443

Variable payments outstanding for acquisitions

 

51,247

51,247

51,247

Put option liabilities

 

966,926

966,926

966,926

Other financial liabilities

 

936,703

936,703

Other current and non-current liabilities

 

936,703

64,690

970,921

1,972,314

Financial liabilities

 

10,323,590

64,690

5,611,632

15,999,912

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

Carrying amount and fair value of financial instruments

in € THOUS

December 31, 2020

 

Carrying amount

 

Fair value

Amortized

Not

    

cost

    

FVPL

    

FVOCI

    

classified

    

Total

    

Level 1

    

Level 2

    

Level 3

Cash and cash equivalents

 

781,029

300,510

1,081,539

300,367

143

Trade accounts and other receivables from unrelated parties

 

3,080,770

72,275

3,153,045

Accounts receivable from related parties

 

91,438

91,438

Derivatives - cash flow hedging instruments

 

1,130

1,130

1,130

Derivatives - not designated as hedging instruments

 

5,367

5,367

5,367

Equity investments

 

191,739

56,911

248,650

11,911

48,221

188,518

Debt securities

 

103,387

297,954

401,341

396,392

4,949

Other financial assets

 

195,926

108,830

304,756

Other current and non-current assets

 

195,926

300,493

354,865

109,960

961,244

Financial assets

 

4,149,163

601,003

354,865

182,235

5,287,266

Accounts payable to unrelated parties

 

731,993

731,993

Accounts payable to related parties

 

95,401

95,401

Short-term debt

 

79,270

79,270

Long-term debt

 

7,808,460

7,808,460

6,764,681

1,404,640

Lease liabilities

4,492,287

4,492,287

Derivatives - cash flow hedging instruments

 

1,667

1,667

1,667

Derivatives - not designated as hedging instruments

 

39,281

39,281

39,281

Variable payments outstanding for acquisitions

 

66,359

66,359

66,359

Put option liabilities

 

882,422

882,422

882,422

Other financial liabilities (1)

 

800,714

800,714

Other current and non-current liabilities

 

800,714

105,640

884,089

1,790,443

Financial liabilities

 

9,515,838

105,640

5,376,376

14,997,854

(1)    Other financial liabilities have been revised for the prior year to conform to the current year's presentation.

Derivative and non-derivative financial instruments are categorized in the following three-tier fair value hierarchy that reflects the significance of the inputs in making the measurements. Level 1 inputs are quoted prices for similar instruments in active markets. Level 2 is defined as using valuation models (i.e. mark-to-model) with input factors that are inputs other than quoted prices in active markets that are directly or indirectly observable. Level 3 is defined as using valuation models (i.e. mark-to-model) with input factors that are unobservable inputs for which little or no market data exists, therefore requiring the Company to develop its own assumptions. Fair value information is not provided for financial instruments, if the carrying amount is a reasonable estimate of fair value due to the relatively short period of maturity of these instruments. This includes cash and cash equivalents measured at amortized costs, trade accounts and other receivables from unrelated parties, accounts receivable from related parties, other financial assets as well as accounts payable to unrelated parties, accounts payable to related parties, short-term debt and other financial liabilities. At September 30, 2021, the Company transferred its investment in Humacyte with a carrying amount of €158,551 from Level 3 to Level 1, after Humacyte completed its merger with Alpha Healthcare Acquisition Corporation, a special purpose acquisition company. The shares in Alpha Healthcare Acquisition Corporation (now called Humacyte) received by the Company as a result of this merger and in a contemporaneous private placement are quoted in an active market.Transfers between levels of the fair value hierarchy have not occurred as of December 31, 2020. The Company accounts for transfers at the end of the reporting period.

Derivative financial instruments

In order to manage the risk of currency exchange rate and interest rate fluctuations, the Company enters into various hedging transactions by means of derivative instruments with highly rated financial institutions. The Company primarily enters into foreign exchange forward contracts and interest rate swaps. In certain instances, the Company enters into derivative contracts that do not qualify for hedge accounting but are utilized for economic purposes (“economic hedges”). The Company does not use financial instruments for trading purposes.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

Non-derivative financial instruments

The significant methods and assumptions used for the classification and measurement of non-derivative financial instruments are as follows:

The Company assessed its business models and the cash flow characteristics of its financial assets. The vast majority of the non-derivative financial assets are held in order to collect the contractual cash flows. The contractual terms of the financial assets allow the conclusion that the cash flows represent payment of principle and interest only. Trade accounts and other receivables from unrelated parties, Accounts receivable from related parties and Other financial assets are consequently measured at amortized cost.

Cash and cash equivalents are comprised of cash funds and other short-term investments. Cash funds are measured at amortized cost. Short-term investments are highly liquid and readily convertible to known amounts of cash. Short-term investments are measured at fair value through profit or loss (“FVPL”). The risk of changes in fair value is insignificant.

Equity investments are not held for trading. At initial recognition the Company elected, on an instrument-by-instrument basis, to represent subsequent changes in the fair value of individual strategic investments in OCI. If equity instruments are quoted in an active market, the fair value is based on price quotations at the period-end-date. From time to time the Company engages external valuation firms to determine the fair value of Level 3 equity investments. The external valuation uses a discounted cash flow model, which includes significant unobservable inputs such as investment specific forecasted financial statements, weighted average cost of capital, that reflects current market assessments as well as a terminal growth rate.

The majority of the debt securities are held within a business model whose objective is achieving both contractual cash flows and sell the securities. The standard coupon bonds give rise on specified dates to cash flows that are solely payments of principal and interest on the outstanding principal amount. Subsequently these financial assets have been classified as fair value through other comprehensive income (“FVOCI”). The smaller part of debt securities does not give rise to cash flows that are solely payments of principle and interest. Consequently, these securities are measured at FVPL. In general, most of the debt securities are quoted in an active market.

Long-term debt is initially recognized at its fair value. The fair values of major long-term debt are calculated on the basis of market information. Liabilities for which market quotes are available are measured using these quotes. The fair values of the other long-term debt are calculated at the present value of the respective future cash flows. To determine these present values, the prevailing interest rates and credit spreads for the Company as of the balance sheet date are used.

Variable payments outstanding for acquisitions are recognized at their fair value. The estimation of the individual fair values is based on the key inputs of the arrangement that determine the future contingent payment as well as the Company’s expectation of these factors. The Company assesses the likelihood and timing of achieving the relevant objectives. The underlying assumptions are reviewed regularly.

Put option liabilities are recognized at the present value of the exercise price of the option. The exercise price of the option is generally based on fair value. The methodology the Company uses to estimate the fair values assumes the greater of net book value or a multiple of earnings, based on historical earnings, development stage of the underlying business and other factors. From time to time the Company engages external valuation firms for the valuation of the put options. The external valuation estimates the fair values using a combination of discounted cash flows and a multiple of earnings and/or revenue. The put option liabilities are discounted at a pre-tax discount rate that reflects current market assessments of the time value of money and the risks specific to the liability. The estimated fair values of these put options can also fluctuate, and the discounted cash flows as well as the implicit multiple of earnings and/or revenue at which these obligations may ultimately be settled could vary significantly from the Company’s current estimates depending upon market conditions. For the purpose of analyzing the impact of changes in unobservable inputs on the fair value measurement of put option liabilities, the Company assumes an increase on earnings of 10% compared to the actual estimation as of the balance sheet date. The corresponding increase in fair value of €67,820 is then compared to the total liabilities and the shareholder’s equity of the Company. This analysis shows that an increase of 10% in the relevant earnings would have an effect of less than 1% on the total liabilities and less than 1% on the shareholder’s equity of the Company.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

Following is a roll forward of Level 3 financial instruments at September 30, 2021 and December 31, 2020:

Reconciliation from beginning to ending balance of level 3 financial instruments

in € THOUS

 

2021

 

2020

    

Variable

    

    

Variable

    

payments

payments

outstanding

outstanding

Equity

for

Put option

Equity

for

Put option

    

investments

    

acquisitions

    

liabilities

    

investments

    

acquisitions

    

liabilities

Beginning balance at January 1,

 

188,518

66,359

882,422

183,054

89,677

934,425

Transfer to level 1

(158,551)

Increase

 

20,899

8,116

68,728

17,253

51,388

Decrease

 

(19,841)

(19,134)

(35,764)

(99,877)

Gain / loss recognized in profit or loss(1)

 

(3,895)

(4,178)

22,489

(1,996)

Gain / loss recognized in equity

 

(14,989)

73,993

Foreign currency translation and other changes

 

11,830

791

49,899

(17,025)

(2,811)

(77,507)

Ending balance at September 30, and December 31,

 

58,801

51,247

966,926

188,518

66,359

882,422

(1) Includes realized and unrealized gains / losses.

11.    Segment and corporate information

The Company’s operating and reportable segments are the North America Segment, the EMEA Segment, the Asia-Pacific Segment and the Latin America Segment. The operating segments are determined based upon how the Company manages its businesses with geographical responsibilities. All segments are primarily engaged in providing health care services and the distribution of products and equipment for the treatment of ESKD and other extracorporeal therapies.

Management evaluates each segment using measures that reflect all of the segment’s controllable revenues and expenses. With respect to the performance of business operations, management believes that the most appropriate measures are revenue and operating income. The Company does not include income taxes as it believes taxes are outside the segments’ control. Financing is a corporate function, which the Company’s segments do not control. Therefore, the Company does not include interest expense relating to financing as a segment measurement. Similarly, the Company does not allocate certain costs, which relate primarily to certain headquarters’ overhead charges, including accounting and finance as well as certain legal costs, because the Company believes that these costs are also not within the control of the individual segments. Production of products, production asset management, quality and supply chain management as well as procurement related to production are centrally managed. Products transferred to the segments are transferred at cost; therefore, no internal profit is generated. The associated internal revenue for the product transfers and their elimination are recorded as corporate activities. Capital expenditures for production are based on the expected demand of the segments and consolidated profitability considerations. The Company’s global research and development team as well as its Global Medical Office, which seek to optimize medical treatments and clinical processes within the Company, are also centrally managed. These corporate activities (“Corporate”) do not fulfill the definition of a segment according to IFRS 8, Operating Segments. In addition, certain revenues, investments and intangible assets, as well as any related expenses, are not allocated to a segment but are accounted for as Corporate.

Information pertaining to the Company’s segment and Corporate activities for the three and nine months ended September 30, 2021 and 2020 is set forth below:

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

Segment and corporate information

in € THOUS

North

    

    

Asia-

    

Latin

    

    

    

 

America

 

EMEA

 

Pacific

 

America

 

Segment

    

Segment

    

Segment

    

Segment

    

Segment

    

Total

    

Corporate (1)

    

Total

Three months ended September 30, 2021

 

  

 

  

  

 

  

 

  

 

  

 

  

Revenue from health care services

 

2,704,091

346,490

239,321

126,170

3,416,072

7,994

3,424,066

Revenue from health care products

 

266,151

315,552

253,227

50,907

885,837

3,380

889,217

Revenue from contracts with customers

 

2,970,242

662,042

492,548

177,077

4,301,909

11,374

4,313,283

Other revenue external customers

 

109,673

8,911

8,724

775

128,083

128,083

Revenue external customers

 

3,079,915

670,953

501,272

177,852

4,429,992

11,374

4,441,366

Inter-segment revenue

 

4,377

194

4,571

(4,571)

Revenue

 

3,084,292

670,953

501,466

177,852

4,434,563

6,803

4,441,366

Operating income

 

445,892

78,771

86,266

4,349

615,278

(110,617)

504,661

Interest

 

(68,436)

Income before income taxes

436,225

Depreciation and amortization

 

(247,594)

(48,566)

(25,359)

(9,673)

(331,192)

(65,212)

(396,404)

Impairment loss

(6,434)

(6,434)

5

(6,429)

Income (loss) from equity method investees

16,690

3,300

630

416

21,036

21,036

Additions of property, plant and equipment, intangible assets and right of use assets

 

206,081

32,668

18,298

13,586

270,633

59,755

330,388

Three months ended September 30, 2020

 

Revenue from health care services

2,728,512

346,373

227,183

120,116

3,422,184

5,220

3,427,404

Revenue from health care products

262,896

328,331

246,204

49,245

886,676

3,196

889,872

Revenue from contracts with customers

 

2,991,408

 

674,704

 

473,387

 

169,361

 

4,308,860

 

8,416

 

4,317,276

Other revenue external customers

 

77,830

 

7,449

 

10,510

 

703

 

96,492

 

 

96,492

Revenue external customers

 

3,069,238

 

682,153

 

483,897

 

170,064

 

4,405,352

 

8,416

 

4,413,768

Inter-segment revenue

 

8,217

 

1,831

 

184

 

58

 

10,290

 

(10,290)

 

Revenue

 

3,077,455

 

683,984

 

484,081

 

170,122

 

4,415,642

 

(1,874)

 

4,413,768

Operating income

 

514,226

 

99,464

 

96,892

 

11,181

 

721,763

 

(89,983)

 

631,780

Interest

 

 

(87,692)

Income before income taxes

 

 

544,088

Depreciation and amortization

 

(244,800)

 

(47,073)

 

(33,430)

 

(8,301)

 

(333,604)

 

(62,575)

 

(396,179)

Impairment loss

(389)

3,542

3,153

1

3,154

Income (loss) from equity method investees

 

22,934

 

1,114

 

162

 

(36)

 

24,174

 

(1)

 

24,173

Additions of property, plant and equipment, intangible assets and right of use assets

 

285,348

 

55,336

 

32,528

 

13,735

 

386,947

 

73,693

 

460,640

Nine months ended September 30, 2021

Revenue from health care services

7,855,557

1,020,400

693,951

364,072

9,933,980

28,901

9,962,881

Revenue from health care products

771,863

974,380

729,388

141,717

2,617,348

12,281

2,629,629

Revenue from contracts with customers

8,627,420

1,994,780

1,423,339

505,789

12,551,328

41,182

12,592,510

Other revenue external customers

304,017

38,485

34,641

2,008

379,151

379,151

Revenue external customers

8,931,437

2,033,265

1,457,980

507,797

12,930,479

41,182

12,971,661

Inter-segment revenue

26,243

361

26,604

(26,604)

Revenue

8,957,680

2,033,265

1,458,341

507,797

12,957,083

14,578

12,971,661

Operating income

1,241,989

232,030

255,780

13,583

1,743,382

(340,247)

1,403,135

Interest

(213,717)

Income before income taxes

1,189,418

Depreciation and amortization

(727,271)

(146,943)

(76,855)

(28,040)

(979,109)

(192,061)

(1,171,170)

Impairment loss

(9,349)

(9,349)

(6,049)

(15,398)

Income (loss) from equity method investees

69,303

(248)

1,489

670

71,214

71,214

Total assets

22,991,521

3,964,433

2,904,586

787,526

30,648,066

3,182,860

33,830,926

thereof investments in equity method investees

434,975

182,138

101,222

24,464

742,799

742,799

Additions of property, plant and equipment, intangible assets and right of use assets

655,916

136,054

61,272

38,916

892,158

188,813

1,080,971

Nine months ended September 30, 2020

Revenue from health care services

8,429,881

1,028,071

640,902

360,165

10,459,019

18,926

10,477,945

Revenue from health care products

819,728

998,490

699,772

145,060

2,663,050

12,170

2,675,220

Revenue from contracts with customers

9,249,609

2,026,561

1,340,674

505,225

13,122,069

31,096

13,153,165

Other revenue external customers

245,641

21,414

36,329

2,360

305,744

305,744

Revenue external customers

9,495,250

2,047,975

1,377,003

507,585

13,427,813

31,096

13,458,909

Inter-segment revenue

22,240

4,408

212

248

27,108

(27,108)

Revenue

9,517,490

2,052,383

1,377,215

507,833

13,454,921

3,988

13,458,909

Operating income

1,587,051

278,140

237,012

28,959

2,131,162

(288,328)

1,842,834

Interest

(283,851)

Income before income taxes

1,558,983

Depreciation and amortization

(758,967)

(141,824)

(86,417)

(25,547)

(1,012,755)

(187,971)

(1,200,726)

Impairment loss

(993)

(2,241)

(3,234)

(33)

(3,267)

Income (loss) from equity method investees

73,448

(23,441)

(1,273)

(67)

48,667

(180)

48,487

Total assets

22,680,229

3,855,469

2,781,200

906,905

30,223,803

2,825,332

33,049,135

thereof investments in equity method investees

394,756

185,696

100,466

26,076

706,994

706,994

Additions of property, plant and equipment, intangible assets and right of use assets

891,954

174,912

104,801

44,434

1,216,101

297,917

1,514,018

(1) Includes inter - segment consolidation adjustments.

55

Table of Contents

FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

12.    Events occurring after the balance sheet date

On October 15, 2021, the Company amended its commercial paper program and increased the available borrowing capacity from €1,000,000 to €1,500,000 (see note 5).

No other significant activities have taken place subsequent to the balance sheet date September 30, 2021 that have a material impact on the key figures and earnings presented. Currently, there are no significant changes in the Company’s structure, management, legal form or personnel.

56

Table of Contents

Quantitative and qualitative disclosures about market risk

The information in note 23 of the notes to the consolidated financial statements included in the Company’s Annual Report on Form 20-F for the year ended December 31, 2020, is incorporated by this reference.

57

Table of Contents

Controls and procedures

The Company is a “foreign private issuer” within the meaning of Rule 3b-4(c) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). As such, the Company is not required to file quarterly reports with the Securities and Exchange Commission (“the Commission”) and is required to provide an evaluation of the effectiveness of its disclosure controls and procedures, to disclose significant changes in its internal control over financial reporting and to provide certifications of its Chief Executive Officer and Chief Financial Officer under Sections 302 and 906 of the Sarbanes-Oxley Act of 2002 only in its Annual Report on Form 20-F. The Company furnishes quarterly financial information to the Commission and such certifications under cover of Form 6-K on a voluntary basis and pursuant to the provisions of the Company’s pooling agreement entered into for the benefit of the public holders of our shares. In connection with such voluntary reporting, the Company’s management, including the Chief Executive Officer and the Chief Financial Officer of the Company’s General Partner, has conducted an evaluation of the effectiveness of the Company’s disclosure controls and procedures as of the end of the period covered by this report, of the type contemplated by Securities Exchange Act Rule 13a-15. Based on that evaluation, the Chief Executive Officer and the Chief Financial Officer concluded in connection with the furnishing of this report, that the Company’s disclosure controls and procedures are designed to ensure that the information the Company is required to disclose in the reports filed or furnished under the Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms and are effective to ensure that the information the Company is required to disclose in its reports is accumulated and communicated to the General Partner’s Management Board, including the General Partner’s Chief Executive Officer and the Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure. During the past fiscal quarter, there have been no significant changes in internal controls, or in factors that could significantly affect internal controls.

On March 29, 2019, the Company entered into a non-prosecution agreement with the DOJ and a separate agreement with the SEC intended to resolve fully and finally the government’s claims against the Company arising from the investigations, described in note 9 of the notes to the consolidated financial statements (unaudited) presented elsewhere in this Report. The Company continues to implement enhancements to its anti-corruption compliance program, including internal controls related to compliance with international anti-bribery laws. The Company continues to be fully committed to compliance with the Foreign Corrupt Practices Act and other applicable anti-bribery laws.

In 2015, the Company self-reported to the German prosecutor conduct with a potential nexus to Germany and continues to cooperate with government authorities in Germany in their review of the conduct that prompted the Company's and United States government investigations.

Since 2012, the Company has made and continues to make further significant investments in its compliance and financial controls and in its compliance, legal and financial organizations. The Company's remedial actions included separation from those employees responsible for the above-mentioned conduct. The Company is dealing with post-FCPA review matters on various levels. The Company continues to be fully committed to compliance with the FCPA and other applicable anti-bribery laws.

58

Table of Contents

OTHER INFORMATION

Legal proceedings

The information in note 9 of the notes to consolidated financial statements (unaudited), presented elsewhere in this report, is incorporated by this reference.

59

Table of Contents

Exhibits

Exhibit No.

10.6

Eighth Amended and Restated Transfer and Administration Agreement dated as of August 11, 2021 by and among NMC Funding Corporation, as Transferor, National Medical Care, Inc., as initial collection agent, Liberty Street Funding LLC, and other conduit investors party thereto, the financial institutions party thereto, The MUFG Bank, Ltd., New York Branch, The Toronto-Dominion Bank, Credit Agricole Corporate and Investment Bank, New York, PNC Bank, National Association, Royal Bank of Canada, as administrative agents, and The Bank of Nova Scotia, as an administrative agent and as agent (filed herewith).

10.7

Third Amended and Restated Receivables Purchase Agreement dated August 11, 2021 between National Medical Care, Inc. and NMC Funding Corporation (filed herewith).

10.8

Amendment No. 1 dated October 28, 2021 to Eighth Amended and Restated Transfer and Administration Agreement dated as of August 11, 2021 (filed herewith).

31.1

Certification of Chief Executive Officer and Chairman of the Management Board of the Company’s General Partner Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

31.2

Certification of Chief Financial Officer and member of the Management Board of the Company’s General Partner Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

32.1

Certification of Chief Executive Officer and Chairman of the Management Board of the Company’s General Partner and Chief Financial Officer and member of the Management Board of the Company’s General Partner Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (this exhibit accompanies this report as required by the Sarbanes-Oxley Act of 2002 and is not to be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended).

101

The following financial statements as of and for the three- and nine-month periods ended September 30, 2021 from FMC-AG & Co. KGaA’s Report on Form 6-K for the month of November 2021, formatted in iXBRL (Inline eXtensible Business Reporting Language) and included in the body of this report: (i) Consolidated Statements of Income, (ii) Consolidated Statements of Comprehensive Income, (iii) Consolidated Balance Sheets, (iv) Consolidated Statements of Cash Flows, (v) Consolidated Statements of Shareholders’ Equity and (vi) Notes to Consolidated Financial Statements.

60

Table of Contents

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

DATE: November 2, 2021

FRESENIUS MEDICAL CARE AG & Co. KGaA

a partnership limited by shares, represented by:

FRESENIUS MEDICAL CARE MANAGEMENT AG,

its General Partner

By:

/s/ RICE POWELL

Name:

Rice Powell

Title:

Chief Executive Officer and

Chairman of the Management Board of the General Partner

By:

/s/ HELEN GIZA

Name:

Helen Giza

Title:

Chief Financial Officer and member of the Management Board of the General Partner

61

Exhibit 10.6

EXECUTION VERSION

EIGHTH AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT

among

NMC FUNDING CORPORATION,

as Transferor

NATIONAL MEDICAL CARE, INC.,

as Collection Agent

THE ENTITIES PARTIES HERETO,

as Conduit Investors

THE FINANCIAL INSTITUTIONS PARTIES HERETO,

as Bank Investors

THE BANK OF NOVA SCOTIA
MUFG BANK, LTD. f/k/a THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH
THE TORONTO-DOMINION BANK
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, NEW YORK
PNC BANK, NATIONAL ASSOCIATION

and

ROYAL BANK OF CANADA

as Administrative Agents

and

THE BANK OF NOVA SCOTIA,

as Agent

Dated as of August 11, 2021


TABLE OF CONTENTS

ARTICLE I

DEFINITIONS

1

SECTION 1.1.

Certain Defined Terms

1

SECTION 1.2.

Other Terms

47

SECTION 1.3.

Computation of Time Periods

47

SECTION 1.4.

Amendment and Restatement

48

SECTION 1.5.

Interest Rates; LIBOR Notification

48

ARTICLE II

PURCHASE AND SETTLEMENTS

49

SECTION 2.1.

Facility

49

SECTION 2.2.

Incremental Transfers(NI); Certificates; Eligible Receivables

49

SECTION 2.3.

Selection of Tranche Periods and Tranche Rates

52

SECTION 2.4.

Discount, Fees and Other Costs and Expenses

57

SECTION 2.5.

Non-Liquidation Settlement and Reinvestment Procedures

57

SECTION 2.6.

Liquidation Settlement Procedures

58

SECTION 2.7.

Fees

60

SECTION 2.8.

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

60

SECTION 2.9.

Deemed Collections; Application of Payments

62

SECTION 2.10.

Payments and Computations, Etc

63

SECTION 2.11.

Reports

63

SECTION 2.12.

Collection Account

64

SECTION 2.13.

Sharing of Payments, Etc

65

SECTION 2.14.

Right of Setoff

65

SECTION 2.15.

Addition and Removal of Transferring Affiliates

65

SECTION 2.16.

Optional Repurchase of Transferred Interest

67

SECTION 2.17.

Letters of Credit.

67

SECTION 2.18.

Issuance and Modification of Letters of Credit.

68

SECTION 2.19.

Disbursements and Reimbursements under Letters of Credit

69

SECTION 2.20.

Documentation in connection with Letters of Credit

70

SECTION 2.21.

Determination to Honor Drawing Request under a Letter of Credit

71

SECTION 2.22.

Reimbursement Obligations

71

SECTION 2.23.

Indemnity in connection with Letters of Credit

73

SECTION 2.24.

Liability for Acts and Omissions in connection with Letters of Credit

73

i


ARTICLE III

REPRESENTATIONS AND WARRANTIES

74

SECTION 3.1.

Representations and Warranties of the Transferor

74

SECTION 3.2.

Reaffirmation of Representations and Warranties by the Transferor

80

SECTION 3.3.

Representations and Warranties of the Collection Agent

81

ARTICLE IV

CONDITIONS PRECEDENT

83

SECTION 4.1.

Conditions to Closing

83

SECTION 4.2.

Conditions to Funding an Incremental Transfer (NI)

85

SECTION 4.3.

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

85

SECTION 4.4.

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

86

ARTICLE V

COVENANTS

87

SECTION 5.1.

Affirmative Covenants of Transferor

87

SECTION 5.2.

Negative Covenants of the Transferor

94

SECTION 5.3.

Affirmative Covenants of the Collection Agent

98

SECTION 5.4.

Negative Covenants of the Collection Agent

100

SECTION 5.5.

Risk Retention Requirements

101

ARTICLE VI

ADMINISTRATION AND COLLECTION

102

SECTION 6.1.

Appointment of Collection Agent

102

SECTION 6.2.

Duties of Collection Agent

102

SECTION 6.3.

Right After Designation of New Collection Agent

104

SECTION 6.4.

Collection Agent Default

105

SECTION 6.5.

Responsibilities of the Transferor

106

ARTICLE VII

TERMINATION EVENTS

106

SECTION 7.1.

Termination Events

106

SECTION 7.2.

Termination

109

ii


ARTICLE VIII

INDEMNIFICATION; EXPENSES; RELATED MATTERS

110

SECTION 8.1.

Indemnities by the Transferor

110

SECTION 8.2.

Indemnity for Taxes, Reserves and Expenses

113

SECTION 8.3.

Taxes

116

SECTION 8.4.

Other Costs, Expenses and Related Matters

118

SECTION 8.5.

Reconveyance Under Certain Circumstances

119

ARTICLE IX

THE AGENT; BANK COMMITMENT; THE ADMINISTRATIVE AGENTS

119

SECTION 9.1.

Authorization and Action

119

SECTION 9.2.

Agent’s Reliance, Etc

120

SECTION 9.3.

Credit Decision

121

SECTION 9.4.

Indemnification of the Agent

121

SECTION 9.5.

Successor Agent

122

SECTION 9.6.

Payments by the Agent; Erroneous Payments

122

SECTION 9.7.

Bank Commitment; Assignment to Bank Investors

123

SECTION 9.8.

Appointment of Administrative Agents

127

SECTION 9.9.

Administrative Agent’s Reliance, Etc

128

SECTION 9.10.

Indemnification of the Administrative Agents

129

SECTION 9.11.

Successor Administrative Agents

129

SECTION 9.12.

Payments by the Administrative Agents

130

ARTICLE X

MISCELLANEOUS

130

SECTION 10.1.

Term of Agreement

130

SECTION 10.2.

Waivers; Amendments

130

SECTION 10.3.

Notices

131

SECTION 10.4.

Governing Law; Submission to Jurisdiction; Integration

135

SECTION 10.5.

Severability; Counterparts; Electronic Signatures

136

SECTION 10.6.

Successors and Assigns

136

SECTION 10.7.

Waiver of Confidentiality

137

SECTION 10.8.

Confidentiality Agreement

137

SECTION 10.9.

No Bankruptcy Petition Against Conduit Investors

139

SECTION 10.10.

No Recourse Against Stockholders, Officers or Directors

139

SECTION 10.11.

Characterization of the Transactions Contemplated by the Agreement

139

SECTION 10.12.

Perfection Representations

140

SECTION 10.13.

Acknowledgement and Consent to EU Bail-In of EEA Financial Institutions

140

SECTION 10.14.

PATRIOT Act Notice

141

SECTION 10.15.

Purchase of Interests of the CACIB Group

141

iii


SCHEDULES

SCHEDULE I

Notice Addresses of Bank Investors

SCHEDULE II

Commitments of Bank Investors

SCHEDULE III

Perfection Representations

SCHEDULE IV

[RESERVED]

EXHIBITS

EXHIBIT A

Form of Notice of Incremental Transfer (NI)

EXHIBIT B

Form of L/C Issuance Notice

EXHIBIT C

Form of L/C Modification Notice

EXHIBIT D-1

Form of Special Account Letter

EXHIBIT D-2

Form of Concentration Account Agreement

EXHIBIT D-3

Form of Intermediate Concentration Account Agreement

EXHIBIT D-4

Form of Notice of Termination of Special Account Letter

EXHIBIT E

Form of Investor Report

EXHIBIT F

Form of Transfer Certificate

EXHIBIT G

Form of Assignment and Assumption Agreement

EXHIBIT H

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

EXHIBIT I

Location of Records

EXHIBIT J

Form of Business Associate Agreement

EXHIBIT K

[RESERVED]

EXHIBIT L

Forms of Secretary’s Certificate

EXHIBIT M

[RESERVED]

EXHIBIT N

[RESERVED]

EXHIBIT O

Form of Transferring Affiliate Letter

EXHIBIT P

Form of Receivables Purchase Agreement and Parent Agreement

iv


EXHIBIT Q

List of Transferring Affiliates

EXHIBIT R

Form of Account Agent Agreement

EXHIBIT S

List of Closing Documents

EXHIBIT T

Form of Agreed Upon Procedures Report

v


EIGHTH AMENDED AND RESTATED TRANSFER
AND ADMINISTRATION AGREEMENT

EIGHTH AMENDED AND RESTATED TRANSFER AND ADMINISTRATION AGREEMENT (this “Agreement”), dated as of August 11, 2021 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 (in such capacity, the “Collection Agent”), LIBERTY STREET FUNDING LLC, a Delaware limited liability company, as a Conduit Investor, ATLANTIC ASSET SECURITIZATION LLC, a Delaware limited liability company, as a Conduit Investor, GTA FUNDING LLC, a Delaware limited liability company, as a Conduit Investor, THUNDER BAY FUNDING, LLC, a Delaware limited liability company, as a Conduit Investor, VICTORY RECEIVABLES CORPORATION, a Delaware corporation, as a Conduit Investor, the FINANCIAL INSTITUTIONS PARTIES HERETO, as Bank Investors, MUFG BANK, LTD. f/k/a THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, as an Administrative Agent, THE TORONTO-DOMINION BANK, as an Administrative Agent, CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, NEW YORK, as an Administrative Agent, PNC BANK, NATIONAL ASSOCIATION, as an Administrative Agent, ROYAL BANK OF CANADA, as an Administrative Agent, and THE BANK OF NOVA SCOTIA, as an Administrative Agent and as agent (in such capacity, the “Agent”) for the Investors.

PRELIMINARY STATEMENTS

WHEREAS, the Transferor, the Collection Agent, certain of the Conduit Investors, certain of the Bank Investors and certain of the Administrative Agents are parties to that certain Seventh Amended and Restated Transfer and Administration Agreement dated as of November 24, 2014 (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:

2013 Closing Date” means January 17, 2013.

2016 Closing Date” means December 6, 2016.

2018 Closing Date” means December 20, 2018.

2021 Closing Date” means August 11, 2021.

1


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

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

Adjusted Default Ratio” means the ratio (expressed as a percentage) computed as of the last day of each calendar month by multiplying (i) 100% minus the Recovery Rate and (ii) the Default Ratio.

Administrative Agent” means (i) The Bank of Nova Scotia, as administrative agent for the Related Group that includes Liberty Street, (ii) MUFG Bank, Ltd. f/k/a The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, as administrative agent for the Related Group that includes Victory Receivables Corporation, (iii) The Toronto-Dominion Bank, as administrative agent for the Related Group that includes each of GTA Funding and Reliant Trust, (iv) Credit Agricole Corporate and Investment Bank, New York, as administrative agent for the Related Group that includes Atlantic Securitization, (v) PNC Bank, National Association, as administrative agent for the Related Group that includes PNC Bank, National Association, and (vi) Royal Bank of Canada, as administrative agent for the Related Group that includes Thunder Bay.

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

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

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

Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling, Controlled by, or under direct or indirect common Control with, such Person.

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

Agent Fee Letter” means the Amended and Restated Agent Fee Letter dated the 2016 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, (iii) the aggregate accrued and unpaid L/C Fees at such time, (iv) the aggregate unpaid amount of all Reimbursement Obligations and accrued and unpaid RO

2


Interest at such time, (v) the aggregate amount of cash collateral then required to be remitted to an L/C Collateral Account, (vi) the aggregate accrued and unpaid fees described in Section 2.7, and (vii) all other amounts owed (whether due or accrued) hereunder by the Transferor to the Investors at such time.

Agreed Upon Procedures Report” means the report contemplated in Section 6.2(c)(i).

Agreement” shall have the meaning specified in the Preamble to this Agreement. “Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Seller Parties or their respective Subsidiaries from time to time concerning or relating to bribery or corruption, including, without limitation, the Foreign Corrupt Practices Act of 1977, as amended, the UK Bribery Act 2010 and any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

Anti-Terrorism Laws” means each of: (a) the Executive Order; (b) the PATRIOT Act; (c) the Money Laundering Control Act of 1986, 18 U.S.C. Sect. 1956 and any successor statute thereto; (d) the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada); (e) the Bank Secrecy Act, and the rules and regulations promulgated thereunder; and (f) any other Law of the United States, Canada or any member state of the European Union now or hereafter enacted to monitor, deter or otherwise prevent: (i) terrorism or (ii) the funding or support of terrorism or (iii) money laundering.

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

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

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

Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for such Benchmark (or component thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof), as applicable, that is or may be used for determining the length of any Tranche Period for any term rate or otherwise, for determining any frequency of making payments of interest calculated pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Tranche Period” pursuant to clause (vi) of Section 2.3(h).

Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council

3


of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

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

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

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

Base Rate” or “BR” means, with respect to the Investors in any Related Group, a rate per annum equal to the greatest of (i) the Prime Rate from time to time, changing when and as said prime rate changes (such rate not necessarily being the lowest or best rate charged by any Administrative Agent), (ii) the Eurodollar Rate determined as of such date for an assumed Eurodollar Tranche Period of one month commencing on such date and (iii) the sum of (a) 1.50% and (b) the NYFRB Rate; provided, however, that the Base Rate for any BR Tranche Period shall not be less than 0.00%; provided further that if the Base Rate is being used as an alternate rate of interest pursuant to Section 2.3(h) (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 2.3(h)), then the Base Rate, with respect to the Investors in the Related Group shall be the greater of clauses (i) and (iii) above and shall be determined without reference to clause (ii) above. Any change in the Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Eurodollar Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Eurodollar Rate, respectively.

Benchmark” means, initially, the LIBOR Rate; provided that if a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to the LIBOR Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (ii) or clause (iii) of Section 2.3(h).

Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for its Related Group and the applicable Benchmark Replacement Date:

(1) the sum of: (a) Term SOFR and (b) the related Benchmark Replacement Adjustment;

(2) the sum of: (a) Daily Simple SOFR and (b) the related Benchmark Replacement Adjustment;

(3) the sum of: (a) the alternate benchmark rate that has been selected by such Administrative Agent and the Transferor as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or

4


recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for dollar- denominated syndicated credit facilities at such time and (b) the related Benchmark Replacement Adjustment;

provided that, in the case of clause (1), the related Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected by such Administrative Agent in its reasonable discretion; provided further that, notwithstanding anything to the contrary in this Agreement or in any other Transaction Document, upon the occurrence of a Term SOFR Transition Event, and the delivery of a Term SOFR Notice, on the applicable Benchmark Replacement Date, the “Benchmark Replacement” shall revert to and shall be deemed to be the sum of (a) Term SOFR and (b) the related Benchmark Replacement Adjustment, as set forth in clause (1) of this definition (subject to the first proviso above).

If the Benchmark Replacement as determined pursuant to clause (1), (2) or (3) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Transaction Documents.

Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Tranche Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:

(1) for purposes of clauses (1) and (2) of the definition of “Benchmark Replacement,” the first alternative set forth in the order below that can be determined by the Administrative Agent:

(a) the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Tranche Period that has been selected or recommended by the Relevant Governmental Body for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable Corresponding Tenor;

(b) the spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Tranche Period that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to such Benchmark for the applicable Corresponding Tenor; and

(2) for purposes of clause (3) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Transferor and each Administrative Agent for its Related Group for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for

5


calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for dollar-denominated syndicated credit facilities at such time;

provided that (a) in the case of clause (1) above, such spread adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by the Administrative Agent for its Related Group in its reasonable discretion; and (b) if Term SOFR is the Unadjusted Benchmark Replacement, such spread adjustment shall be as follows:

Corresponding Tenor

Spread Adjustment

1 Month

0.11448%

3 Months

0.26161%

6 Months

0.42826%

Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate” the definition of “Business Day”, the definition of “Eurodollar Tranche Period”, the definition of “Tranche Period”, the timing and frequency of determining rates and making payments of interest, the timing of borrowing requests or prepayment, conversion or continuation notices, the length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent for its Related Group decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by such Administrative Agent in a manner substantially consistent with market practice (or, if such Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if such Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as such Administrative Agent decides is reasonably necessary for its Related Group in connection with the administration of this Agreement and the other Transaction Documents).

Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:

(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published

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component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof);

(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or component thereof) to be no longer representative; provided that such non- representativeness will be determined by reference to the most recent statement or publication referenced in such clause (3) and even if any Available Tenor of such Benchmark (or component thereof) continues to be provided on such date; or

(3) in the case of a Term SOFR Transition Event, the date that is thirty (30) days after the date a Term SOFR Notice is provided by an Administrative Agent to the Investors in its Related Group, the Transferor and the Agent pursuant to Section 2.3(h)(iii); or

(4) in the case of an Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to Investors.

For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:

(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);

(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or

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publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or

(3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer be, representative.

For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

Benchmark Unavailability Period” means the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Transaction Document in accordance with Section 2.3(h) and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Transaction Document in accordance with Section 2.3(h).

Beneficial Ownership Rule” means 31 C.F.R. § 1010.230.

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.

Billed Receivable” means any Receivable that is not an Unbilled Receivable. “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.

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CACIB Group” means the Related Group that includes Atlantic Securitization.

CACIB Group Letter Agreement” means the letter agreement dated the 2018 Closing Date among the CACIB Group and the Transferor relating to the CACIB Group’s internal disbursement of allocations that were made to the Administrative Agent for the CACIB Group pursuant to Sections 2.5 and 2.6, as amended, restated, supplemented or otherwise modified from time to time.

CACIB Notice” shall have the meaning specified in Section 10.15(a).

CACIB Repurchase Date” shall have the meaning specified in Section 10.15(a).

CACIB Repurchase Notice” shall have the meaning specified in Section 10.15(c).

CACIB Repurchase Price” shall have the meaning specified in Section 10.15(c).

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

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

Cash Collections Report” means the report, in a form mutually agreed to by the Transferor and each Administrative Agent, furnished by the Collection Agent pursuant to Section 2.11(b) hereof.

Certification of Beneficial Owner(s)” means a certificate in form and substance satisfactory to the Administrative Agent regarding beneficial ownership of the Transferor as required by the Beneficial Ownership Rule.

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.

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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 the occurrence of one or more of the following events:

(i)

if and so long as FME KGaA is organized as a partnership limited by shares (KGaA):

(A)

the general partner of FME KGaA charged with the management of FME KGaA ceases at any time to be Fresenius SE or a wholly-owned Subsidiary of Fresenius SE; or

(B)

Fresenius SE fails at any time to own and control more than 25% of the Capital Stock with ordinary voting power in FME KGaA;

(ii)

if and so long as FME KGaA is not organized as KGaA any event the result of which any person or group of persons (“Relevant Person(s)”) acting in concert (as defined in Section 30 (2) of the German Securities Acquisition and Takeover Act (Wertpapiererwerbs- und Übernahmegesetz)) or any person or group of persons acting on behalf of any such Relevant Person(s) , other than in each case any Permitted Holder (as defined below), is or becomes the direct or indirect legal or beneficial entitlement (as defined in Section 22 of the German Securities Trading Act (Wertpapierhandelsgesetz)) of, in the aggregate, more than 50% of the voting shares in FME KGaA; and

(iii)

in the case of any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all of the assets of FME KGaA and its consolidated Subsidiaries to any person or group of persons which is prohibited under this Agreement.

For purposes of this definition, “Permitted Holder” means Fresenius SE and any of its wholly-owned Subsidiaries, as long as and to the extent Fresenius SE or the relevant direct or indirect subsidiaries is or are not acting in concert with, or on behalf of, a Relevant Person(s).

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

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

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

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

Collection Agent Default” has the meaning specified in Section 6.4 hereof. “Collection Delay Factor” means 10 days or such other number of days as the Agent may select upon three Business Days’ notice to the Transferor.

Collections” means, with respect to any Receivable, all cash collections and other cash proceeds of such Receivable, including, without limitation, all Finance Charges, if any, all payments under the Medicare “cost of recovery” process that are allocable to such Receivable and all other cash proceeds of Related Security with respect to such Receivable.

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

Commercial Paper” means, with respect to any Conduit Investor, the promissory notes issued by such Conduit Investor or its Related CP Issuer in the commercial paper market.

Commitment” means (i) with respect to each Bank Investor party hereto, the agreement of such Bank Investor to make acquisitions from the Transferor or a Conduit Investor in its Related Group, and to issue Letters of Credit to the Transferor in its capacity as an L/C Issuer, in accordance herewith and in an aggregate amount not to exceed the dollar amount set forth opposite such Bank Investor’s name on Schedule II hereto under the heading “Commitment”, minus the dollar amount of any Commitment or portion thereof assigned pursuant to an Assignment and Assumption Agreement plus the dollar amount of any increase to such Bank Investor’s Commitment consented to by such Bank Investor prior to the time of determination, (ii) with respect to any assignee of a Bank Investor taking pursuant to an Assignment and Assumption Agreement, the commitment of such assignee to make acquisitions from the Transferor or a Conduit Investor in its Related Group, and to issue Letters of Credit to the Transferor in its capacity as an L/C Issuer, in accordance herewith in an aggregate amount not to exceed the amount set forth in such Assignment and Assumption Agreement minus the dollar amount of any Commitment or portion thereof assigned pursuant to an Assignment and Assumption Agreement prior to such time of determination and (iii) with respect to any assignee of an assignee referred to in clause (ii), the commitment of such assignee to make acquisitions from the Transferor or a Conduit Investor in its Related Group and to issue Letters of Credit in

11


its capacity as an L/C Issuer not to exceed in the aggregate the amount set forth in an Assignment and Assumption Agreement between such assignee and its assign.

Commitment Termination Date” means August 11, 2024, or such later date to which the Commitment Termination Date may be extended by Transferor, the Agent and the Bank Investors.

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

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

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

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

Concentration Factor” means for any Designated Obligor (or, in the case of clause (c) below, all Self-Pay Obligors in the aggregate) on any date of determination (calculated prior to the payment of any Transfer Price to be made on such date but as if such payment had been made):

(a)in the case of any Commercial Obligor or Hospital Obligor, the Concentration Factor shall be: (i) for so long as such Obligor has a short-term rating of at least “A-1” by Standard & Poor’s and “P-1” by Moody’s, or if such Obligor does not have a short- term rating, then for so long as such Obligor has a long-term rating of at least “A” by Standard and Poor’s and at least “A2” by Moody’s, 12.50% of the Eligible Receivable Balance outstanding on such date; (ii) for so long as clause (i) does not apply but such Obligor has a short-term rating of at least “A-2” by Standard & Poor’s and at least “P-2” by Moody’s, or if such Obligor does not have a short-term rating, then for so long as such Obligor has a long-term rating of at least “BBB+” by Standard and Poor’s and at least “Baa1” by Moody’s, 6.25% of the Eligible Receivable Balance outstanding on such date; (iii) for so long as neither clause (i) nor clause (ii) applies but such Obligor has a short-term rating of at least “A-3” by Standard & Poor’s and at least “P-3” by Moody’s, or if such Obligor does not have a short-term rating, then for so long as such Obligor has a long-term rating of at least “BBB-” by Standard and Poor’s and at least “Baa3” by Moody’s, 4.17% of the Eligible Receivable Balance outstanding on such date and (iv) in all other cases, 2.50%; or

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

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(c)in the case of all Self-Pay Obligors in the aggregate, 10.00% of the Eligible Receivable Balance; or

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

Conduit Cessation” means, with respect to a Conduit Investor, the cessation, suspension or winding down of such Conduit Investor’s business for any reason other than as a consequence of (i) a general market disruption in the U.S. commercial paper market that has rendered such Conduit Investor unable to place its Commercial Paper in such market or that has caused such Conduit Investor or its administrative agent to reasonably conclude that it would be commercially impractical for such Conduit Investor to place its Commercial Paper in such market, or (ii) the introduction after the 2013 Closing Date of any law, rule or regulation, or the issuance after the 2013 Closing Date of any order or directive of any governmental authority, having the effect of requiring such Conduit Investor to cease, suspend or wind down its business generally or its issuance of Commercial Paper.

Conduit Investor” means Atlantic Securitization, Liberty Street, GTA Funding, Thunder Bay, or Victory Receivables.

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

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

Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto. Without limiting the generality of the foregoing, a Person shall be deemed to

13


be Controlled by another Person if such other Person possesses, directly or indirectly, power to vote ten percent (10%) or more of securities having ordinary voting power for the election of directors, managing general partners or the equivalent.

Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding any business day adjustments) as such Available Tenor.

CP Rate” means, for any CP Tranche Period for any Conduit Investor, the per annum rate equivalent to the weighted average cost (as determined by the related Administrative Agent, and which shall include (without duplication) the fees and commissions of placement agents and dealers, incremental carrying costs incurred with respect to Commercial Paper maturing on dates other than those on which corresponding funds are received by such Conduit Investor or its Related CP Issuer, other borrowings by such Conduit Investor or its Related CP Issuer and any other costs associated with the issuance of Commercial Paper) of or related to the issuance of Commercial Paper that are allocated, in whole or in part, by such Conduit Investor or its Related CP Issuer or its related Administrative Agent to fund or maintain the related Tranche during such CP Tranche Period (and which may also be allocated in part to the funding of other assets of such 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 Agricole” means Credit Agricole Corporate and Investment Bank, New York, together with its successors and permitted assigns.

Credit and Collection Policy” shall mean the Collection Agent’s credit and collection policy or policies and practices, which have been adopted by the Transferor, relating to Contracts and Receivables existing on the date hereof and referred to in the written summary of such policies and practices furnished by the Collection Agent to the Administrative Agents on the date hereof, as modified from time to time in compliance with Section 5.2(c).

Credit Support Agreement” means, with respect to any Conduit Investor, an agreement between such Conduit Investor or its Related CP Issuer and a Credit Support Provider evidencing the obligation of such Credit Support Provider to provide credit support to such

14


Conduit Investor or its Related CP Issuer in connection with the issuance by such Conduit Investor or its Related CP Issuer of Commercial Paper.

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

Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which may include a lookback) being established by the Administrative Agent for its Related Group in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for business loans; provided, that if the Administrative Agent of any Related Group decides that any such convention is not administratively feasible for such Administrative Agent, then such Administrative Agent may establish another convention for its Related Group in its reasonable discretion.

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

Default Ratio” means the ratio (expressed as a percentage) computed as of the last day of each calendar month by dividing (i) the sum (without duplication) of (a) the aggregate Outstanding Balance of all Receivables that became Defaulted Receivables during such month plus (b) the aggregate Outstanding Balance of all Receivables that became Disputed Receivables during such month, plus (c) the gross write-offs on Receivables (other than any Government Program Receivable) that were less than 270 days past due (or in the case of any Receivable for which Blue Cross/Blue Shield of Illinois is the Obligor, less than 330 days past due) by (ii) the aggregate Outstanding Balance of Receivables that shall have been acquired by the Seller during the month occurring nine (9) months prior to such calendar month.

Defaulted Receivable” means a Billed Receivable: (i) as to which any payment, or part thereof, remains unpaid for over 270 days from the original due date (or in the case of any Billed Receivable for which Blue Cross/Blue Shield of Illinois is the Obligor, unpaid for 330 days from the original due date); (ii) as to which an Event of Bankruptcy has occurred and is continuing with respect to the Obligor thereof (unless the Transferor, the Originating Entity and the Collection Agent do not know, and could not reasonably be expected to know, of the existence of such Event of Bankruptcy); or (iii) that is less than 270 days past due from the original due date (or in the case of any Billed Receivable for which Blue Cross/Blue Shield of Illinois is the Obligor, less than 330 days past due from the original due date) which has been written off as uncollectible or should be written off as uncollectible in accordance with the Credit and Collection Policy; provided that the term “Defaulted Receivable” shall not include any Government Program Receivable.

Delinquent Receivable” means a Billed Receivable: (i) as to which any payment, or part thereof, remains unpaid for more than 90 days from the original due date and (ii) which is not a Defaulted Receivable.

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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 Joint Venture” means any Joint Venture for whom collections in an aggregate amount exceeding $2,000,000 on assets owing to such entity have been deposited into a Special Account during any one month during the most recent consecutive twelve (12) month period determined on the basis of the Cash Collections Report(s) for such period; provided, however, that if the Cash Collections Reports for any three (3) consecutive months indicate that the aggregate amount of such collections actually deposited into a Special Account for any month during the immediately preceding twelve (12) month period is less than $1,500,000, such Joint Venture shall cease to be a “Designated Joint Venture” until such later date, if any, as of which such collections again exceed $2,000,000 in any month.

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

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

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

Dilution Ratio” means, with respect to any calendar month, the ratio (expressed as a percentage) computed as of the last day of such calendar month by dividing (i) the sum (without duplication) of (A) the aggregate amount of any reductions to or cancellations of the respective Outstanding Balances of the Receivables as a result of any defective, rejected or returned merchandise or services and all credits, rebates, discounts, disputes, warranty claims, repossessed or returned goods, chargebacks, allowances, Contractual Adjustments and any other billing and other adjustment (whether effected through the granting of credits against the applicable Receivables or by the issuance of a check or other payment in respect of (and as payment for) such reduction) by the Seller, the Transferor or the Collection Agent, provided to Obligors in respect of Receivables during such month, excluding any Pre-Arranged Contractual Adjustment reflected in the initial Outstanding Balance of the applicable Receivable and (B) the aggregate Outstanding Balance of Government Program Receivables less than 270 days past due from the original due date which have been written off as uncollectible during such month or should be written off as uncollectible in accordance with the Credit and Collection Policy during such month (with such Outstanding Balance being determined without giving effect to such write-off) (each such Receivable, a “Diluted Government Program Receivable”) by (ii) the aggregate Outstanding Balance of all Receivables which arose during the preceding month.

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

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

[ (2.50 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

Where:

TD=the sum of the unpaid Discount for all Tranche Periods to which any portion of

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the Net Investment is allocated and all accrued and unpaid RO Interest.

LY=the Liquidation Yield.

Disputed Receivable” means, any Billed Receivable under the Medicare, Medicaid or CHAMPUS/VA program (in each case other than a Billed Receivable payable by a third-party Obligor) as to which any payment, or part thereof, remains unpaid for 270 days or more from the original due date.

Drawing Date” has the meaning specified in Section 2.19.

Drawn Fee” means, with respect to each Related Group, the fee payable by the Transferor to the related Administrative Agent for the account of the applicable Investors in such Related Group pursuant to Section 2.7(i) hereof, the terms of which are set forth in the Investor Fee Letter.

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.

Early Opt-in Election” means, if the then-current Benchmark is the LIBOR Rate, the occurrence of both of the following:

(1)a notification by the Administrative Agent of any Related Group to (or the request by the Transferor to the Administrative Agent to notify) each Investor in its Related Group, the Transferor and the Agent that at least five currently outstanding dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and

(2)the joint election by both the Transferor and such Administrative Agent to trigger a fallback from the LIBOR Rate and the provision by such Administrative Agent of written notice of such election to the Investors in its Related Group and the Agent.

EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

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EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

Effective Date” has the meaning specified in Section 1.4.

Eligible Investments” means any of the following (a) negotiable instruments or securities represented by instruments in bearer or registered or in book-entry form which evidence: (i) obligations fully guaranteed by the United States of America; (ii) time deposits in, or bankers acceptances issued by, any depository institution or trust company incorporated under the laws of the United States of America or any state thereof and subject to supervision and examination by Federal or state banking or depository institution authorities; provided, however, that at the time of investment or contractual commitment to invest therein, the certificates of deposit or short-term deposits, if any, or long-term unsecured debt obligations (other than such obligation whose rating is based on collateral or on the credit of a Person other than such institution or trust company) of such depository institution or trust company shall have a credit rating from Moody’s and S&P of at least “P-1” and “A-1”, respectively, in the case of the certificates of deposit or short-term deposits, or a rating not lower than one of the two highest investment categories granted by Moody’s and by S&P; (iii) certificates of deposit having, at the time of investment or contractual commitment to invest therein, a rating from Moody’s and S&P of at least “P-1” and A-1”, respectively; or (iv) investments in money market funds rated in the highest investment category or otherwise approved in writing by the applicable rating agencies; (b) demand deposits in any depository institution or trust company referred to in (a) (ii) above; (c) commercial paper (having original or remaining maturities of no more than 30 days) having, at the time of investment or contractual commitment to invest therein, a credit rating from Moody’s and S& P of at least “P-1” and “A-1”, respectively; and (e) repurchase agreements involving any of the Eligible Investments described in clauses (a)(i), (a)(iii) and (d) hereof so long as the other party to the repurchase agreement has at the time of investment therein, a rating from Moody’s and S&P of at least “P-1” and “A-1”, respectively.

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

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

(ii)which (together with the Collections and Related Security related thereto) has been the subject of either a valid transfer and assignment from the Transferor to the Agent, on behalf of the Investors, of all of the Transferor’s right, title and interest therein or the grant of

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a first priority perfected security interest herein (and in the Collections and Related Security related thereto), effective until the termination of this Agreement;

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

(iv)which is not (a) a Defaulted Receivable, (b) a Disputed Receivable, (c) in the case of a Medicare Receivable, more than 90 days past due or (d) in the case of any other Receivable, more than 180 days past due;

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

(vi)which (A) arises pursuant to a Contract with respect to which each of the related Originating Entity 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) either (1) has been billed or (2) is an Unbilled Receivable that has been maintained on the books and records of the related Originating Entity for not more than 120 days and is billed no later than 120 days after the related Originating Entity has performed all material obligations required to be performed by it thereunder, in each case 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” within the meaning of Article 9 of the UCC of all applicable jurisdictions;

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

(xi)which, to the knowledge of the Transferor, the Seller and the applicable Transferring Affiliate, after due inquiry in accordance with customary practice, (A) arises under a Contract that has been duly authorized and that, together with the Receivable related thereto, is

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in full force and effect and constitutes the legal, valid and binding obligation of the related Obligor enforceable against such Obligor in accordance with its terms, (B) is not subject to any litigation, dispute, counterclaim or other defense and (C) is not subject to any offset other than as set forth in the related Contract;

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

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

(xiv)which was originated 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 by the applicable Transferring Affiliate, the assignment of which under the Receivables Purchase Agreement by the Seller and the assignment of which hereunder by the Transferor nor the performance or execution of any of the other transactions contemplated in any of the Transaction Documents with respect thereto violates, conflicts or contravenes any applicable laws, rules or regulations (including without limitation, any CHAMPUS/VA Regulations, any Medicaid Regulations and any Medicare Regulations), orders or writs or any contractual or other restriction, limitation or encumbrance;

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

(xviii)which, in the case of any Receivable payable by an Obligor through a fiscal intermediary or similar entity, is payable through one of the Persons in such capacity that

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

(xx)no Obligor of which (i) is a Sanctioned Person or (ii) is subject to an Event of Bankruptcy that has occurred and is continuing.

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

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.

ESCO Letter of Credit” means a Letter of Credit issued to Centers for Medicare and Medicaid Services, as beneficiary, at the request of the Transferor on behalf of any Fresenius ESRD Seamless Care Organization (ESCO).

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

EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

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) in the case of any Bank Investor (for greater certainty, including TD Bank or Reliant Trust, to the extent it is funding at the Eurodollar Rate for and on behalf of GTA Funding, but excluding TD Bank or Reliant Trust, to the extent it is funding at the Eurodollar Rate for its own benefit and not on behalf of GTA Funding) funding at the Eurodollar Rate on behalf of a Conduit Investor in its Related Group (except in the case of a Conduit Cessation with respect to that Conduit Investor), 0.50% per annum, (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

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Tranche Period in respect of eurocurrency or eurodollar funding, lending or liabilities (or, if more than one percentage shall be so applicable, the daily average of such percentage for those days in such Eurodollar Tranche Period during which any such percentage shall be applicable) plus (C) the then daily net annual assessment rate (rounded upwards, if necessary, to the nearest 1/100 of 1%) as estimated by such Administrative Agent for determining the current annual assessment payable by such Administrative Agent to the Federal Deposit Insurance Corporation in respect of eurocurrency or eurodollar funding, lending or liabilities.

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

Eurodollar Tranche Period” means, with respect to a Eurodollar Tranche for the Investors in any Related Group, prior to the Termination Date, a period of up to one month requested by the Transferor and agreed to by the Administrative Agent for such Related Group, commencing on a Business Day requested by the Transferor and agreed to by such Administrative Agent; provided, that (i) in the absence of such agreement, each Eurodollar Tranche Period shall be such period as may be selected by the related Administrative Agent, (ii) if such Eurodollar Tranche Period would expire on a day which is not a Business Day, such Eurodollar Tranche Period shall expire on the next succeeding Business Day, (iii) if such Eurodollar Tranche Period would expire on (a) a day which is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Eurodollar Tranche Period shall expire on the next preceding Business Day or (b) a Business Day for which there is no numerically corresponding day in the applicable subsequent calendar month in which such Eurodollar Tranche Period ends, such Eurodollar Tranche Period shall expire on the last Business Day of such month and (iv) from and after the Termination Date, each Eurodollar Tranche Period shall be such period as may be selected by the related Administrative Agent pursuant to Section 2.3(d).

EU Securitization Regulation” means Regulation (EU) 2017/2402, as amended by Regulation (EU) 2021/557 and as further amended from time to time.

EU/UK Securitization Rules” means collectively: (a) the EU Securitization Regulation, together with all regulatory technical standards and implementing technical standards in relation thereto or applicable in relation thereto pursuant to any transitional arrangements made pursuant to the EU Securitization Regulation and, in each case, any binding guidance published by the European Banking Authority, the European Securities and Markets Authority or the European Insurance and Occupational Pensions Authority (in each case, including any successor or replacement organization thereto) or by the European Commission (all as amended from time to time); and (b) the UK Securitization Regulation, together with any relevant technical standards made (or otherwise applicable) in relation thereto and any binding guidance published by the Prudential Regulation Authority, the FCA or the Pensions Regulator (all as amended from time to time).

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

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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).

Excess Unbilled Receivables Amount” shall mean, (a) as reported on the Investor Reports dated as of the last day of every January, February, March and April, the amount by which the aggregate Outstanding Balance of all Unbilled Receivables that are Eligible Receivables (excluding any Short Term Unbilled Government Program Receivables) exceeds 35.00% of the aggregate Outstanding Balance of all Eligible Receivables; and (b) as shown on the Investor Reports dated as of the last day of every other month, the amount by which the aggregate Outstanding Balance of all Unbilled Receivables that are Eligible Receivables (excluding any Short Term Unbilled Government Program Receivables) exceeds 5.00% of the aggregate Outstanding Balance of all Eligible Receivables; provided, however, that in the case of (a) and (b), the Excess Unbilled Receivables Amount shall be the aggregate Outstanding Balance of all Unbilled Receivables that are Eligible Receivables (excluding any Short Term Unbilled Government Program Receivables) if FME KGaA is rated less than “BBB-” by Standard and Poor’s or “Baa3” by Moody’s.

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

Executive Order” shall mean the Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, as the same has been, or shall hereafter be, renewed, extended, amended or replaced.

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 Limit” means $900,000,000; provided that such amount may not at any time exceed the aggregate Commitments at any time in effect.

Facility L/C Sublimit” means $300,000,000.

FCA” has the meaning assigned to such term in Section 1.5.

Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as shall be set forth on the NYFRB’s Website from time to time, and published

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on the next succeeding Business Day by the NYFRB as the effective federal funds rate; provided that if the Federal Funds Effective Rate as so determined would be less than 0%, such rate shall be deemed to be 0% for the purposes of this Agreement.

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

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

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

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

Fitch” means Fitch, Inc. or its successors.

Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the LIBOR Rate.

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

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

FME KGaA Credit Facility” means the Sustainability-Linked Revolving Facility Agreement, dated July 1, 2021, among FME KGaA and FMCH, as the original borrowers, with the various mandated lead arrangers, lead arrangers, bookrunners, and coordinators party thereto, Crédit Agricole Corporate and Investment Bank, as sustainability coordinator, and Bank of America Europe DAC and Bank of America, N.A., as agent and swingline agent, respectively, 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.

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

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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 in the United States as of the date of this Agreement; except as follows:

(a)Before FMCH and all of its consolidated subsidiaries elect to report under IFRS, solely with respect to Financial Documents and Other Documents (as such terms are defined in the Parent Agreement) to be provided by FME KGaA on a consolidated basis with its subsidiaries pursuant to Section 6(a)(iv) of the Parent Agreement, references to GAAP (including any calculations in connection therewith), shall be construed to mean IFRS.

(b)From and after the date on which FMCH and all of its consolidated subsidiaries elect to report under IFRS, all references to GAAP (including any calculations in connection therewith) shall be construed to mean IFRS.

Government Program Receivable” means a Receivable under the Medicare, Medicaid or CHAMPUS/VA program, in each case other than a Receivable payable by a third- party Obligor.

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

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

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

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.

IFRS” means international financial reporting standards as adopted by the International Accounting Standards Board and in effect from time to time.

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

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

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

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

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

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

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

Indebtedness” or “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) obligations in respect of leases as determined under IFRS and (vi) obligations for which such Person is obligated pursuant to a Guaranty.

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

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

Independent Director” shall mean a director of the Transferor who (a) is not and has not, during the past five years, been a stockholder (whether direct, indirect or beneficial), customer, advisor or supplier of the Seller or any of its Affiliates (provided that indirect stock ownership of the Seller or of any Affiliate by any person through a mutual fund or similar

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diversified investment pool shall not disqualify such person from being an Independent Director unless such person maintains direct or indirect control of the investment decisions of such mutual fund or similar diversified investment pool); (b) is not and has not, during the past five years, been a director, officer, employee, affiliate or associate of the Seller or any of its Affiliates (other than the Transferor) (the Seller and its Affiliates other than the Transferor being hereinafter referred to as the “Corporate Group”); (c) is not a person related to any person referred to in clauses (a) and (b); (d) is not and has not, during the past five years, been a trustee, conservator or receiver for any member of the Corporate Group; (e) is not and has not, during the past five years, been a Person controlling or under common control of any person referred to in clauses (a) – (d); and (f) has (i) prior experience as an independent director for a corporation whose charter documents required the unanimous consent of all independent directors thereof before such corporation could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (ii) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective business, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities.

Initial Transfer Documents” shall have the meaning specified in Section 5.2(h). “Interest Component” shall mean, (i) with respect to any Commercial Paper issued on an interest-bearing basis, the interest payable on such Commercial Paper at its maturity (including any dealer commissions) and (ii) with respect to any Commercial Paper issued on a discount basis, the portion of the face amount of such Commercial Paper representing the discount incurred in respect thereof (including any dealer commissions).

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

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

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

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

Investor” means a Conduit Investor or a Bank Investor.

Investor Fee Letter” means the Twelfth Amended and Restated Investor Fee Letter dated the 2021 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

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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(a) hereof.

Invoice” means a document or electronic statement issued in accordance with the Credit and Collection Policy to an Obligor stating the merchandise and/or the services purchased thereunder, the amount payable and the due date therefor.

Joint Venture” means (i) an entity that was formerly a Transferring Affiliate and that has ceased to be directly or indirectly wholly-owned by FMCH, but in which FMCH directly or indirectly retains an equity interest and (ii) any other entity that is not directly or indirectly wholly-owned by FMCH and for whom collections on assets owing to such entity are deposited into a Special Account, in each case as specified in the most recent Cash Collections Report, or in the case of a newly identified Joint Venture, as specified in the next Cash Collections Report, which Cash Collections Report shall be delivered to Investors within 45 days of the first remittance of proceeds of the assets of such entity, following its creation as or conversion into an entity that is not directly or indirectly wholly-owned by FMCH, into a Special Account; it being understood that no entity shall be a Joint Venture for purposes of this Agreement if FMCH either (a) does not retain directly or indirectly at least a majority of the equity interest in such entity or (b) is not the administrator of the books, records and accounts of such entity.

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

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

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

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

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

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

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

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

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

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

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

LIBOR” has the meaning assigned to such term in Section 1.5.

LIBOR Rate” means, subject to Section 2.3(h), with respect to any Eurodollar Tranche Period for the Investors in any Related Group, the LIBO Screen Rate for the applicable LIBOR Tenor, as determined by the Administrative Agent for such Related Group as of the applicable Reference Time on or before the first day of such Eurodollar Tranche Period, as applicable, 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; provided, however, that the LIBOR Rate for any Eurodollar Tranche Period shall not be less than 0.00%.

LIBO Screen Rate” means, for any day and time, with respect to any Eurodollar Tranche for any Tranche Period, the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for U.S. Dollars for a period equal in length to such Tranche Period as displayed on such day and time on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent for its Related Group in its reasonable discretion); provided that if the LIBO Screen Rate as so determined would be less than 0.00%, such rate shall be deemed to be 0.00% for the purposes of this Agreement.

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LIBOR Tenor” means, with respect to any Eurodollar Tranche Period for the Investors in a Related Group, initially, 3 months or such other period as the Transferor and the Administrative Agent for such Related Group may agree in writing from time to time.

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

(RVF x LBR x NI) x (EMP/360)

Where:

RVF=the Rate Variance Factor at such time;

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

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

EMP      =

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

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

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

Loss Horizon” means, as of any date, the product of (a) a ratio (expressed as a percentage) computed by dividing (i) the sum of (A) the aggregate Outstanding Balance of all non-Medicare Receivables acquired by the Transferor during the seven (7) most recently ended calendar months plus (B) the aggregate Outstanding Balance of all Medicare Receivables acquired by the Transferor during the three (3) most recently ended calendar months, by (ii) the Net Receivable Balance as of the last day of the most recently ended calendar month and (b) the highest average Adjusted Default Ratio for any consecutive three (3) month period during the immediately preceding 12-month period.

Loss Percentage” means on any day the greater of (i) 2.50 times the Loss Horizon as of such day and (ii)12.50%.

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

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LP x NRB

Where:

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

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

Loss-to-Liquidation Ratio” means the ratio (expressed as a percentage) computed as of the last day of each calendar month by dividing (i) the aggregate Outstanding Balance of all Receivables that were actually written off during such month, 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 66⅔% 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 any Designated Account Agent, the applicable Account Agent Agreement, or (B) of FME KGaA or FMCH to cause the due and punctual performance and observation by such Transferring Affiliate or such Designated Account Agent of any such provision or, if such Transferring Affiliate or such Designated Account Agent shall fail to do so, to perform or observe any such provision, in each case pursuant to the Parent Agreement, (v) the financial condition, operations, businesses or properties, each on a consolidated basis, of FME KGaA, FMCH, NMC or the Transferor or (vi) the interests of the Agent, any Administrative Agent or any of the Investors under the Transaction Documents.

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

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Maximum Percentage Factor” means 100.00%.

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

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

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

Medicare Receivable” means any Receivable that is subject to the Medicare Regulations other than a Receivable payable by a third-party Obligor.

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

Minimum Amount” shall have the meaning specified in Section 5.1(h). “Moody’s” means Moody’s Investors Service, Inc.

MUFG” means MUFG Bank, Ltd. f/k/a The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, together with its successors and assigns.

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

Net Investment” means the sum of the cash amounts paid to the Transferor for each Incremental Transfer (NI) less the aggregate amount of Collections received and applied to reduce such Net Investment pursuant to Section 2.5, 2.6 or 2.9 hereof; provided that the Net

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Investment shall be restored and reinstated in the amount of any Collections so received and applied if at any time the distribution of such Collections is rescinded or must otherwise be returned for any reason. A portion of the Net Investment shall be deemed to be held by an 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:

(a)the Eligible Receivables Balance;

minus

(b)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;

minus

(c)

the Excess Unbilled Receivables Amount.

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

Non-Securitization Account Receivable Proxy” means an amount equal to $2,500,000, as such amount may be increased or decreased annually with the consent of the Transferor, the Agent and each Administrative Agent based upon the most recent report delivered to the Agent pursuant to Section 2.11(b) and the Agent’s recommendation following its review of collections and cash management systems utilized by Transferring Affiliates and Joint Ventures.

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

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

NPRBI” shall have the meaning specified in Section 2.13.

NYFRB” means the Federal Reserve Bank of New York.

NYFRB’s Website” means the website of the NYFRB at http://www.newyorkfed.org, or any successor source identified as such by the NYFRB from time to time.

NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for

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any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined be less than 0.00%, such rate shall be deemed to be 0.00% for purposes of this Agreement.

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; provided that 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, shall be deemed for purposes of this Agreement to be one Obligor with respect to such Receivable:

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

OFAC” means the Office of Foreign Assets Control of the U.S. Department of the Treasury.

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.

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Original Closing Date” means August 28, 1997.

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

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

Overnight Bank Funding Rate” means, for any day, the rate composed of both overnight federal funds and overnight Eurodollar borrowings by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.

Parent Agreement” means the Fourth Amended and Restated Parent Agreement, dated as of the 2021 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.

PATRIOT Act” has the meaning specified in Section 10.14.

Payment” has the meaning specified in Section 9.6.

Payment Notice” has the meaning specified in Section 9.6.

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 + LCO + LR + DLR + DR + SFR

NRB

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Where:

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

LCO      =

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

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

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

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

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

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

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

Person” means any corporation, limited liability company, natural person, firm, joint venture, partnership, trust, unincorporated organization, enterprise, government or any department or agency or any government.

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

Potential Termination Event” means an event which but for the lapse of time or the giving of notice, or both, would constitute a Termination Event.

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

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

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Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent for its Related Group) or in any similar release by the Federal Reserve Board (as determined by the Administrative Agent for its Related Group). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.

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

Proceeds” means “proceeds” as defined in Article 9 of the UCC as in effect on the date hereof.

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

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

Rate Variance Factor” means 2.50 or such other number, computed from time to time in good faith by the Agent (with the written consent of each Administrative Agent), that reflects the largest potential variance (from minimum to maximum) in selected interest rates over a period of time selected by the Agent from time to time, set forth in written notice by the Agent to each Administrative Agent, the Transferor and the Collection Agent.

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

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

Receivable” means the indebtedness of any Obligor, whether constituting an account, chattel paper, instrument, insurance claim, investment property or general intangible, arising in connection with the sale or lease of merchandise (including, without limitation, medicines) or the rendering of services, by an Originating Entity (other than a Joint Venture), and includes the right to payment of any Finance Charges and other obligations of such Obligor with respect thereto. For the avoidance of doubt, the term “Receivable” shall include all amounts payable by any Obligor in connection with any such sale or rendering of services, regardless of when an Invoice is issued therefor and regardless of any write-off with respect to such Receivable or any other change or adjustment to the accounting or invoicing with respect to

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such sale or rendering of services. Accordingly, the cancellation of an Invoice for a Receivable and the issuance of a new Invoice under a new Invoice number, a new Invoice date and/or a new Obligor name (or any other accounting or invoicing change) shall not result in the creation of a new Receivable or change the original due date of the Receivable. Similarly, if a portion of a Receivable owing by an Obligor is written-off but is subsequently re-billed to Medicare or another Obligor, the amount owing by Medicare or such other Obligor is part of the original Receivable and is not a new Receivable and the original due date of the Receivable will likewise remain unchanged.

Receivables Purchase Agreement” means the Third Amended and Restated Receivables Purchase Agreement dated as of the 2021 Closing Date by and between NMC, as seller, and the Transferor, as purchaser, as such agreement may be amended, modified or supplemented and in effect from time to time.

Recharacterization” shall have the meaning specified in Section 10.11.

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

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

Recovery Rate” means a percentage that shall initially be equal to 40% and shall be adjusted on any date specified by the Agent following receipt by the Agent of the annual report contemplated in Section 6.2(c)(ii) and evaluation by the Agent of the then effective recovery rate, which adjusted percentage shall be equal to the lesser of (1) 40% and (2) the average monthly recovery rate for the twelve consecutive calendar-months specified in such report.

Reference Time” means, with respect to any setting of the then-current Benchmark for the Investors in a Related Group, (1) if such Benchmark is the LIBOR Rate, 11:00 a.m. (London time) on the day that is two London banking days preceding the date of such setting, or such other date and time as the Transferor and the Administrative Agent for such Related Group may agree in writing and (2) if such Benchmark is not the LIBOR Rate, the time determined by such Administrative Agent in its reasonable discretion.

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

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

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

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

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

Related Group” means any of the following groups: (i) Liberty Street, as a Conduit Investor, and Scotiabank, as a Bank Investor and as an Administrative Agent, together with their respective successors and permitted assigns, (ii) GTA Funding, as a Conduit Investor, Reliant Trust, as a Bank Investor, and TD Bank as a Bank Investor and as an Administrative Agent, collectively with their respective successors and permitted assigns, (iii) Atlantic Securitization, as a Conduit Investor, and Credit Agricole, as a Bank Investor and as an Administrative Agent, together with their respective successors and permitted assigns, (iv) Thunder Bay, as a Conduit Investor, and RBC, as a Bank Investor and as an Administrative Agent, together with their respective successors and permitted assigns, (v) PNC, as a Bank Investor and as an Administrative Agent, together with its successors and permitted assigns and (vi) Victory Receivables, as a Conduit Investor, and MUFG, as a Bank Investor and as an Administrative Agent, together with their respective successors and permitted assigns.

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

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

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

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

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

(vi)all Proceeds of any of the foregoing.

Relevant Governmental Body” means the Federal Reserve Board or the NYFRB, or a committee officially endorsed or convened by the Federal Reserve Board or the NYFRB, or any successor thereto.

Reliant Trust” means Reliant Trust, a trust formed under the laws of the Province of Ontario, together with its successors and permitted assigns.

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

Removal Supplement” has the meaning specified for such term in the Transferring Affiliate Letter.

Retained Interest” has the meaning specified in Section 5.5.

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

RO Interest” has the meaning specified in Section 2.19.

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

Sanctioned Country” means, at any time, a country or territory that is or whose government is subject to or the target of any Sanctions.

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Sanctioned Person” means, at any time, (a) any Person currently the subject or the target of any Sanctions, including any Person listed in any Sanctions-related list of designated Persons maintained by OFAC or the U.S. Department of State, (b) any Person controlled by any such Person, (c) any Person that is operating, organized or resident in a Sanctioned Country, (d) any Person with whom engaging in trade, business or other activities is otherwise prohibited or restricted by Sanctions or (e) (i) an agency of the government of a Sanctioned Country, (ii) an organization controlled by a Sanctioned Country or (iii) a Person resident in a Sanctioned Country, in each case to the extent subject to a sanctions program administered by OFAC.

Sanctions” means economic, financial or other sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by OFAC or the U.S. Department of State, or other relevant U.S. sanctions authority, (b) by the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom or (c) by other relevant sanctions authorities to the extent compliance with the sanctions imposed by such other authorities would not entail a violation of applicable law.

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.

Securitization Regulations” means the EU Securitization Regulation and the UK Securitization Regulation; and references to “each Securitization Regulation” shall be construed accordingly.

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

Seller” means NMC and its successors and permitted assigns.

Seller Parties” means collectively the Originating Entities and the Transferor.

Service Performance Date” means, with respect to an Unbilled Receivable, the date on which the related Originating Entity has performed all material obligations required to be performed by it under the related Contract (as a result of which the Originating Entity could, if it chose to do so, issue an Invoice for the goods or services in question).

Servicing Fee” means the fees payable to the Collection Agent by (1) the Investors in a Related Group, with respect to a Tranche held by the Investors in such Related Group, in an amount equal to the Servicing Fee Percentage on the amount of the Net Investment allocated to such Tranche pursuant to Section 2.3 hereof and (2) each L/C Issuer, in an amount equal to the Servicing Fee Percentage on the Letter of Credit Obligations allocable to such L/C Issuer. Such fee shall accrue from the date of the initial purchase of an interest in the Receivables to the date on which the Percentage Factor is reduced to zero. Such fee shall be payable only from Collections pursuant to, and subject to the priority of payments set forth in,

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Section 2.5 hereof. After the Termination Date, such fee shall be payable only from Collections pursuant to, and subject to the priority of payments set forth in, Section 2.6 hereof.

Servicing Fee Percentage” means a per annum rate equal to 1.00%.

Servicing Fee Reserve” means at any time an amount equal to the product of (i) 2.50, (ii) the aggregate Outstanding Balance of all Receivables at such time, (iii) the Servicing Fee Percentage and (iv) the Estimated Maturity Period divided by 360.

Short Term” means, with respect to an Unbilled Government Program Receivable, the period consisting of the month in which the related Service Performance Date occurred and the first 12 days of the immediately following month.

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.

SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website on the immediately succeeding Business Day.

SOFR Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).

SOFR Administrator’s Website” means the NYFRB’s website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.

Special Account” means a special depository account maintained at a bank acceptable to each Administrative 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.

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

Standing JV Sweep Procedures” means, in the case of any Designated Joint Venture, procedures for (i) the prompt identification of all collections received at any Special Account that constitute proceeds of assets owned exclusively by such Designated Joint Venture and (ii) the weekly remittance of an amount equal to such collections to an account other than a

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Special Account, Intermediate Concentration Account or the Concentration Account, in each case subject to reasonable rounding.

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.

TD Bank” means The Toronto-Dominion Bank, a schedule I bank formed under the Bank Act (Canada), together with its successors and permitted assigns.

Term SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.

Term SOFR Notice” means a notification by an Administrative Agent to the Investors in its Related Group, the Agent, and the Transferor of the occurrence of a Term SOFR Transition Event.

Term SOFR Transition Event” means the determination by an Administrative Agent that (a) Term SOFR has been recommended for use by the Relevant Governmental Body, (b) the administration of Term SOFR is administratively feasible for such Administrative Agent and (c) a Benchmark Transition Event or an Early Opt-in Election, as applicable, has previously occurred resulting in a Benchmark Replacement in accordance with Section 2.3(h) that is not Term SOFR. For the avoidance of doubt, an Administrative Agent shall not be required to deliver a Term SOFR Notice after a Term SOFR Transition Event and may do so in its sole discretion.

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

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

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

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

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

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

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

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

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

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

Transfer Price” means with respect to any Incremental Transfer to be made by the Agent, on behalf of the Investors participating in such Incremental Transfer, (i) in the case of an Incremental Transfer (NI), the amount paid to the Transferor by such Investors as described in the related Transfer Certificate and (ii) in the case of an Incremental Transfer (L/C), the face amount of the Letter of Credit to be issued by the applicable L/C Issuer as described in the related Transfer Certificate.

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

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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); provided that, during the period from the Termination Date until the Final Collection Date, the Transferred Interest shall include the right to receive 100% of the Collections. The Transferred Interest in each Receivable, together with Related Security, Collections and Proceeds with respect thereto, shall at all times be equal to the Transferred Interest in each other Receivable, together with Related Security, Collections and Proceeds with respect thereto. To the extent that the Transferred Interest shall decrease as a result of a recalculation of the Percentage Factor, the Agent, on behalf of the applicable Investors, shall be considered to have reconveyed to the Transferor (without recourse, representation or warranty of any type or kind) an undivided percentage ownership interest in each Receivable, together with Related Security, Collections and Proceeds with respect thereto, in an amount equal to such decrease such that in each case the Transferred Interest in each Receivable shall be equal to the Transferred Interest in each other Receivable. Following the later to occur of the Termination Date and the Final Collection Date, the Transferred Interest shall be reduced to zero.

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

Transferring Affiliate Letter” means the Second Amended and Restated Affiliate Letter dated the 2021 Closing Date from the Transferring Affiliates to the Seller, as the same may be amended, restated, supplemented or otherwise modified from time to time with the consent of each Administrative Agent.

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

UK Securitization Regulation” means Regulation (EU) 2017/2402, as it forms part of the domestic law of the United Kingdom by virtue of the European Union (Withdrawal) Act 2018, as amended by the Securitisation (Amendment) (EU Exit) Regulations 2019 and as further amended from time to time.

Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.

Unbilled” means, with respect to any Receivable or category of Receivables, any Receivable for which an Invoice has not yet been issued but the Service Performance Date has occurred.

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Unrealized Contractual Adjustment Reserve” means the reserve maintained by the Collection Agent in accordance with its customary practices reflecting the difference between the Outstanding Balance of Receivables owing by certain commercial insurers and the Collection Agent’s estimate of what such commercial insurers will pay in respect of such Receivables. It is understood and agreed that Pre-Arranged Contractual Adjustments will be reflected in the initial Outstanding Balance of the applicable Receivables and accordingly will not be included in the Unrealized Contractual Adjustment Reserve. In addition, the Unrealized Contractual Adjustment Reserve will also include amounts sufficient to cover system-generated rebates, rebills and prompt pay discounts.

Unsold Transferred Interests” shall have the meaning specified in Section 10.15(c).

Unused Fee” means, with respect to each Related Group, the fee payable by the Transferor to the related Administrative Agent for the account of the applicable Bank Investors in such Related Group pursuant to Section 2.7(ii) hereof, the terms of which are set forth in the Investor Fee Letter.

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.

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

Volcker Rule” means Section 13 of the U.S. Bank Holding Company Act of 1956, as amended, and the applicable rules and regulations thereunder.

Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

SECTION 1.2.   Other Terms. Except as otherwise provided herein, 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”.

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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.   Interest Rates; LIBOR Notification. The interest rate on Eurodollar Tranche is determined by reference to the LIBOR Rate, which is derived from the London interbank offered rate (“LIBOR”). LIBOR is intended to represent the rate at which contributing banks may obtain short-term borrowings from each other in the London interbank market. On March 5, 2021, the U.K. Financial Conduct Authority (“FCA”) publicly announced that: (a) immediately after December 31, 2021, publication of the 1-week and 2-month U.S. Dollar LIBOR settings will permanently cease; immediately after June 30, 2023, publication of the overnight and 12-month U.S. Dollar LIBOR settings will permanently cease; and immediately after June 30, 2023, the 1-month, 3-month and 6-month U.S. Dollar LIBOR settings will cease to be provided or, subject to the FCA’s consideration of the case, be provided on a synthetic basis and no longer be representative of the underlying market and economic reality they are intended to measure and that representativeness will not be restored. There is no assurance that the dates announced by the FCA will not change or that the administrator of LIBOR and/or regulators will not take further action that could impact the availability, composition, or characteristics of LIBOR or the currencies and/or tenors for which LIBOR is published. Each party to this agreement should consult its own advisors to stay informed of any such developments. Public and private sector industry initiatives are currently underway to identify new or alternative reference rates to be used in place of LIBOR. Upon the occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, Section 2.3(h)(ii) and (iii) provide the mechanism for determining an alternative rate of interest. The Administrative Agent for its Related Group will promptly notify the Transferor and the Agent, pursuant to Section 2.3(h)(v), of any change to the reference rate upon which the interest rate on its Eurodollar Tranches is based. However, no Administrative Agent warrants or accepts any responsibility for, and shall not have any liability with respect to, the administration, submission, performance or any other matter related to LIBOR or other rates in the definition of “Eurodollar Rate” or with respect to any alternative or successor rate thereto, or replacement rate thereof (including, without limitation, (i) any such alternative, successor or replacement rate implemented pursuant to Section 2.3(h)(ii) or (iii), whether upon the occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, and (ii) the implementation of any Benchmark Replacement Conforming Changes pursuant to Section 2.3(h)(iv), including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the LIBOR Rate or have the same volume or liquidity as did LIBOR prior to its discontinuance or unavailability. Each Administrative Agent and its affiliates and/or other related entities may engage in transactions that affect the calculation of any successor or alternative rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case, in a manner adverse to the Transferor and its affiliates. Each Administrative Agent may select information sources or services in its reasonable discretion to ascertain any Benchmark or any component thereof, in each case pursuant to the terms of this Agreement, and

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shall have no liability to the Transferor, the Agent, any Investor or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

ARTICLE II

PURCHASE AND SETTLEMENTS

SECTION 2.1.   Facility. Upon the terms and subject to the conditions herein set forth, the Transferor may from time to time prior to the Termination Date, at its option, (i) convey, transfer and assign to the Agent, on behalf of the Investors, percentage ownership interests in the Receivables, together with Related Security, Collections and Proceeds with respect thereto and (ii) request one or more L/C Issuers to issue or cause the issuance of Letters of Credit, in each case subject to the terms hereof. Each such Transfer is made without recourse to the Transferor; provided, however, that the Transferor shall be liable for all representations, warranties, covenants and other agreements made by the Transferor pursuant to the terms of this Agreement or any other Transaction Document. The Transferred Interest arising in connection with the Transfers made hereunder shall be allocated among the Related Groups in accordance with their respective RG Transferred Interests as of any date of determination, and as among the Related Groups the RG Transferred Interests may fluctuate from time to time based on the Net Investment and Letter of Credit Obligations outstanding at such time. Subject to the terms and conditions set forth herein, the Agent shall accept such conveyance, transfer and assignment on behalf of the Investors. By accepting any conveyance, transfer and assignment hereunder, none of the Investors, the Administrative Agents or the Agent assumes or shall have any obligations or liability under any of the Contracts, all of which shall remain the obligations and liabilities of the Transferor and the Seller.

SECTION 2.2.   Incremental Transfers(NI); Certificates; Eligible Receivables. (a) Incremental Transfers(NI). Upon the terms and subject to the conditions herein set forth the Transferor may, at its option, request that an Incremental Transfer (NI) be made by the Agent, on behalf of each of the applicable Investors.

The Transferor shall, by written notice to the Agent substantially in the form of Exhibit A hereto (a “Notice of Incremental Transfer (NI)”) (with a copy to each Administrative Agent) given by telecopy or email, offer to convey, transfer and assign to the Agent, on behalf of the Investors, undivided percentage ownership interests in the Receivables and the other Affected Assets relating thereto. A Notice of Incremental Transfer (NI) shall be issued not later than 3:00 p.m. (New York time) at least one (1) Business Day prior to the proposed date of the Incremental Transfer (NI) requested therein. Each Notice of Incremental Transfer (NI) shall specify: (x) the desired Transfer Price (which shall be at least $1,000,000 or integral multiples of $250,000 in excess thereof) or, to the extent that the then available unused portion of the Facility Limit is less than such amount, such lesser amount equal to such available unused portion of the Facility Limit, (y) the desired date of such Incremental Transfer (NI) and (z) the desired Tranche Period(s) and allocations of the Net Investment of such Incremental Transfer thereto as required

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by Section 2.3 (it being understood that any request for a Eurodollar Tranche Period shall be subject to the approval of each applicable Administrative Agent). The Agent shall promptly advise each Administrative Agent of the allocation of the Transfer Price in respect of the requested Incremental Transfer (NI) based on the Incremental Transfer (NI) Ratable Share anticipated to be applicable as of the date of such proposed Incremental Transfer (NI). Each Administrative Agent will promptly notify the related Conduit Investor or each of the Bank Investors in its Related Group, as the case may be, of such Administrative Agent’s receipt of any request for an Incremental Transfer (NI) to be made to the Agent on behalf of such Person. To the extent that any such Incremental Transfer (NI) is requested of the Agent, on behalf of a Conduit Investor, such Conduit Investor shall instruct the Agent to accept or reject such offer by notice given to the Transferor and the Agent by telephone, telecopy or email by no later than the close of its business on the Business Day following its receipt of any such request. If any Conduit Investor does not fund the full amount of its Related Group’s proposed Incremental Transfer (NI) Ratable Share specified in such notice, or if there is no Conduit Investor in a Related Group, one or more of the Bank Investor(s) in such Related Group shall be required to fund the portion thereof not funded by a Conduit Investor (if any) in its Related Group in accordance with the last paragraph of this Section 2.2(a). In no event shall Reliant Trust, in its capacity as a Bank Investor, be required to fund any portion of its Related Group's proposed Incremental Transfer (NI) Ratable Share, if and to the extent that such portion is funded by The Toronto-Dominion Bank, in its capacity as a Bank Investor.

Each Notice of Incremental Transfer (NI) shall be irrevocable and binding on the Transferor and the Transferor shall indemnify each Investor against any loss or expense incurred by any Investor, either directly or indirectly (including, in the case of a Conduit Investor, through the related Liquidity Provider Agreement) as a result of any failure for any reason (including failure to satisfy any of the conditions precedent in respect thereof) by the Transferor to complete such Incremental Transfer (NI) including, without limitation, any loss (including loss of anticipated profits) or expense incurred by any Investor, either directly or indirectly (including, in the case of a Conduit Investor, pursuant to the related Liquidity Provider Agreement) by reason of the liquidation or reemployment of funds acquired by any Investor or a related Liquidity Provider (including, without limitation, funds obtained by issuing commercial paper or promissory notes or obtaining deposits as loans from third parties) for any Investor to fund such Incremental Transfer (NI).

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

By no later than 3:00 p.m. (New York time) on any Transfer Date, each Investor participating in the relevant Transfer shall remit its Incremental Transfer (NI) Ratable Share of

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the aggregate Transfer Price for such Transfer either (i) to the account of the related Administrative Agent specified therefor from time to time by such Administrative Agent by notice to such Investor or (ii) if so directed by such Administrative Agent, directly to the Transferor. The obligation of each Investor to remit its Incremental Transfer (NI) Ratable Share of any such Transfer Price shall be several from that of each other Investor, and the failure of any Investor to so make such amount available to its related Administrative Agent or the Transferor, as applicable, shall not relieve any other Investor of its obligation hereunder. If the portion of the Transfer Price payable by the Investors in a Related Group is remitted to the related Administrative Agent, then, following each Incremental Transfer (NI) and such Administrative Agent’s receipt of funds from the Investors in its Related Group participating in such Transfer as aforesaid, such Administrative Agent shall remit such portion of the Transfer Price to the Transferor’s account at the location indicated in Section 10.3 hereof, in immediately available funds. Unless an Administrative Agent shall have received notice from any Bank Investor in its Related Group participating in an Incremental Transfer (NI) that such Bank Investor will not make its share of any Transfer Price relating to such Incremental Transfer (NI) available on the applicable Transfer Date therefor, such Administrative Agent may (but shall have no obligation to) make such Bank Investor’s share of any such Transfer Price available to the Transferor in anticipation of the receipt by such Administrative Agent of such amount from such Bank Investor. To the extent such Bank Investor fails to remit any such amount to its Administrative Agent after any such advance by such Administrative Agent on such Transfer Date, such Bank Investor, on the one hand, and the Transferor, on the other hand, shall be required to pay such amount, together with interest thereon at a per annum rate equal to the Federal funds rate (as determined in accordance with clause (iii) 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.

(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 the 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

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Business Day plus the Transfer Price of any Incremental Transfer (NI) made on such day, if any, and (ii) the Transferred Interest in each Receivable, together with Related Security, Collections and Proceeds with respect thereto, shall be equal to the Transferred Interest in each other Receivable, together with Related Security, Collections and Proceeds with respect thereto.

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

(d)

[Reserved].

(e)Percentage Factor; Transferred Interest. The Percentage Factor shall be computed by the Collection Agent as of the opening of business of the Collection Agent on the effective date of this Agreement. Thereafter until the Termination Date, the Collection Agent shall recompute the Percentage Factor at the time of each Incremental Transfer and as of the close of business of the Collection Agent on each Business Day (other than a day after the Termination Date) and report such recomputation to the Agent monthly, in the Investor Report, and at such other times as may be requested by any Administrative Agent. The Percentage Factor shall remain constant from the time as of which any such computation or recomputation is made until the time as of which the next such recomputation, if any, shall be made, notwithstanding any additional Receivables arising, or any Incremental Transfer or any Reinvestment Transfer made, during any period between computations of the Percentage Factor. For the avoidance of doubt, the “Transferred Interest” after the Termination Date may be different from the Percentage Factor. As set forth in the definition of “Transferred Interest”, the Transferred Interest shall remain constant at 100% at all times on and after the Termination Date until the Final Collection Date, at which time the Transferred Interest shall be reduced to zero.

SECTION 2.3.   Selection of Tranche Periods and Tranche Rates.

(a)Prior to the Termination Date; Transferred Interest held on behalf of a Conduit Investor. At all times hereafter, but prior to the Termination Date with respect to any portion of the Net Investment held on behalf of a Conduit Investor that is funded through the issuance of Commercial Paper, such portion of the Net Investment shall be allocated to a CP Tranche Period as set forth in the definition of such term. Each Conduit Investor confirms that it is its intention to allocate all or substantially all of the Net Investment held on behalf of it to CP Tranche Periods, provided that such Conduit Investor or its Related CP Issuer may determine, from time to time, in its sole discretion, that funding such Net Investment through the issuance of Commercial Paper is not possible or is not desirable for any reason. If, prior to the Termination Date, any portion of the Net Investment held on behalf of a Conduit Investor is not funded

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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 were held by or on behalf of the Bank Investors, subject to the terms of the definition of “Tranche Rate”. In the case of any Tranche Period outstanding upon the Termination Date, such Tranche Period shall end on such date unless otherwise directed by the applicable Administrative Agent.

(b)After the Termination Date; Transferred Interest Held on behalf of a Conduit Investor. At all times on and after the Termination Date, with respect to any portion of the Transferred Interest which shall be held by the Agent on behalf of a Conduit Investor, such Conduit Investor or its Administrative Agent, as applicable, shall select all Tranche Periods and Tranche Rates applicable thereto.

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

(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)Illegality. 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

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Investor or such Liquidity Provider, as applicable), or any central bank or other governmental authority asserts that it is unlawful, for such Investor or such Liquidity Provider, as applicable, to fund the purchases or maintenance of Transferred Interests at the Eurodollar Rate, then (x) as of the effective date of such notice from such Investor to its Administrative Agent, the obligation or ability of the such Investor to fund its purchase or maintenance of Transferred Interests at the Eurodollar Rate shall be suspended until such Investor notifies its Administrative Agent that the circumstances causing such suspension no longer exist and (y) the Net Investment of each Eurodollar Tranche in which such Investor owns an interest shall either (1) if such Investor may lawfully continue to maintain such Transferred Interest at the Eurodollar Rate until the last day of the applicable Tranche Period, be reallocated on the last day of such Tranche Period to another Tranche Period in respect of which the Net Investment allocated thereto accrues Discount at a Tranche Rate other than the Eurodollar Rate or (2) if such Investor shall determine that it may not lawfully continue to maintain such Transferred Interest at the Eurodollar Rate until the end of the applicable Tranche Period, such Investor’s share of the Net Investment allocated to such Eurodollar Tranche shall be deemed to accrue Discount at the Base Rate from the effective date of such notice until the end of such Tranche Period.

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

(g)

[Reserved].

(h)

Replacement of LIBOR Rate.

(i)Subject to clauses (ii), (iii), (iv), (v), (vi) and (vii) of this Section 2.3(h), if prior to the commencement of any Tranche Period for a Eurodollar Tranche:

(1)the Administrative Agent for any Related Group determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Eurodollar Rate or the LIBOR Rate, as applicable (including because the LIBO Screen Rate is not available or published on a current basis), for such Tranche Period; provided that no Benchmark Transition Event shall have occurred at such time; or

(2)the Administrative Agent for any Related Group is advised by one or more of the Investors in its Related Group that the Eurodollar Rate or the LIBOR Rate, as applicable, for such Tranche Period will not adequately and fairly reflect the cost to such Investor (or Investors) of funding or purchasing their requested share of the Incremental Transfer or reallocating or maintaining their share (or its share) of the Net Investment for such Interest Period;

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then such Administrative Agent shall give notice thereof to the Investors in its Related Group, the Transferor and the Agent by telephone, telecopy or electronic mail as promptly as practicable thereafter and, until the Administrative Agent notifies the Investors in its Related Group, the Transferor and the Agent that the circumstances giving rise to such notice no longer exist, if any Notice of Incremental Transfer (NI) requests an Incremental Transfer at the Eurodollar Tranche Rate, such Incremental Transfer shall be made as an Incremental Transfer at the Base Rate (notwithstanding any election made by the Transferor pursuant to Section 2.3(c) or otherwise).

(ii)Notwithstanding anything to the contrary herein or in any other Transaction Document, if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date has occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Transaction Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Transaction Document and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Transaction Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Investors of any Related Group by its Administrative Agent without any amendment to, or further action or consent of any other party to, this Agreement or any other Transaction Document so long as such Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from the Investors in its Related Group.

(iii)Notwithstanding anything to the contrary herein or in any other Transaction Document and subject to the proviso below in this paragraph, if a Term SOFR Transition Event and its related Benchmark Replacement Date has occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Transaction Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Transaction Document; provided that, this clause (iii) shall not be effective unless the Administrative Agent for any Related Group has delivered a Term SOFR Notice to the Investors in its Related Group, the Transferor and the Agent.

(iv)In connection with the implementation of a Benchmark Replacement, the Administrative Agent for any Related Group will have the right to make Benchmark Replacement Conforming Changes from time to time with respect to the Tranche Rate for its Related Group and, notwithstanding anything to the contrary herein or in any other

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Transaction Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Transaction Document. However, no such Benchmark Replacement Conforming Changes will go into effect until 30 days after such Administrative Agent notifies the Transferor of such changes.

(v)The Administrative Agent will promptly notify the Investors in its Related Group, the Transferor and the Agent of (A) any occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, (B) the implementation of any Benchmark Replacement, (C) the effectiveness of any Benchmark Replacement Conforming Changes, (D) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (vi) below and (E) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent of any Related Group or, if applicable, any Investor (or Investors) in its Related Group pursuant to this Section 2.3(h), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Transaction Document, except, in each case, as expressly required pursuant to this Section 2.3(h).

(vi)Notwithstanding anything to the contrary herein or in any other Transaction Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR or the LIBOR Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by any Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then such Administrative Agent shall, to the extent necessary to implement the Benchmark Replacement, modify the definition of “Eurodollar Tranche Period” or “Tranche Period” for any Benchmark settings for its Related Group at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then such Administrative Agent shall, to the extent necessary to implement the Benchmark Replacement, modify the definition of “Eurodollar Tranche Period” or “Tranche Period” for all Benchmark settings for its Related Group at or after such time to reinstate such previously removed tenor.

(vii)Upon the Transferor’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Transferor may revoke any request for a purchase of, reallocation of, conversion to or continuation of any share of the Net Investment at the

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Eurodollar Rate to be purchased, reallocated, converted or continued, as applicable, during any Benchmark Unavailability Period and, failing that, the Transferor will be deemed to have converted any such request into a request for an Incremental Transfer, or reallocation or conversion to, a BR Tranche. During any Benchmark Unavailability Period or at any time that a tenor for the then- current Benchmark is not an Available Tenor, the component of the Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Base Rate.

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

SECTION 2.5.   Non-Liquidation Settlement and Reinvestment Procedures.

(a)On each day after the date of any Incremental Transfer but prior to the Termination Date and provided that no Potential Termination Event shall have occurred and be continuing, the Collection Agent shall, out of Collections received on or prior to such day and not previously applied or accounted for: (i) set aside and hold in trust for the Agent, on behalf of the applicable Investors (or deposit into the Collection Account if so required pursuant to Section 2.12 hereof), an amount equal to all Discount, L/C Fees, RO Interest and the Servicing Fee accrued through such day and not so previously set aside or paid, (ii) set aside the amount of any Reimbursement Obligation that shall have arisen and then remain unpaid and (iii) apply the balance of such Collections remaining after application of Collections as provided in clauses (i) and (ii) of this Section 2.5 hereof to the Transferor, for the benefit of the Agent, on behalf of the applicable Investors, to the purchase of additional undivided percentage interests in each Receivable pursuant to Section 2.2(b) hereof. Any Collections so set aside as described in clause (i) above shall be allocated among the Related Groups ratably in proportion to the accrued Discount, L/C Fees, RO Interest and Servicing Fee with respect to the Investors in each such Related Group. Any Collections so set aside as described in clause (ii) above shall be allocated among the Related Groups that contain L/C Issuers ratably in proportion to the outstanding Reimbursement Obligation of all L/C Issuers at such time.

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(b)On each Remittance Date, the Collection Agent shall, from the amounts set aside as described in Section 2.5(a), deposit to the applicable Administrative Agent’s account, for the benefit of the related Investors, an amount equal to the accrued and unpaid Discount for any Tranche Period then ending (in the case of the last day of a Tranche Period), the accrued and unpaid L/C Fees and RO Interest and Reimbursement Obligations, as applicable, and shall deposit to its own account an amount equal to the accrued and unpaid Servicing Fee. The applicable Administrative Agent, upon its receipt of such amounts in such Administrative Agent’s account, shall distribute such amounts to the applicable Investors entitled thereto as set forth above and, in the case of Credit Agricole, as Administrative Agent for its Related Group, in accordance with the CACIB Group Letter Agreement.

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

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

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

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

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

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

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amount such that, when applied to the then unpaid Reimbursement Obligations and otherwise held to Cash-Collateralize the then outstanding Letters of Credit, will result in the Percentage Factor being less than or equal to the Maximum Percentage Factor. Any amounts received by Credit Agricole, as Administrative Agent for its Related Group, pursuant to this Section 2.6 shall be distributed in accordance with the CACIB Group Letter Agreement.

(b)On the Termination Date and on each day thereafter, and on each day on which a Termination Event or a Potential Termination Event has occurred and is continuing, the Collection Agent shall deposit into the Collection Account all Collections received on such day. Pending such deposit, the Collection Agent shall hold such Collections in trust for the benefit of the Investors. In addition, on the Termination Date or the day on which a Termination Event or Potential Termination Event has occurred and is continuing, the Collection Agent shall deposit to each Administrative Agent’s account, for the benefit of the applicable Investors, any amounts set aside pursuant to Section 2.5 above which have been allocated to such Administrative Agent’s Related Group as described in Section 2.5.

(c)On the Termination Date and on each day thereafter, and on each day on which a Termination Event or a Potential Termination Event has occurred and is continuing, the Collection Agent shall (or, if the Agent has assumed exclusive control over the Collection Account, shall request the Agent to) distribute funds then available in the Collection Account in the following order and priority:

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

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

Third, if such day is the last day of any month and if the Transferor, the Seller or any Affiliate of the Transferor or the Seller is not then the Collection Agent, to the Collection Agent’s account, in payment of the accrued and unpaid Servicing Fee due to the Collection Agent;

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

Fifth, to the Agent and each Administrative Agent, ratably based on all other Aggregate Unpaids owing to the Agent or the members of any Related Group; and

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Sixth, if the Transferor, the Seller or any Affiliate of the Transferor or the Seller is the Collection Agent, to its account as Collection Agent, in payment of the accrued and unpaid Servicing Fee.

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

(d)Following the later to occur of the Termination Date and the Final Collection Date, (i) the Collection Agent shall recompute the Percentage Factor, (ii) the Agent, on behalf of the Investors, shall be considered to have reconveyed to the Transferor all of the right, title and interest in and to the Affected Assets (including the Transferred Interest) without recourse, representation or warranty of any type or kind, (iii) the Collection Agent shall pay to the Transferor any remaining Collections set aside and held by the Collection Agent for the Investors pursuant to this Section 2.6 and (iv) the Agent, on behalf of the Investors, shall execute and deliver to the Transferor, at the Transferor’s expense, such documents or instruments as are necessary to terminate the Agent’s interests in the Affected Assets. Any such documents shall be prepared by or on behalf of the Transferor.

SECTION 2.7.   Fees. Notwithstanding any limitation on recourse contained in this Agreement, on the second Business Day of each month the Transferor shall pay the following non-refundable fees: (i) to each Administrative Agent for the account of the applicable Investors in its Related Group, the Drawn Fee, (ii) to each Administrative Agent for the account of the applicable Bank Investors in its Related Group, the Unused Fee 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

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reflect the purchase and sale of the Transferred Interests hereunder, execute and file such financing or continuation statements or amendments thereto or assignments thereof as may be requested by the Agent, any Administrative Agent or any of the Investors and (y) mark its respective master data processing records and other documents with a legend describing the conveyance to the Transferor of the Receivables (in the case of the Seller) and to the Agent, for the benefit of the Investors, of the Transferred Interest. The Transferor shall, and will cause the Seller to, upon request of the Agent, any Administrative Agent or any of the Investors obtain such additional search reports as the Agent, any Administrative Agent or any of the Investors shall request. To the fullest extent permitted by applicable law, the Agent shall be authorized to sign and file financing statements , continuation statements and amendments thereto relating to the Receivables, Related Security and Collections and assignments thereof to the Agent or any successor or permitted assign of the Agent without the Transferor’s or the Seller’s signature. 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 the 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.

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(c)In addition and without limiting the authority of the Agent set forth in subsection (b) above, but subject to subsection (d) below, the Transferor shall (i) cause each Originating Entity to instruct any or all of the Special Account Banks (which instructions shall be maintained in full force and effect at all times) to transfer directly to the Concentration Account or to an Intermediate Concentration Account all Collections from time to time on deposit in the applicable Special Accounts in accordance with the terms set forth in the applicable Special Account Letter and Section 5.1(h) and (ii) instruct each Intermediate Concentration Account Bank (which instructions shall be maintained in full force and effect at all times) to transfer directly to the Concentration Account all Collections from time to time on deposit in the applicable Intermediate Concentration Accounts on a daily basis in accordance with the terms set forth in the applicable Intermediate Concentration Account Agreement. In the event the Transferor shall at any time determine, for any of the reasons described in subsection (d) below, that the Transferor or any Originating Entity shall be unable to comply fully with the requirements of this subsection (c), the Transferor shall promptly so advise the Agent and each Administrative Agent, and the Transferor, the Agent and each Administrative Agent shall commence discussions with a view toward implementing an alternative arrangement therefor satisfactory to the Agent and each Administrative Agent.

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

SECTION 2.9.   Deemed Collections; Application of Payments. If on any day the Outstanding Balance of a Receivable is either (x) reduced as a result of any defective, rejected or returned merchandise or services, any discount, credit, Contractual Adjustment, rebate, dispute, warranty claim, repossessed or returned goods, chargeback, allowance, any billing adjustment (including, without limitation, any cancellation of an Invoice and reissuance of a new Invoice relating to the same sale or service) or other adjustment, or (y) reduced or canceled as a result of a setoff or offset in respect of any claim by any Person (whether such claim arises out of the same or a related transaction or an unrelated transaction), the Transferor shall be deemed to have received on such day a Collection of such Receivable in the amount of such reduction or cancellation and the Transferor shall pay to the Collection Agent an amount equal to such reduction or cancellation and such amount shall be applied by the Collection Agent as a Collection in accordance with Section 2.5 or 2.6 hereof, as applicable.

(a)If on any day it is determined that (i) any of the representations or warranties in Article III was untrue with respect to a Receivable as of the date such representation or warranty was made or (ii) any of the representations or warranties set forth in Section 3.1(d) or Section 3.1(j) becomes untrue with respect to a Receivable (whether on or after

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the date of any transfer of an interest therein to the Agent or any of the Investors as contemplated hereunder) or (iii) a Receivable that was formerly treated as or represented to be an Eligible Receivable does not satisfy the requirements in paragraph (xi) of the definition of Eligible Receivable or becomes a Diluted Government Program Receivable, the Transferor shall be deemed to have received on such day a Collection on such Receivable in full and the Transferor shall on such day pay to the Collection Agent an amount equal to the Outstanding Balance of such Receivable (determined without giving effect to any write-off with respect thereto) and such amount shall be allocated and applied by the Collection Agent as a Collection allocable to the Transferred Interest in accordance with Section 2.5 or 2.6 hereof, as applicable.

(b)Any payment by an Obligor in respect of any indebtedness owed by it to any Transferring Affiliate, 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 to the Transferor or the Collection Agent, be applied as a Collection of any Receivable of such Obligor included in the Transferred Interest (starting with the oldest such Receivable) or the extent of any amounts then due and payable thereunder before being applied to any other receivable or other indebtedness of such Obligor.

SECTION 2.10.   Payments and Computations, Etc. All amounts to be paid or deposited by the Transferor or the Collection Agent hereunder shall be paid or deposited in accordance with the terms hereof no later than 12 p.m. (New York City time) on the day when due in immediately available funds; if such amounts are payable to the Agent or any Administrative Agent (whether on behalf of any of the Investors or otherwise) they shall be paid or deposited in the applicable account indicated in Section 10.3 hereof, until otherwise notified by the Agent or such Administrative Agent, as the case may be. The Transferor shall, to the extent permitted by law, pay to each Administrative Agent, for the benefit of itself and the Investors in its Related Group, upon demand, interest on all amounts owing to such Administrative Agent or such Investors not paid or deposited when due hereunder at a rate equal to 2% per annum plus the Base Rate. All computations of Discount, interest and all per annum fees hereunder shall be made on the basis of a year of 360 days for the actual number of days (including the first but excluding the last day) elapsed. Any computations by an Administrative Agent of amounts payable by the Transferor hereunder to such Administrative Agent or any Investor in its Related Group shall be binding upon all parties hereto absent manifest error. All payments to be made by the Transferor or the Collection Agent hereunder or under any other Transaction Document shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff.

SECTION 2.11.   Reports. (a) Investor Report. 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

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Seller) have been made by the Transferor under the Receivables Purchase Agreement or by the Seller under the Transferring Affiliate Letter, as applicable, in accordance with the respective terms of such agreement, (iv) a report specifying the aggregate Outstanding Balance of all Receivables for each of the Obligors representing the ten largest percentages of the aggregate Outstanding Balance of all Receivables, together with information on the agings of such Receivables, (v) confirmation that NMC continues to comply with its obligations under Section 5.5 (a) to (c) below with regard to the Retained Interest and (vi) such other information as the Agent or any Administrative Agent may reasonably request. (b) Cash Collections Report. On or prior to the date occurring forty-five (45) days after the last Business Day of each month, the Collection Agent shall prepare and forward to the Agent and each Administrative Agent a report specifying as of the last day of such month (i) the name of each Joint Venture for whom the proceeds of assets owned by such Joint Venture are being deposited into a Special Account, (ii) the Special Accounts into which the proceeds of assets owned by a Joint Venture are being deposited and the names of any Transferring Affiliates using those Special Accounts, (iii) the aggregate amount of deposits made to any Special Account during such month and the portion of such deposits constituting proceeds of assets of such Joint Venture deposited during such month, (iv) any amounts remitted during such month to a Joint Venture directly and not to any Special Account that constitute assets of the Transferor, (v) in the case of any Special Account into which proceeds of assets of a Designated Joint Venture are being deposited, confirmation that the Standing JV Sweep Instructions have been implemented with respect to such Special Account and (vi) the name of any Joint Venture that was, but has ceased to be, a Designated Joint Venture. Information relating to any newly identified Joint Venture shall be included in such report promptly following the identification thereof, and in any event not later than the date occurring 45 days after the first remittance to any Special Account of proceeds of any asset owned by such Joint Venture. In the event any amounts owing to any Person that is neither the Seller, a Transferring Affiliate nor a Joint Venture, the Cash Collections Report shall in addition provide the foregoing information in respect of such Person.

SECTION 2.12.   Collection Account. The Agent shall maintain with a bank selected by the Agent (with the consent of each Administrative Agent) a segregated account (the “Collection Account”), in the Agent’s or the Transferor’s name and bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Agent, on behalf of the Investors; provided that the Agent may, in its discretion, elect to use the Concentration Account as the Collection Account. The Agent shall have the right to assume exclusive control over the Collection Account. If no Collection Agent Default, Termination Event or Potential Termination Event has occurred and is continuing, the Collection Agent shall remit daily within forty-eight hours of receipt to either the Concentration Account or an Intermediate Concentration Account all Collections received with respect to any Receivables in accordance with Section 5.3(h). During the continuance of a Collection Agent Default or a Termination Event or a Potential Termination Event, and at all times on and after the Termination Date, the Collection Agent shall remit daily within forty-eight hours of receipt to the Collection Account all Collections received with respect to any Receivables. Funds on deposit in the Collection Account (other than investment earnings) shall be invested by the Collection Agent (or, if the Agent has assumed exclusive control over the Collection Account, the Agent) in Eligible Investments that will mature so that such funds will be available prior to each Remittance Date following such investment. On each Remittance Date, such funds on deposit, together with all interest and

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earnings (net of losses and investment expenses) thereon, in the Collection Account shall be made available for application in accordance with the terms of Section 2.6 or otherwise for application toward payments required to be made hereunder (including Discount) by the Transferor. On the Final Collection Date, any funds remaining on deposit in the Collection Account shall be paid to the Transferor.

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

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

SECTION 2.15.   Addition and Removal of Transferring Affiliates. (a)(i) If (1) one or more wholly-owned Subsidiaries of FMCH (other than the Transferring Affiliates) now owned or hereafter acquired, is primarily engaged in the same business as is conducted on the date hereof by the Originating Entities or (2) FMCH reorganizes its corporate structure such that facilities generating Receivables on the date hereof (or acquired as contemplated by clause (1)) are owned by one or more additional wholly-owned Subsidiaries of FMCH, any or all of the wholly-owned Subsidiaries referred to in clauses (1) and (2) may become Transferring Affiliates under this Agreement, or (ii) if any existing Transferring Affiliate wishes to be removed as a party to the Transferring Affiliate Letter, FCMH may also remove such existing Transferring Affiliate from being a Transferring Affiliate under this Agreement, in each case if the following conditions precedent have been met:

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

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

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

Notwithstanding anything to the contrary in this Section 2.15(a), if any Existing Transferring Affiliate wishes to be removed as a party to the Transferring Affiliate Letter, such Existing Transferring Affiliate may be removed as a Transferring Affiliate under this Agreement and the Transferring Affiliate Letter if the following conditions have been met:

(A)each Administrative Agent shall have received a Removal Supplement executed by such outgoing Transferring Affiliate, the Seller, and the Transferor and acknowledged by the Agent, together with such other instruments, documents and agreements as any Administrative Agent may reasonably request in connection therewith; and

(B)the Transferor shall have delivered to each Administrative Agent and the Agent an Officer’s Certificate of the Collection Agent (each, an “Officer’s Certificate regarding the Removal of Transferring Affiliates”) on the date of such removal:

(1)specifying the name of each Existing Transferring Affiliate being removed on such date; and

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(2)certifying that after giving effect to the removal of all Existing Transferring Affiliates being removed on such date, (i) the Percentage Factor shall not exceed the Maximum Percentage Factor, (ii) no Termination Event or Potential Termination Event shall then be continuing and (iii) the aggregate Outstanding Balance of all Receivables originated by the remaining Transferring Affiliates is at least $1,050,000,000.

(b)Upon the addition or removal of any Transferring Affiliate pursuant to subsection (a) above, the provisions of this Agreement, including Exhibit Q, shall, without further act or documentation, be deemed amended, and in the case of any such Subsidiary being added as a Transferring Affiliate, to apply to any such entity 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 entity as well as each then existing Transferring Affiliate.

SECTION 2.16.   Optional Repurchase of Transferred Interest. The Transferor may at any time at its option elect to repurchase the Transferred Interest on not less than sixty (60) days’ prior written notice to each Administrative Agent (a “ Repurchase Notice”) specifying the date on which such repurchase shall occur (the “ Repurchase Date”) and that such Repurchase Date shall be the Termination Date hereunder. By no later than 11:00 a.m. (New York time) on the Repurchase Date, the Transferor shall (a) pay to each Administrative Agent, for the account of the members of its Related Group, an amount (the “Repurchase Price”) equal to the sum of (i) the portion of the Net Investment funded by the Investors in such Related Group, (ii) all Discount accrued and to accrue thereon through the last day of the applicable Tranche Period(s) to which such Net Investment has been allocated and, (iii) the aggregate unpaid amount of all Reimbursement Obligations owing to the Bank Investors in such Related Group and (iv) all other Aggregate Unpaids owing to the members of such Related Group or any related Indemnified Party under the Transaction Documents accrued through the date of such payment and (b) pledge to the Agent for the benefit of all L/C Issuers cash in an aggregate amount sufficient to fully Cash-Collateralize all Letters of Credit then outstanding. The Repurchase Price payable with respect to any Related Group shall be calculated by the related Administrative Agent and notified to the Transferor, which calculation shall be conclusive and binding absent manifest error. By delivering a Repurchase Notice the Transferor shall be deemed to have designated the Repurchase Date as the “Termination Date” as contemplated by clause (i) of the definition of such term.

SECTION 2.17.   Letters of Credit.

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

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obligation on the part of any other Investor to provide funding therefor. In requesting any Letter of Credit hereunder, due regard shall be given to maintaining to the extent practicable each Related Group’s RG Transferred Interest at a percentage level corresponding to such Related Group’s FL Ratable Share.

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

Notwithstanding anything to the contrary herein, Reliant Trust shall not be requested to act as an L/C Issuer or to provide a Letter of Credit by the Transferor.

SECTION 2.18.   Issuance and Modification of Letters of Credit.

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

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

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

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

(e)Notwithstanding anything herein to the contrary, an L/C Issuer shall not have any obligation to issue any Letter of Credit if: (i) any of the conditions set forth in Section 4.3 shall not have been satisfied or waived on the proposed date of issuance of such Letter of

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Credit; (ii) any order, judgment or decree of any governmental authority or arbitrator shall by its terms purport to enjoin or restrain the such L/C Issuer from issuing such Letter of Credit, or any law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any governmental authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C issuer is not otherwise compensated hereunder) not in effect on the 2013 Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense that was not applicable on the 2013 Closing Date and that such L/C Issuer in good faith deems material to it; (iii) the issuance of such Letter of Credit would violate any law or one or more policies of such L/C issuer applicable to letters of credit generally; or (iv) such Letter of Credit is to be denominated in a currency other than U.S. Dollars.

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

SECTION 2.19.   Disbursements and Reimbursements under Letters of Credit.

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

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

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

SECTION 2.20.   Documentation in connection with Letters of Credit.

The Transferor agrees to be bound by the terms of each Letter of Credit Application and by each L/C Issuer’s interpretations of any Letter of Credit issued by such L/C Issuer for the Transferor and by such L/C Issuer’s written regulations and customary practices relating to letters of credit, though such L/C Issuer’s interpretation of such regulations and practices may be different from the Transferor’s own. In the event of a conflict between a Letter of Credit Application and

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this Agreement, this Agreement shall govern. It is understood and agreed that, except in the case of gross negligence or willful misconduct by an L/C Issuer, such L/C Issuer shall not be liable for any error, negligence and/or mistakes, whether of omission or commission, in following the Transferor’s instructions or those contained in the Letters of Credit issued by such L/C Issuer or any modifications, amendments or supplements thereto.

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

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

SECTION 2.22.   Reimbursement Obligations.

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

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

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

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

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(iv)the lack of power or authority of any signer of, or lack of validity, sufficiency, accuracy, enforceability or genuineness of, any draft, demand, instrument, certificate or other document presented under any Letter of Credit, or any such draft, demand, instrument, certificate or other document proving to be forged, fraudulent, invalid, defective or insufficient in any respect or any statement therein being untrue or inaccurate in any respect, even if the Agent, any Administrative Agent or the L/C Issuer has been notified thereof;

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

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

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

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

(ix)

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

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

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

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

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

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SECTION 2.23.   Indemnity in connection with Letters of Credit.

In addition to other amounts payable hereunder, the Transferor hereby agrees to protect, indemnify, pay and save harmless the Agent, each L/C Issuer and any of the L/C Issuer’s Affiliates that have issued a Letter of Credit from and against any and all claims, demands, liabilities, damages, penalties, interest, judgments, losses, costs, charges and expenses (including Attorney Costs) which the Agent, any Administrative Agent, any L/C Issuer or any of their respective Affiliates may incur or be subject to as a consequence, direct or indirect, of the issuance of any Letter of Credit, except to the extent resulting from (a) the gross negligence or willful misconduct of the party to be indemnified as determined by a final non-appealable judgment of a court of competent jurisdiction or (b) the wrongful dishonor by an L/C Issuer of a proper demand for payment made under any Letter of Credit, except if such dishonor resulted from any act or omission, whether rightful or wrongful, of any present or future de jure or de facto governmental authority (all such acts or omissions herein called “Governmental Acts”).

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

As between the Transferor, on the one hand, and the Agent, the L/C Issuers, the Administrative Agents, the Bank Investors and the Conduit Investors on the other, the Transferor assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by, the respective beneficiaries of such Letter of Credit. In furtherance and not in limitation of the respective foregoing, none of the Agent, the L/C Issuers, the Administrative Agents, the Bank Investors or the Conduit Investors shall be responsible for: (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for an issuance of any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the applicable L/C Issuer or its Administrative Agent shall have been notified thereof); (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) the failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of the Transferor against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among the Transferor and any beneficiary of such Letter of Credit or any such transferee; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, electronic mail, cable, telegraph, telex, facsimile or otherwise, whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (viii) any consequences arising from causes beyond the control of the Agent, the L/C Issuers, the Administrative Agents, the Bank Investors and the Conduit Investors, including any Governmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the L/C Issuers’ rights or powers hereunder. Nothing in the preceding sentence shall relieve any L/C Issuer from liability for its gross negligence or willful misconduct, as determined by a final non-appealable

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judgment of a court of competent jurisdiction, in connection with actions or omissions described in such clauses (i) through (viii) of such sentence. In no event shall the Agent, the L/C Issuers, the Administrative Agents, the Bank Investors or the Conduit Investors or their respective Affiliates, be liable to the Transferor or any other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit.

Without limiting the generality of the foregoing, the L/C Issuers and each of their respective Affiliates (i) may rely on any written communication believed in good faith by such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by an L/C Issuer or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on any L/C Issuer or its respective Affiliates, in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and may honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.

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

ARTICLE III

REPRESENTATIONS AND WARRANTIES

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

(a)Corporate Existence and Power. The Transferor is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation and has all corporate power and all material governmental licenses, authorizations,

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consents and approvals required to carry on its business in each jurisdiction in which its business is now conducted. The Transferor is duly qualified to do business in, and is in good standing in, every other jurisdiction in which the nature of its business requires it to be so qualified, except where the failure to be so qualified or in good standing would not have a Material Adverse Effect.

(b)Corporate and Governmental Authorization; Contravention. The execution, delivery and performance by the Transferor of this Agreement, the Receivables Purchase Agreement, the Fee Letters, the Transfer Certificates, the Letter of Credit Applications and the other Transaction Documents to which the Transferor is a party are within the 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 Letter of Credit Applications 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, the Cash Collections 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 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.

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

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

(h)Use of Proceeds. No proceeds of any Transfer will (i) 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 or (ii) be used by the Transferor in any manner that will violate Anti-Corruption Laws, Anti-Terrorism Laws or Sanctions.

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

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

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

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into or consolidated with any other Person or been the subject of any proceeding under Title 11, United States Code (Bankruptcy), except in each case as described on Exhibit H.

(l)Nature of Receivables. Each Receivable treated by the Transferor or the Collection Agent as an Eligible Receivable (including, without limitation, in any Investor Report, Cash Collections Report or other report delivered pursuant to Section 2.11 hereof or in the calculation of the Net Receivables Balance) is in fact an Eligible Receivable. Without limiting the generality of the foregoing, the Transferor has not treated as an Eligible Receivable for any purpose hereunder a Receivable that was originated by any Transferring Affiliate following the date it ceased to be a wholly-owned Subsidiary of FMCH.

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

(n)Credit and Collection Policy. Since September 30, 2012, there have been no material changes in the Credit and Collection Policy other than as permitted hereunder. Since such date, no material adverse change has occurred in the overall rate of collection of the Receivables.

(o)Collections and Servicing. Since September 30, 2012, there has been no material adverse change in the ability of the Collection Agent (to the extent it is the Seller, the Transferor or any Subsidiary or Affiliate of any of the foregoing) to service and collect the Receivables.

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

(q)Not an Investment Company; Not a Covered Fund. The Transferor is not, and is not controlled by, an “investment company” within the meaning of the Investment Company Act of 1940, as amended (the “1940 Act”), or is exempt from all provisions of the 1940 Act. The Transferor is not a “covered fund” as defined in the Volcker Rule by reason of its reliance on Section 3(c)(5) of the 1940 Act for its exemption from being an investment company under the 1940 Act.

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

(s)Special Account Banks, Intermediate Concentration Account Banks and Concentration Bank. The names and addresses of all the Special Account Banks (and, if applicable, the Designated Account Agent in respect thereof), the Intermediate Concentration Account Banks and the Concentration Account Bank, together with the account numbers of the Special Accounts at such Special Account Banks, the account numbers of the Intermediate Concentration Accounts at such Intermediate Concentration Account Banks and the account number of the Concentration Account of the Transferor at the Concentration Account Bank, are set forth on Schedule IV hereto (as such schedule may be updated from time to time in accordance with the terms hereof, the “Account Schedule”) (or at such other Special Account

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Banks, Intermediate Concentration Account Banks or Concentration Account Bank, with such other Special Accounts, Intermediate Concentration Accounts or Concentration Account or with such other Designated Account Agents as have been notified to each Administrative Agent in accordance with Section 5.2(e)). The Account Schedule sets forth all depository accounts and locations to which Obligors are instructed to remit payments on the Receivables. This Agreement, together with the Concentration Account Agreement and the Intermediate Concentration Account Agreements, is effective to, and does, transfer to the Agent, for the benefit of the Investors, all right, title and interest of the Transferor in and to the Concentration Account and each Intermediate Concentration Account. The Transferor has not granted to any Person (other than the Agent under the Concentration Account Agreement and the Intermediate Concentration Account Agreements) dominion and control over the Concentration Account or any Intermediate Concentration Account, or the right to take dominion and control over the Concentration Account or any Intermediate Concentration Account at a future time or upon the occurrence of a future event; neither the Transferor nor any other Parent Group Member has granted to any Person dominion and control over any Special Account, or the right to take dominion or control over any Special Account at a future time or upon the occurrence of a future 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, (i) the Seller purchased such Receivable and Related Security from such Transferring Affiliate under the Transferring Affiliate Letter, such purchase being deemed to have been made on the date such Receivable was created, (ii) by the last Business Day of the month following the month in which such purchase was so made, the Seller 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 (iii) the Seller 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

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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, and (iv) such Transferring Affiliate was at the time of the origination of such Receivable and remains a wholly-owned Subsidiary of FMCH.

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

(y)Ownership. FME KGaA owns, directly or indirectly through a wholly-owned Subsidiary, all of the issued and outstanding common stock of (and such stock comprises more than 80.00% of the Voting Stock of) FMCH, free and clear of any Adverse Claim except to the extent such stock is 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 Originating Entity is owned directly or indirectly by FMCH, free and clear of any Adverse Claim except to the extent such stock is subject to put/call agreements, forward agreements or other similar arrangements among FME KGaA and its subsidiaries; provided, however, that FME KGaA may own directly or indirectly stock that is not Voting Stock in subsidiaries of FMCH. All of the issued and outstanding stock of the Transferor is owned by NMC, free and clear of any Adverse Claim.

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

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

(bb)Anti-Corruption Laws, Anti-Terrorism Laws and Sanctions. Policies and procedures have been implemented and maintained by or on behalf of each of the Seller Parties that are designed to achieve compliance by the Seller Parties and their respective Subsidiaries, directors, officers, employees and agents with Anti-Corruption Laws, Anti-Terrorism Laws and applicable Sanctions, giving due regard to the nature of such Person’s business and activities, and each of the Seller Parties and their respective Subsidiaries and, to the knowledge of each of the Seller Parties, their respective officers, employees, directors and agents acting in any capacity in connection with or directly benefitting from the securitization facility established hereby, are in compliance, in each case in all material respects, with (i) Anti-Corruption Laws, except for the matters described on Exhibit H, (ii) Anti-Terrorism Laws and (iii) applicable Sanctions. None of (a) the Seller Parties or any of their respective Subsidiaries or, to the knowledge of the Seller Parties, as applicable, any of their respective directors, officers,

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employees, or agents that will act in any capacity in connection with or directly benefit from the securitization facility established hereby, is a Sanctioned Person, and (b) the Seller Parties nor any of their respective Subsidiaries is organized or resident in a Sanctioned Country. No Transfer, issuance of any Letter of Credit or use of proceeds of any of the foregoing by any Seller Party has in any manner given rise to a violation of Anti-Corruption Laws, Anti-Terrorism Laws or applicable Sanctions.

(cc)

Joint Ventures. Each Joint Venture in existence on the date hereof

(i)has been omitted from the list of Transferring Affiliates in each Investor Report following its creation or conversion into a Joint Venture, as applicable, and (ii) has been identified on the most recent Cash Collections Report as a “Joint Venture” (or in the case of any newly identified Joint Venture, in a Cash Collections Report to be delivered to Investors within 45 days after the date the proceeds of any asset owned by such Joint Venture shall first be remitted to a Special Account).

(dd)

Beneficial Ownership. As of the Effective Date, the Transferor is

an entity that is (1) not a bank, (2) organized under the laws of State of Delaware, (3) an indirect, wholly-owned subsidiary of FME KGaA, whose common stock is listed on the New York Stock Exchange or the American Stock Exchange or has been designated as a NASDAQ National Market Security listed on the NASDAQ stock exchange and (4) excluded on the basis (1)-(3) of this clause (dd) from the definition of Legal Entity Customer as defined in the Beneficial Ownership Rule.

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

SECTION 3.2. Reaffirmation of Representations and Warranties by the Transferor. On each day that a Transfer is made hereunder, the Transferor, by accepting the proceeds of such Transfer, whether delivered to the Transferor pursuant to Section 2.2(a), Section 2.5 or Section 2.19 hereof, shall be deemed to have certified that all representations and warranties described in Section 3.1 hereof are correct on and as of such day as though made on and as of such day. Each Incremental Transfer shall be subject to the further condition precedent that, prior to the date of such Incremental Transfer the Collection Agent shall have delivered to the Agent and each Administrative Agent, in form and substance satisfactory to the Agent and each Administrative Agent, a completed Investor Report dated within ten (10) days prior to the date of such Incremental Transfer, together with a listing by Primary Payor of all Receivables, and such additional information as may be reasonably requested by any Administrative Agent or the Agent, and the Transferor shall be deemed to have represented and warranted that such condition precedent has been satisfied.

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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.

(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 respective properties, in or before any court, arbitrator or other body, which may, individually or in the aggregate, have a Material Adverse Effect.

(f)Nature of Receivables. Each Receivable treated by the Transferor or the Collection Agent as an Eligible Receivable (including, without limitation, in any Investor Report, Cash Collections Report or other report delivered pursuant to Section 2.11 hereof or in the calculation of the Net Receivables Balance) is in fact an Eligible Receivable. Without limiting the generality of the foregoing, no Receivable that is or has been treated as an Eligible

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Receivable for any purpose hereunder was originated by any Transferring Affiliate following the date it ceased to be a wholly-owned Subsidiary of FMCH.

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

(h)Credit and Collection Policy. Since September 30, 2012, there have been no material changes in the Credit and Collection Policy other than as permitted hereunder. Since such date, no material adverse change has occurred in the overall rate of collection of the Receivables.

(i)Collections and Servicing. Since September 30, 2012, there has been no material adverse change in the ability of the Collection Agent to service and collect the Receivables.

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

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

(l)Anti -Corruption Laws, Anti-Terrorism Laws and Sanctions. Policies and procedures have been implemented and maintained by or on behalf of each of the Originating Entities that are designed to achieve compliance by the Originating Entities and their respective Subsidiaries, directors, officers, employees and agents with Anti-Corruption Laws, Anti-Terrorism Laws and applicable Sanctions, giving due regard to the nature of such Person’s business and activities, and each of the Originating Entities and their respective Subsidiaries and, to the knowledge of each of the Originating Entities, their respective officers, employees, directors and agents acting in any capacity in connection with or directly benefitting from the securitization facility established hereby, are in compliance, in each case in all material respects, with (i) Anti-Corruption Laws, except for the matters described on Exhibit H, (ii) Anti-Terrorism Laws and (iii) applicable Sanctions. None of (a) the Originating Entities or any of their respective Subsidiaries or, to the knowledge of the Originating Entities, as applicable, any of their respective directors, officers, employees, or agents that will act in any capacity in connection with or directly benefit from the securitization facility established hereby, is a Sanctioned Person, and (b) the Originating Entities nor any of their respective Subsidiaries is

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organized or resident in a Sanctioned Country. No Transfer or use of proceeds thereof by any Originating Entity has in any manner given rise to a violation of Anti-Corruption Laws, Anti-Terrorism Laws or applicable Sanctions.

ARTICLE IV

CONDITIONS PRECEDENT

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

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

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

(c)The Certificates of Incorporation of the Transferor certified by the Secretary of the Transferor dated the Effective Date.

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

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

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

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

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

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

(j)An opinion of Karen A. Gledhill, Senior Vice President/General Counsel for FMCH, NMC and each Transferring Affiliate, acting as counsel to FMCH, the Transferor, the Collection Agent and the Originating Entities.

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

(l)An opinion of counsel relating to certain matters under German law in form and substance reasonably acceptable to the Agent.

(m)

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

(n)

An executed copy of the Transferring Affiliate Letter, the

Receivables Purchase Agreement and the Parent Agreement, in the respective forms attached hereto as Exhibits O and Exhibit P, as applicable, duly executed and delivered by each of the parties thereto (and each of the parties hereto, by its execution of this Agreement, hereby consents to such execution and delivery).

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

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

(q)An Investor Report dated as of the end of the last day of June 2021.

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(r)A Cash Collections Report dated as of the end of the last day of June 2021.

(s)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.

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

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

(b)the representations and warranties set forth in Section 3.1 shall be true and correct both immediately before and immediately after giving effect to any such Incremental Transfer (NI) and the payment to the Transferor of the Transfer Price related thereto;

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

(d)in the case of any Incremental Transfer (NI) to be funded by the Bank Investors in any Related Group, either (x) such Bank Investors shall have previously accepted the assignment by a related Conduit Investor of all of its interest in the Affected Assets or (y) such Conduit Investor shall have had an opportunity to direct that such assignment occur on or prior to giving effect to such Incremental Transfer.

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

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

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

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Aggregate Face Amount of all Letters of Credit then outstanding would not exceed the Facility L/C Sublimit;

(b)the representations and warranties set forth in Section 3.1 shall be true and correct both immediately before and immediately after giving effect to any such Incremental Transfer (L/C) and the issuance of the Letter of Credit related thereto or such L/C Modification, as applicable;

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

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

(e)on issuance or after giving effect to such L/C Modification, as applicable, the expiry date of such Letter of Credit (including any scheduled or permitted extension thereof as contemplated in such Letter of Credit) shall not be later than (1) the earlier to occur of (i) the date that is three years after the issuance thereof and (ii) the date that is one year after the Commitment Termination Date or (2) in the case of any ESCO Letter of Credit, the date that is three years after the Commitment Termination Date provided that the L/C Fee shall increase to 1.75% per annum for the period from the Commitment Termination Date to the expiry date of such ESCO Letter of Credit.

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

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

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ARTICLE V

COVENANTS

SECTION 5.1.   Affirmative Covenants of Transferor. At all times from the date hereof to the later to occur of (i) the Termination Date and (ii) the Final Collection Date, unless each Administrative Agent shall otherwise consent in writing:

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

(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, in each case subject to normal recurring year-end audit adjustments. Each such financial statement shall be prepared in accordance with GAAP consistently applied except as otherwise stated therein.

(iii)Compliance Certification. Together with the financial statements required hereunder, a compliance certificate signed by the Transferor’s chief executive officer or its senior financial officer stating that (x) the attached financial statements have been prepared in accordance with GAAP and accurately reflect the financial condition of the Transferor and (y) to the best of such Person’s knowledge, no Termination Event or Potential Termination Event exists, or if any Termination Event or Potential Termination Event exists, stating the nature and status thereof. In addition, each Investor Report delivered hereunder shall include a certification by the Transferor’s chief executive officer or senior financial officer stating that such Person has reviewed such Investor Report and the information upon which such Investor Report was based and, based on such review, such Person has concluded that (1) the calculation of the Net Receivables

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Balance by the Collection Agent in such Investor Report is accurate and complete in all material respects, (2) the calculation of the aggregate unpaid amount of Reimbursement Obligations by the Collection Agent in such Investor Report is accurate and complete in all material respects and (3) such Investor Report is otherwise accurate and complete in all material respects.

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

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

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

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

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

(ix)Investigations and Proceedings. Unless prohibited by either (i) the terms of the subpoena, request for information or other document referred to below, (ii) law (including, without limitation, rules and regulations) or (iii) restrictions imposed by the U.S. federal or state government or any agency or instrumentality thereof and subject to the execution by the applicable Administrative Agent of a confidentiality agreement in

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

(xi)Converted Transferring Affiliates. Promptly following, and in any event not later than the date the first Investor Report shall be due following the date any Transferring Affiliate ceases to be a wholly-owned Subsidiary of the Seller, an Investor Report omitting the name of such Transferring Affiliate and reflecting the removal of any Receivables originated by such Transferring Affiliate from the Net Receivables Balance from the date that such Transferring Affiliated ceased to be a wholly-owned Subsidiary of FMCH.

(xii)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

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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 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

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Concentration Account has been established at such Special Account Bank, the amount of all Collections on deposit on such banking day in such Intermediate Concentration Account, (iv) establish and maintain a Concentration Account with the Concentration Account Bank, (v) instruct, and cause each Originating Entity to instruct (or to cause the applicable Designated Account Agent to instruct), each Special Account Bank to transfer to the Concentration Account or an Intermediate Concentration Account prior to the close of business on such banking day all Collections on deposit during such banking day in the Special Accounts at such Special Account Bank, (vi) instruct each Intermediate Concentration Account Bank to transfer to the Concentration Account prior to the close of business on such banking day all Collections on deposit during such banking day in the Intermediate Concentration Accounts at such Intermediate Concentration Account Banks and (vii) instruct the Concentration Account Bank to give to each Special Account Bank on each banking day notice to transfer to the Concentration Account, all Collections on deposit during such banking day in the Special Accounts at such Special Account Bank (or, if an Intermediate Concentration Account has been established at such Special Account Bank, in the Intermediate Concentration Account at such Special Account Bank); provided, however, that if the Collections on deposit in any Special Account during such banking day shall be less than $20,000.00 (the “Minimum Amount”), the Special Account Bank shall transfer such Collections to the Concentration Account or the applicable Intermediate Concentration Account on the next succeeding banking day on which Collections in such Special Account first exceed the Minimum Amount.

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

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

(k)Separate Business. The Transferor shall at all times (a) to the extent the Transferor’s office is located in the offices of any Parent Group Member, pay fair market rent for its executive office space located in the offices of such Parent Group Member, (b) have at all times at least one member of its board of directors which is not and has never been an employee, officer or director of any Parent Group Member or of any major creditor of any Parent Group Member and is a person who is and has experience with asset securitization, (c)

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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 as 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 2013 Closing Date. The Transferor shall maintain its Certificate of Incorporation and By-Laws in conformity with this Agreement, such that (1) it does not amend, restate, supplement or otherwise modify its Certificate of Incorporation or By-Laws in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, Section 7.1(r) of this Agreement; and (2) its Certificate of Incorporation, at all times that this Agreement is in effect, provides for not less than ten (10) days’ prior written notice to each Administrative Agent of the removal, replacement or appointment of any director that is to serve as an Independent Director for purposes of this Agreement and the condition precedent to giving effect to any such replacement or appointment that each Administrative Agent shall have determined in its reasonable judgment acting in good faith that the designated Person satisfies the criteria set forth in the definition herein of “Independent Director”. The Transferor shall, in addition to the foregoing, take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinions issued by Arent Fox LLP, as counsel for the Transferor, in connection with the Effective Date and relating to “non-consolidation” issues and “true sale” issues, and in the certificates accompanying such opinions, remain true and correct in all material respects at all times.

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

(m)Payment to the Originating Entities. With respect to any Receivable purchased by the Transferor from the Seller, such sale shall be effected under, and in strict compliance with the terms of, the Receivables Purchase Agreement, including, without limitation, the terms relating to the amount and timing of payments to be made to the Seller by

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the Transferor in respect of the purchase price for such Receivable. With respect to any Receivable purchased by the Seller from any Transferring Affiliate, the Transferor shall cause such sale to be effected under, and in strict compliance with the terms of, the Transferring Affiliate Letter, including, without limitation, the terms relating to the amount and timing of payments to be made to each Transferring Affiliate in respect of the purchase price for such Receivable.

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

(o)Anti-Corruption Laws, Anti-Terrorism Laws and Sanctions. Policies and procedures will be maintained and enforced by or on behalf of the Transferor that are designed in good faith and in a commercially reasonable manner to promote and achieve compliance, in the reasonable judgment of the Transferor, by the Transferor and its directors, officers, employees and agents with Anti-Corruption Laws, Anti-Terrorism Laws and applicable Sanctions, in each case giving due regard to the nature of the Transferor’s business and activities.

(p)Joint Ventures. The Agent may, at any time in respect of any Joint Venture, take such action as it deems reasonably necessary or advisable to preserve and protect the interests of the Investors hereunder, including, without limitation, (i) with respect to any Joint Venture, requesting supplemental information in respect of historical and anticipated cash flows in the Special Accounts that will continue to be used by such Joint Venture and (ii) with respect to any Joint Venture that is not a Designated Joint Venture, the implementation of Standing JV Sweep Procedures, and the Transferor shall forthwith honor any such request upon its receipt of written notice thereof from the Agent.

(q)Standing JV Sweep Procedures. Within 30 days of being identified as a Designated Joint Venture, the Transferor shall implement Standing JV Sweep Procedures in respect of any Special Accounts to which collections on assets of any Designated Joint Venture may be remitted.

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(r)Beneficial Ownership Rule. Promptly following any change that would result in a change to the status of the Transferor as an excluded “Legal Entity Customer” under the Beneficial Ownership Rule, the Transferor shall execute and deliver to the Administrative Agent a Certification of Beneficial Owner(s) complying with the Beneficial Ownership Rule, in form and substance reasonably acceptable to the Agent and each Administrative Agent.

SECTION 5.2.   Negative Covenants of the Transferor. At all times from the date hereof to the later to occur of (i) the Termination Date and (ii) the Final Collection Date, unless each Administrative Agent shall otherwise consent in writing:

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

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

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

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

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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; provided, however, that the Transferor shall not be required to comply with this covenant in connection with any merger, consolidation, transfer, lease or other disposition of assets by an Originating Entity (other than the Seller) if the aggregate Outstanding Balance of all Receivables originated by all other Originating Entities with respect to which the Transferor is in compliance with this covenant is at least $1,050,000,000.

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

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

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(iii)add or terminate any Person as a Designated Account Agent from those listed in the Account Schedule, or make any change in its instructions to such Designated Account Agent regarding the handling of the Collections in the applicable Special Account; provided that the Transferor may permit the (A) addition of any Person that satisfies the requirements set forth herein of a “Designated Account Agent” as a Designated Account Agent for purposes of this Agreement at any time following delivery to each Administrative Agent of written notice of such addition and an Account Agent Agreement duly executed by such Person and an updated Account Schedule reflecting such addition, and (B) termination of any Designated Account Agent at any time following delivery to each Administrative Agent of written notice of such termination, an updated Account Schedule reflecting such termination and evidence satisfactory to each Administrative Agent that either an Originating Entity or a new Designated Account 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; provided that amounts paid by an Obligor to a Joint Venture may be remitted to a Special Account that shall have been identified in a Cash Collections Report or, in the case of a newly identified Joint Venture, will be identified in the

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Cash Collections Report delivered within 45 days of the first remittance of proceeds of the assets of such Joint Venture into a Special Account.

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

(h)Amendment to Receivables Purchase Agreement, Etc. The Transferor will not, and will not permit any Originating Entity to, (i) amend, modify, or supplement the Receivables Purchase Agreement, the Transferring Affiliate Letter or any 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 effect on the Agent, any Administrative Agent or any Investor or which is inconsistent with the terms of this Agreement.

(i)Other Debt. Except as provided for herein, the Transferor will not create, incur, assume or suffer to exist any indebtedness whether current or funded, or any other liability other than (i) indebtedness of the Transferor representing fees, expenses and indemnities arising hereunder or under the Receivables Purchase Agreement for the purchase price of the Receivables under the Receivables Purchase Agreement, and (ii) other indebtedness incurred in the ordinary course of its business in an amount not to exceed $12,500 at any time outstanding.

(j)ERISA Matters. The Transferor will not, and will not permit any Originating Entity to, (i) engage or permit any of its respective ERISA Affiliates to engage in any prohibited transaction (as defined in Section 4975 of the Code and Section 406 of ERISA) for which an exemption is not available or has not previously been obtained from the U.S. Department of Labor; (ii) permit to exist any accumulated funding deficiency (as defined in Section 302(a) of ERISA and Section 412(a) of the Code) or funding deficiency with respect to any Benefit Plan other than a Multiemployer Plan; (iii) fail to make any payments to any Multiemployer Plan that the Transferor, such Originating Entity or any ERISA Affiliate thereof is required to make under the agreement relating to such Multiemployer Plan or any law pertaining thereto; (iv) terminate any Benefit Plan so as to result in any liability; or (v) permit to

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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.

(k)Anti-Corruption Laws, Anti- Terrorism Laws and Sanctions. The Transferor will not request any Transfer or issuance of any Letter of Credit, and shall procure that its directors, officers, employees and agents shall not use, the proceeds of any Transfer or issuance of any Letter of Credit (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws or Anti-Terrorism Laws, (B) for the purpose of funding or financing any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, in each case to the extent doing so would violate any Sanctions, or (C) in any other manner that would result in liability to any party hereto under any applicable Sanctions or the violation of any Anti-Corruption Laws, Anti-Terrorism Laws or Sanctions by any such Person.

(l)Evading and Avoiding. The Transferor will not engage in, or permit any of its Affiliates or any director, officer, employee, agent or other Person acting on behalf of the Transferor in any capacity in connection with or directly benefitting from this Agreement to engage in, or to conspire to engage in, any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Corruption Laws, Anti-Terrorism Laws and Sanctions.

SECTION 5.3.   Affirmative Covenants of the Collection Agent. At all times from the date hereof to the later to occur of (i) the Termination Date and (ii) the Final Collection Date, unless each Administrative Agent shall otherwise consent in writing.

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

(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,

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

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

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

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

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

(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.

(i)Anti-Corruption Laws, Anti-Terrorism Laws and Sanctions. Policies and procedures will be maintained and enforced by or on behalf of each of the

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Collection Agent and each Originating Entity that are designed in good faith and in a commercially reasonable manner to promote and achieve compliance, in the reasonable judgment of the Collection Agent and each Originating Entity, by the Collection Agent and each Originating Entity and each of their respective Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws, Anti-Terrorism Laws and applicable Sanctions, in each case giving due regard to the nature of such Person’s business and activities.

(j)[Reserved]

(k)Evading and Avoiding. The Collection Agent will not engage in, or

permit any of its Subsidiaries, Affiliates or any director, officer, employee, agent or other Person acting on behalf of the Collection Agent or any of its Subsidiaries in any capacity in connection with or directly benefitting from the Agreement to engage in, or to conspire to engage in, any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Corruption Laws, Anti-Terrorism Laws and Sanctions.

SECTION 5.4.   Negative Covenants of the Collection Agent. At all times from the date hereof to the later to occur of (i) the Termination Date and (ii) the Final Collection Date, unless each Administrative Agent shall otherwise consent in writing:

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

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

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

(d)Deposits to Accounts. The Collection Agent will not deposit or otherwise credit, or cause or permit to be so deposited or credited, to any Special Account or Concentration Account cash or cash proceeds other than Collections of Receivables except to the extent permitted in accordance with Section 5.2(f).

(e)Anti-Corruption Laws, Anti-Terrorism Laws and Sanctions. The Collection Agent and each Originating Entity shall not use, and each of the Collection Agent and each Originating Entity shall procure that its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Transfer or the issuance of any Letter of Credit (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws or Anti-Terrorism Laws, (B) for the purpose of funding or financing any

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activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, in each case to the extent doing so would violate any Sanctions, or (C) in any other manner that would result in liability to any party hereto under any applicable Sanctions or the violation of any Anti-Corruption Laws, Anti-Terrorism Laws or Sanctions by any such Person.

SECTION 5.5.   Risk Retention Requirements. At all times from the date hereof to the later to occur of (i) the Termination Date and (ii) the Final Collection Date, NMC covenants and represents as follows:

(a)as “originator” within the meaning of the EU/UK Securitization Rules, it holds, and will retain on an ongoing basis, a material net economic interest of not less than 5% in the transaction contemplated by the Transaction Documents in the form of a first loss tranche in accordance with Article 6(3)(d) of each Securitization Regulation (the “Retained Interest”);

(b)the Retained Interest (i) is and will be represented by (A) NMC’s 100% ownership interest in the Transferor and its “Capital Contribution” and/or “Revolving Loan” (as each such term is defined in the Receivables Purchase Agreement) made to the Transferor, and (B) the Transferor’s entitlement to receive Collections on Receivables in excess of the Transferred Interest, and (ii) is and will be, after taking into account any fees that may in practice be used to reduce the effective material net economic interest, in an amount equivalent to at least 5% of the nominal value of all the Receivables;

(c)NMC will not, and will not permit any Affiliate to, (A) hedge or otherwise mitigate the credit risk arising from or associated with the Retained Interest, or (B) sell, transfer or otherwise surrender all or part of the rights, benefits or obligations arising from or associated with the Retained Interest, except (in each case) to the extent permitted by the EU/UK Securitization Rules;

(d)NMC will confirm to Investors that it continues to comply with its obligations under sub-clauses (a) to (c) above (i) by providing a statement to such effect in (or together with) each Investor Report, and (ii) in the event of (A) a material change in the structure of the transaction contemplated by the Transaction Documents that could have a material impact on the performance of the Transferred Interest or (B) the risk characteristics of the Transferred Interest or the Receivables;

(e)NMC shall provide prompt written notice to the Investors of any breach of its obligations, or representations, as the case may be, under this Section 5.5;

(f)NMC shall provide all information that any Investor may reasonably require in connection with such Investor’s compliance with its obligations under the EU/UK Securitization Rules, subject always to any requirement of law; and

(g)each Originating Entity (i) enters into Contracts and creates Receivables on the basis of sound and well-defined underwriting criteria; (ii) has clearly established processes for approving, amending and renewing Contracts and Receivables; and (iii) has effective systems in place to apply those criteria and processes to ensure that Contracts are

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entered into, and Receivables are created, based on a thorough assessment of each Obligor’s creditworthiness.

ARTICLE VI

ADMINISTRATION AND COLLECTION

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

SECTION 6.2.   Duties of Collection Agent.

(a)The Collection Agent shall take or cause to be taken all such action as may be necessary or advisable to collect each Receivable from time to time, all in accordance with applicable laws, rules and regulations (including, without limitation, all CHAMPUS/VA Regulations, Medicaid Regulations and Medicare Regulations), with reasonable care and diligence, and in accordance with the Credit and Collection Policy. Each of the Transferor, the Agent, the Administrative Agents and the Investors hereby appoints as its agent the Collection Agent, from time to time designated pursuant to Section 6.1 hereof, to enforce its respective rights and interests in and under the Affected Assets. To the extent permitted by applicable law, the Transferor hereby grants to any Collection Agent appointed hereunder an irrevocable power of attorney to take any and all steps in the Transferor’s and/or any Originating Entity’s name and on behalf of the Transferor necessary or desirable, in the reasonable determination of the Collection Agent, to collect all amounts due under any and all Receivables, including, without

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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, with the prior written consent of each Administrative Agent, may revise the Servicing Fee Percentage to such other percentage as may be approved in writing by each Administrative Agent, provided, however, that, unless otherwise agreed in writing by each Administrative Agent, at any time after the Percentage Factor equals or exceeds 100%, any compensation to the Collection Agent in excess of the Servicing Fee initially provided for herein shall be an obligation of the Transferor and shall not be payable, in whole or in part, from the Collections allocated to or for the benefit of any of the Investors hereunder. The Collection Agent, if other than NMC, shall as soon as practicable upon demand, deliver to the Transferor all Records in its possession which evidence or relate to indebtedness of an Obligor which is not a Receivable.

(c)On or before October 31 of each calendar year, the Collection Agent shall:

(i)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

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(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; and

(ii)provide to the Agent a report setting forth the average monthly recovery rate in respect of Receivables that might otherwise have been considered defaulted or delinquent Receivables for each of the immediately preceding twelve (12) months.

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

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

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

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

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

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due or to become due to the Transferor or any Originating Entity in respect of such Receivables or Related Security directly to either the Intermediate Concentration Account or the Concentration Account or to the Agent or its designee, except for any such payment in respect of such Receivables or Related Security or any assignment thereof that is established by, or made pursuant to, the order of a court of competent jurisdiction.

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

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

(b)any representation, warranty, certification or statement made by the Collection Agent or the Transferor, the Seller or any Affiliate of the Transferor or the Seller (in the event that the Transferor, the Seller or such Affiliate is then acting as the Collection Agent) in this Agreement, the Receivables Purchase Agreement, the Transferring Affiliate Letter or in any of the other Transaction Documents or in any certificate or report delivered by it 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 €250,000,000 (or its equivalent in any currency) was created or 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 €250,000,000 (or its equivalent in any currency) was created or is governed, regardless of whether such event is an “event of default” or “default” under any such agreement; or any Indebtedness of the Collection Agent or any of its Subsidiaries, FME KGaA or FMCH greater than €250,000,000 (or its equivalent in any currency) 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

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

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

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

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

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

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

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

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

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

(d)(i) failure of the Transferor to pay when due any amounts due under any agreement relating to Indebtedness to which it is a party; or the default by the Transferor in the performance of any term, provision or condition contained in any agreement relating to Indebtedness to which it is a party regardless of whether such event is an “event of default” or “default” under any such agreement; or any Indebtedness owing by the Transferor shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof; or (ii) failure of the Seller, FMCH, 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 €250,000,000 (or its equivalent in any currency) was created or 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 €250,000,000 (or its equivalent in any currency) 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 €250,000,000 (or its equivalent in any currency) 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

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

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

(g)

a Collection Agent Default shall have occurred; or

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

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

(j)there shall have occurred any material adverse change in the operations of any of FMCH, NMC, the Transferor or the Seller since December 31, 2017 or any other Material Adverse Effect shall have occurred; or

(k)(i) the Percentage Factor exceeds the Maximum Percentage Factor unless the Transferor reduces the Net Investment or increases the balance of the Affected Assets on the next Business Day so as to reduce the Percentage Factor to less than or equal to the Maximum Percentage Factor or (ii) the sum of the portion of the Net Investment held by the Investors in any Related Group and the Letter of Credit Obligations owing to the Bank Investor in such Related Group shall exceed the applicable Related Group Limit at any time; or

(l)the average Dilution Ratio for any three (3) consecutive calendar months exceeds 8.00%; or

(m)the average Loss-to-Liquidation Ratio for any three (3) consecutive calendar months exceeds 7.00%; or

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(n)the average Default Ratio for any three (3) consecutive calendar months exceeds 4.50%; or

(o)a default or breach shall occur under the Parent Agreement (including, without limitation, a default or breach with respect to any financial covenant or other undertaking set forth therein); or the Parent Agreement shall for any reason terminate; or any material provision thereof shall cease to be valid and binding on any party thereto or any party thereto shall so state in writing; or

(p)(i) the Seller shall cease to own, free and clear of any Adverse Claim all of the outstanding shares of capital stock of the Transferor on a fully diluted basis; or (ii) FMCH shall cease to own, directly or indirectly, free and clear of any Adverse Claim, (other than 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 put/call agreements, forward agreements or other similar arrangements among FME KGaA and its subsidiaries), all of the Voting Stock of FMCH other than the preferred stock of FMCH outstanding as of the date hereof (which preferred stock outstanding as of the date hereof shall not represent more than 20.00% of the total Voting Stock of FMCH); or (iv) a Change of Control shall occur; or

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

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

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

(b)At all times after the occurrence and during the continuation of a Termination Event or the declaration or automatic occurrence of the Termination Date pursuant to Section 7.2(a), the Base Rate plus 2.50% shall be the Tranche Rate applicable to the Net

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Investment for all existing and future Tranches and shall be the rate at which RO Interest accrues.

ARTICLE VIII

INDEMNIFICATION; EXPENSES; RELATED MATTERS

SECTION 8.1.   Indemnities by the Transferor. Without limiting any other rights which the Agent, the Administrative Agents or the Investors may have hereunder or under applicable law, the Transferor hereby agrees to indemnify the Investors, the Agent, the Administrative Agents, the Collateral Agents, the Liquidity Providers and the Credit Support Providers and their respective successors and permitted assigns and their respective officers, directors and employees (collectively, “Indemnified Parties”) from and against any and all damages, losses, claims, liabilities, costs and expenses, including, without limitation, reasonable attorneys’ fees (which such attorneys may be employees of a Liquidity Provider, a Credit Support Provider, the Agent, an Administrative Agent or a Collateral Agent, as applicable) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them in any action or proceeding between the Transferor or any Parent Group Member (including any Parent Group Member, in its capacity as the Collection Agent) and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise arising out of or as a result of this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Agent or any Investor of the Transferred Interest or any of the other transactions contemplated hereby or thereby, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of an Indemnified Party or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting the generality of the foregoing, the Transferor shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from:

(i)any representation or warranty made by any Parent Group Member (including any Parent Group Member, in its capacity as the Collection Agent) or any officers of any Parent Group Member (including any Parent Group Member, in its capacity as the Collection Agent) under or in connection with this Agreement, the Receivable Purchase Agreement, the Parent Agreement, the Transferring Affiliate Letter, any of the other Transaction Documents, any Investor Report, any Cash Collections 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;

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(iii)the failure (x) to vest and maintain vested in the Agent, on behalf of the Investors, a valid and perfected first priority undivided 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 without

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regard to whether any such commingling is authorized or permitted hereunder or under any of the other Transaction Documents;

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

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

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

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

(xviii)any action taken by the Transferor, any Originating Entity or the Collection Agent (if a Parent Group Member or designee thereof) in the enforcement or collection of any Receivable; provided, however, that if any Conduit Investor enters into agreements for the purchase of interests in receivables from one or more Other Transferors, such Conduit Investor shall allocate such Indemnified Amounts which are in connection with a Credit Support Agreement or the credit support furnished by the Credit Support Provider to the Transferor and each Other Transferor; and provided, further, that 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;

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

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

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

(xxii)any civil penalty or fine assessed by OFAC or any other governmental authority administering any Anti-Terrorism Law, Anti-Corruption Law or Sanctions, and all reasonable costs and expenses (including reasonable documented legal fees and disbursements) incurred in connection with defense thereof by, any Indemnified Party in connection with the Transaction Documents as a result of any action of the Transferor or any of its respective Affiliates.

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

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

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(ii)shall impose, modify or deem applicable any reserve, assessment, fee, insurance charge, special deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve System) against assets of, deposits with or for the account of, or credit extended by, any Indemnified Party or shall impose on any Indemnified Party or on the United States market for certificates of deposit or the London interbank market any other condition affecting this Agreement, the other Transaction Documents, the ownership, maintenance or financing of the Transferred Interest, the Receivables or payments of amounts due hereunder or its obligation to advance funds hereunder under a Liquidity Provider Agreement or the credit support provided by a Credit Support Provider or otherwise in respect of this Agreement, the other Transaction Documents, the ownership, maintenance or financing of the Transferred Interest or the Receivables; or

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

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

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

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and (z) all requests, rules, guidelines and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, shall in each case be deemed to be a “Bank Regulatory Guideline”, regardless of the date enacted, adopted, issued or implemented.

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

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

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

(d)If any Indemnified Party in a Related Group makes a claim for payment pursuant to this Section 8.2, then the Transferor may, at its option, remove such Related Group and terminate the Commitments of the Investors in such Related Group by (A) paying to

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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) and (B) if any Bank Investor in such Related Group shall have issued any Letters of Credit hereunder that then remain outstanding (“Designated Letters of Credit”), providing to such Bank Investor a letter of credit in form and substance satisfactory to such Bank Investor issued by a commercial bank having a credit rating not less than the credit rating of such Bank Investor, which letter of credit shall be in a stated amount equal to the aggregate stated amount of the Designated Letters of Credit issued by such Bank Investor and shall permit drawings thereunder by such Bank Investor at the time of, and in the amount of, each drawing under any Designated Letter of Credit. Any such removal and termination shall be made upon not less than five (5) Business Days’ notice delivered by the Transferor to the applicable Administrative Agent. The Payoff Amount for any Related Group shall be calculated by the Administrative Agent and notified to the Transferor, which calculation shall be conclusive and binding absent manifest error. Upon such removal and termination, (x) the members of such Related Group shall cease to be parties to this Agreement and the Commitments of all Bank Investors in such Related Group shall be reduced to zero and (y) the Facility Limit will be reduced by an amount equal to the Commitments (determined immediately prior to such termination) of the Bank Investors, in such Related Group.

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

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

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

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

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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.

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

(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

(b)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”

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

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

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

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

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

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Agreement and the other Transaction Documents, (b) arising in connection with any Investor’s, any Administrative Agent’s, the Agent’s or any Collateral Agent’s enforcement or preservation of rights (including, without limitation, the perfection and protection of the Transferred Interest under this Agreement), or (c) arising in connection with any audit, dispute, disagreement, litigation or preparation for litigation involving this Agreement or any of the other Transaction Documents (all of such amounts, collectively, “Transaction Costs”).

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

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

ARTICLE IX

THE AGENT; BANK COMMITMENT; THE ADMINISTRATIVE AGENTS

SECTION 9.1.   Authorization and Action. (a) Each Investor hereby appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are delegated to the Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality, of the foregoing, each Investor hereby appoints the Agent as its agent to execute and deliver all further instruments and documents, and take all further action that the Agent may deem necessary or appropriate or that any Investor may reasonably request in order to perfect, protect or more fully evidence the interests transferred or to be transferred from time to time by the Transferor hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Receivables now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. The Majority Investors may direct the Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions

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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 a successor Collection Agent, (E) release any property from the lien provided by this Agreement (other than as expressly contemplated herein) or (F) extend or permit the extension of the Commitment Termination Date without the consent of each Bank Investor. The Agent shall not, without the prior written consent of each Administrative Agent, agree to amend, modify or waive any provision of this Agreement, the Transferring Affiliate Letter, the Receivables Purchase Agreement or the Parent Agreement. The Agent shall not agree to any amendment of this Agreement which increases the dollar amount of any Investor’s Commitment without the prior consent of such Investor. In addition, the Agent shall not agree to any amendment of this Agreement not specifically described in the two preceding sentences without the consent of the Majority Investors (which consent shall not be unreasonably withheld or delayed). In the event the Agent requests any Investor’s consent pursuant to the foregoing provisions and the Agent does not receive a consent (either positive or negative) from such Investor within 10 Business Days of such Investor’s receipt of such request, then such Investor (and its percentage interest hereunder) shall be disregarded in determining whether the Agent shall have obtained sufficient consent hereunder.

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

SECTION 9.2.   Agent’s Reliance, Etc. Neither the Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them as Agent under or in connection with this Agreement or any of the other Transaction Documents, except for its or their own gross negligence or willful misconduct. Without limiting the foregoing, the Agent: (i) may consult with legal counsel (including counsel for any Parent Group Member), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in

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

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

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

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Related Group having a Commitment equal to the aggregate Commitment of TD Bank and Reliant Trust and (ii) Reliant Trust shall be deemed not to be a Bank Investor.

SECTION 9.5.   Successor Agent. The Agent may resign at any time by giving written notice thereof to each Investor and the Transferor and may be removed at any time with cause by the Majority Investors. Upon any such resignation or removal, the Majority Investors shall appoint a successor Agent. Each Investor agrees that it shall not unreasonably withhold or delay its approval of the appointment of a successor Agent. If no such successor Agent shall have been so appointed, and shall have accepted such appointment, within 30 days after the retiring Agent’s giving of notice of resignation or the Majority Investors’ removal of the retiring Agent, then the retiring Agent may, on behalf of the Investors, appoint a successor Agent which successor Agent shall be either (i) a commercial bank having a combined capital and surplus of at least $50,000,000 or (ii) an Affiliate of such a bank. Upon the acceptance of any 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; Erroneous Payments.

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

(b)Erroneous Payments. (i) Each Investor hereby agrees that (x) if the Agent notifies such Investor or its Administrative Agent that the Agent has determined in its sole discretion that any funds received by such Investor (directly or through its Administrative Agent) from the Agent (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise, individually and collectively, a “Payment”) were erroneously transmitted to such Investor (or its Administrative Agent for the Related Group) (whether or not known to such Investor), and demands the return of such Payment (or a portion thereof), such Investor shall promptly, but in no event later than one Business Day thereafter, return to the Agent (or to its Administrative Agent for transfer to the Agent) the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Investor to the date such amount is repaid to the Agent at the greater of the NYFRB Rate and a rate determined by the Agent in accordance with banking industry rules on

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interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law, neither such Investor nor its Administrative Agent shall assert, and each hereby waives, as to the Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Agent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice of the Agent to any Investor or to its Administrative Agent under this Section 9.6(b) shall be conclusive, absent manifest error.

(ii)Each Investor hereby further agrees that if it receives (directly or through its Administrative Agent) a Payment from the Agent (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Agent with respect to such Payment (a “Payment Notice ”) or (y) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Investor agrees that, in each such case, or if it otherwise becomes aware that a Payment (or portion thereof) may have been sent in error, such Investor shall promptly notify its Administrative Agent and the Agent of such occurrence and, upon demand from its Administrative Agent or the Agent, it shall promptly, but in no event later than one Business Day thereafter, return to the Agent (or to its Administrative Agent for transfer to the Agent) the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Investor to the date such amount is repaid to the Agent at the greater of the NYFRB Rate and a rate determined by the Agent in accordance with banking industry rules on interbank compensation from time to time in effect.

(iii)Each of the Transferor and the Collection Agent hereby agrees that (x)in the event an erroneous Payment (or portion thereof) is not recovered from any Investor that has received such Payment (or portion thereof) for any reason, the Agent shall be subrogated to all the rights of such Investor with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Aggregate Unpaids owed by the Transferor or the Collection Agent.

(iv)Each party’s obligations under this Section 9.6(b) shall survive the resignation or replacement of the Agent, any Administrative Agent or any transfer of rights or obligations by, or the replacement of, any Investor, the termination of the Commitments or the repayment, satisfaction or discharge of all Aggregate Unpaids under any Transaction Document.

SECTION 9.7.    Bank Commitment; Assignment to Bank Investors.

(a)Assignments by Conduit Investors. A Conduit Investor may, at any time, assign all or any portion of its interests in the Net Investment, the Receivables, and Collections, Related Security and Proceeds with respect thereto and its rights and obligations hereunder and under the other Transaction Documents to any Bank Investor, Administrative Agent, Liquidity Provider or Credit Support Provider or any of their respective Affiliates without the consent of any other party. In addition to and not in limitation of any other provision hereof

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which permits assignments by a Conduit Investor, any Conduit Investor may, from time to time, in one transaction or a series of transactions, assign all or a portion of its interests in the Net Investment, the Receivables, and Collections, Related Security and Proceeds with respect thereto and its rights and obligations hereunder and under the other Transaction Documents to another special purpose company (an “SPC Assignee”) which (i) is administered by such Conduit Investor’s Administrative Agent or by any Affiliate of such Administrative Agent and (ii) has activities generally similar to such Conduit Investor. The Administrative Agent for the assigning Conduit Investor shall notify the Transferor and the Agent of such assignment promptly following the effective date thereof. Upon and to the extent of such assignment to an SPC Assignee, (i) the SPC Assignee shall be the owner of the assigned portion of the Net Investment, (ii) the relevant Administrative Agent will act as Administrative Agent for the SPC Assignee as well as for the assigning Conduit Investor, with all corresponding rights and powers, express or implied, granted herein to such Administrative Agent, (iii) the SPC Assignee shall be a Conduit Investor hereunder and its credit and liquidity support providers and other related parties shall have the benefit of all the rights and protections provided to the assigning Conduit Investor and its credit and liquidity support providers and other related parties, respectively, herein and in the other Transaction Documents (including, without limitation, any limitation on recourse against the assigning Conduit Investor or related parties, any agreement not to file or join in the filing of a petition to commence an insolvency proceeding against the assigning Conduit Investor, and the right to assign to another SPC Assignee as provided in this paragraph), (iv) the SPC Assignee shall assume all obligations, if any, of the assigning Conduit Investor under and in connection with this Agreement, and the assigning Conduit Investor shall be released from such obligations, in each case to the extent of such assignment, and the obligations of the assigning Conduit Investor (if any) and the SPC Assignee shall be several and not joint, (v) all distributions in respect of Net Investment or Discount shall be made to the assigning Conduit Investor and the SPC Assignee on a pro rata basis according to their respective interests (or in the case of Discount, the accrued amounts thereof), (vi) the rate used to calculate the Discount with respect to the portions of the Net Investment owned by the SPC Assignee and funded with commercial paper notes issued by the SPC Assignee from time to time shall be determined in the manner set forth in the definition of the “CP Rate” on the basis of the discount or interest rates applicable to commercial paper issued by the SPC Assignee (rather than the assigning Conduit Investor), (vii) in the event that the relevant Related Group, by reason of such assignment, shall contain more than one Conduit Investor, then each reference in this Agreement to “Conduit Investor” shall mean and refer to, in the case of such Related Group, each such Conduit Investor individually or all of such Conduit Investors collectively, as the context may require, (viii) any reference in this Agreement or the other Transaction Documents to the assigning Conduit Investor shall mean and be a reference to such assigning Conduit Investor and/or the relevant SPC Assignee, as the context may require, (ix) the defined terms and other terms and provisions of this Agreement and the other Transaction Documents shall be interpreted in accordance with the foregoing, and (x) if requested by the relevant Administrative Agent, the parties will execute and deliver such further agreements and documents and take such other actions as the relevant Administrative Agent may reasonably request to evidence and give effect to the foregoing.

(b)Assignments by Bank Investors. No Bank Investor may assign all or a portion of its interests in the Net Investment, any Letter of Credit, the Receivables, and Collections, Related Security and Proceeds with respect thereto and its rights and obligations

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hereunder to any Person unless approved in writing by the Administrative Agent for its Related Group, on behalf of the related Conduit Investor (it being understood and agreed that no consent from the Transferor or any other Person shall be required in connection with any assignment by a Bank Investor). Without limiting the generality of the foregoing, it is understood for the avoidance of doubt that an Administrative Agent may condition any approval on its receipt of written confirmation from each applicable Rating Agency that such assignment will not result in the reduction or withdrawal of the then current rating of the Commercial Paper issued by the related Conduit Investor. In the case of an assignment by a Conduit Investor to the Bank Investors or by a Bank Investor to another Person, the assignor shall deliver to the assignee(s) an Assignment and Assumption Agreement in substantially the form of Exhibit G attached hereto, duly executed, assigning to the assignee a pro rata interest in the Net Investment, the Receivables, and Collections, Related Security and Proceeds with respect thereto and the assignor’s rights and obligations hereunder and the assignor shall promptly execute and deliver all further instruments and documents, and take all further action, that the assignee may reasonably request, in order to protect, or more fully evidence the assignee’s right, title and interest in and to such interest and to enable the Agent, on behalf of such assignee, to exercise or enforce any rights hereunder and under the other Transaction Documents to which such assignor is or, immediately prior to such assignment, was a party. Upon any such assignment, (i) the assignee shall have all of the rights and obligations of the assignor hereunder and under the other Transaction Documents to which such assignor is or, immediately prior to such assignment, was a party with respect to such interest for all purposes, it being understood that the Bank Investors, as assignees, shall (x) be obligated to fund Incremental Transfers under Section 2.2(a) and to issue Letters of Credit under 2.18, in each case in accordance with the terms thereof, notwithstanding that related Conduit Investor was not so obligated and (y) not have the right to elect the commencement of the amortization of the Net Investment pursuant to the definition of “Reinvestment Termination Date”, notwithstanding that the related Conduit Investor had such right) and (ii) the assignor shall relinquish its rights with respect to such interest for all purposes of this Agreement and under the other Transaction Documents to which such assignor is or, immediately prior to such assignment, was a party. No such assignment shall be effective unless a fully executed copy of the related Assignment and Assumption Agreement shall be delivered to the Agent, the Administrative Agent for the applicable Related Group and the Transferor. All costs and expenses of the Agent, the applicable Administrative Agent and the assignor and assignee incurred in connection with any assignment hereunder shall be borne by the Transferor and not by the assignor or any such assignee. Unless otherwise agreed by the Administrative Agent for the applicable Related Group, no Bank Investor shall assign any portion of its Commitment hereunder without also simultaneously assigning an equal portion of its interest in the applicable Liquidity Provider Agreement.

(c)Effects of Assignment. By executing and delivering an Assignment and Assumption Agreement, the assignor and assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Assumption Agreement, the assignor makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement, the other Transaction Documents or any other instrument or document furnished pursuant hereto or thereto or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, the other Transaction

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Documents or any such other instrument or document; (ii) the assignor makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Transferor, any Parent Group Member or the Collection Agent or the performance or observance by the Transferor, any Parent Group Member or the Collection Agent of any of their respective obligations under this Agreement, the Receivables Purchase Agreement, the Transferring Affiliate Letter, the Parent Agreement, the other Transaction Documents or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, the Receivables Purchase Agreement, the Transferring Affiliate Letter, the Parent Agreement, and such other instruments, documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Assumption Agreement and to purchase such interest; (iv) such assignee will, independently and without reliance upon the Agent, any Administrative Agent, or any of their respective Affiliates, or the assignor and based on such agreements, documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement and the other Transaction Documents; (v) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under this Agreement, the other Transaction Documents and any other instrument or document furnished pursuant hereto or thereto as are delegated to the Agent by the terms hereof or thereof, together with such powers as are reasonably incidental thereto and to enforce its respective rights and interests in and under this Agreement, the other Transaction Documents, the Receivables, the Contracts and the Related Security; (vi) such assignee appoints and authorizes the applicable Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement, the other Transaction Documents and any other instrument or document furnished pursuant hereto or thereto as are delegated to the Administrative Agent by the terms hereof or thereof, together with such powers as are reasonably incidental thereto and to enforce its respective rights and interests in and under this Agreement, the other Transaction Documents, the Receivables, the Contracts and the Related Security, (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Transaction Documents are required to be performed by it as the assignee of the assignor; and (viii) such assignee agrees that it will not institute against any Conduit Investor any proceeding of the type referred to in Section 10.9 prior to the date which is one year and one day after the payment in full of all Commercial Paper issued by such Conduit Investor or its Related CP Issuer.

(d)Transferor’s Obligation to Pay Certain Amounts. The Transferor shall pay to the Administrative Agent for a Conduit Investor, in connection with any assignment by such Conduit Investor to its related Liquidity Providers, an aggregate amount equal to all Discount to accrue through the end of each outstanding Tranche Period plus all other Aggregate Unpaids (other than the Net Investment and any unpaid amount in respect of any Reimbursement Obligations) owing to such Conduit Investor.

(e)[Reserved].

(f)[Reserved].

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(g)Downgrade of Bank Investor. If (at any time prior to any assignment by a Conduit Investor to the Bank Investors in its Related Group as contemplated pursuant to this Section 9.7) the short term debt rating of any Bank Investor in such Related Group shall be “A-2” or “P-2” from Standard & Poor’s or Moody’s, respectively, with negative credit implications, such Bank Investor, upon request of the applicable Administrative Agent, shall, within 30 days of such request, assign its rights and obligations hereunder to another financial institution (which institution’s short term debt shall be rated at least “A-2” and “P-2” from Standard & Poor’s and Moody’s, respectively, and which shall not be so rated with negative credit implications). If the short term debt rating of a Bank Investor in a Related Group shall be “A -3” or “P-3”, or lower, from Standard & Poor’s or Moody’s, respectively (or such rating shall have been withdrawn by Standard & Poor’s or Moody’s), such Bank Investor, upon request of the applicable Administrative Agent, shall, within five (5) Business Days of such request, assign its rights and obligations hereunder to another financial institution (which institution’s short term debt shall be rated at least “A-2” and “P-2” from Standard & Poor’s and Moody’s, respectively, and which shall not be so rated with negative credit implications). In either such case, if any such Bank Investor in a Related Group shall not have assigned its rights and obligations under this Agreement within the applicable time period described above, the related Conduit Investor shall have the right to require such Bank Investor to accept the assignment of such Bank Investor’s Pro Rata Share of the Net Investment; such assignment shall occur in accordance with the applicable provisions of this Section 9.7. Such Bank Investor shall be obligated to pay to such Conduit Investor, in connection with such assignment, in addition to the Pro Rata Share of the Net Investment, an amount equal to the Interest Component of the outstanding Commercial Paper issued to fund the portion of the Net Investment being assigned to such Bank Investor, as reasonably determined by the applicable Administrative Agent. Notwithstanding anything contained herein to the contrary, upon any such assignment to a downgraded Bank Investor as contemplated pursuant to the immediately preceding sentence, the aggregate available amount of the applicable Related Group Limit, solely as it relates to new Incremental Transfers to such Conduit Investor, shall be reduced by the amount of unused Commitment of such downgraded Bank Investor; it being understood and agreed, that nothing in this sentence or the two preceding sentences shall affect or diminish in any way any such downgraded Bank Investor’s Commitment to the Transferor or such downgraded Bank Investor’s other obligations and liabilities hereunder and under the other Transaction Documents.

SECTION 9.8.   Appointment of Administrative Agents. Each Investor in a Related Group hereby appoints and authorizes the Administrative Agent for its Related Group to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are delegated to such Administrative Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality, of the foregoing, each Investor in a Related Group hereby appoints the Administrative Agent for its Related Group as its agent to execute and deliver all further instruments and documents, and take all further action that such Administrative Agent may deem necessary or appropriate or that any Investor may reasonably request to enable any of them to exercise or enforce any of their respective rights hereunder. Bank Investors representing at least 66 and 2/3% of the aggregate Commitments of all Bank Investors in a Related Group (the “Group Majority Investors” for such Related Group) may direct the Administrative Agent for such Related Group to take any such incidental action hereunder. With respect to other actions

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which are incidental to the actions specifically delegated to an Administrative Agent hereunder, such Administrative Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Group Majority Investors; provided, however, no Administrative Agent shall be required to take any action hereunder if the taking of such action, in the reasonable determination of such Administrative Agent, shall be in violation of any applicable law, rule or regulation or contrary to any provision of this Agreement or shall expose such Administrative Agent to liability hereunder or otherwise. Upon the occurrence and during the continuance of any Termination Event or Potential Termination Event, the Administrative Agent for a Related Group shall take no action hereunder (other than ministerial actions or such actions as are specifically provided for herein) without the prior consent of the Group Majority Investors (which consent shall not be unreasonably withheld or delayed). The Administrative Agent for a Related Group shall not, without the prior written consent of all Bank Investors in such Related Group, agree to (i) amend, modify or waive any provision of this Agreement in any way which would (A) reduce or impair Collections or the amount or payment of Net Investment, Reimbursement Obligations, Discount or fees payable hereunder to the Bank Investors, in such Related Group or delay the scheduled dates for payment of such amounts, (B) increase the Servicing Fee (other than as permitted pursuant to Section 6.2(b)), (C) modify any provisions of this Agreement or the Receivables Purchase Agreement or the Parent Agreement relating to the timing of payments required to be made by the Transferor, any Originating Entity, FME KGaA or FMCH or the application of the proceeds of such payments, (D) permit the appointment of any Person (other than the Agent) as successor Collection Agent, (E) release any property from the lien provided by this Agreement (other than as expressly contemplated herein) or any party from its obligations under the Parent Agreement or (F) extend or permit the extension of the Commitment Termination Date without the consent of each Bank Investor, in such Related Group. The Administrative Agent for a Related Group shall not agree to any amendment of this Agreement which increases the dollar amount of the Commitment of a Bank Investor in such Related Group without the prior consent of such Bank Investor. In addition, no Administrative Agent shall agree to any amendment of this Agreement not specifically described in the two preceding sentences without the consent of the related Group Majority Investors (which consent shall not be unreasonably withheld or delayed). In the event an Administrative Agent requests any Investor’s consent pursuant to the foregoing provisions and such Administrative Agent does not receive a consent (either positive or negative) from such Investor within 10 Business Days of such Investor’s receipt of such request, then such Investor (and its percentage interest hereunder) shall be disregarded in determining whether such Administrative Agent shall have obtained sufficient consent hereunder.

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

SECTION 9.9.   Administrative Agent’s Reliance, 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,

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except for its or their own gross negligence or willful misconduct. Without limiting the foregoing, each Administrative Agent: (i) may consult with legal counsel (including counsel for any Parent Group Member), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (ii) makes no warranty or representation to any Investor and shall not be responsible to any Investor for any statements, warranties or representations made in or in connection with this Agreement; (iii) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or any of the other Transaction Documents on the part of any Parent Group Member or the Collection Agent or to inspect the property (including the books and records) of any Parent Group Member or the Collection Agent; (iv) shall not be responsible to any Investor for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any of the other Transaction Documents or any other instrument or document furnished pursuant hereto or thereto; and (v) shall incur no liability under or in respect of this Agreement or any of the other Transaction Documents by acting upon any notice (including notice by telephone), consent, certificate or other instrument or writing (which may be by telex) believed by it to be genuine and signed or sent by the proper party or parties.

SECTION 9.10.   Indemnification of the Administrative Agents. The Bank Investors, in each Related Group agree to indemnify the Administrative Agent for such Related Group (to the extent not reimbursed by the Transferor), ratably in accordance with their Pro Rata Shares, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against such Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by such Administrative Agent, any of the other Transaction Documents hereunder or thereunder (including, in the case of the Administrative Agent for Reliant Trust, for any amounts payable by such Administrative Agent by reason of the last sentence of Section 9.4), provided that the Bank Investors, in a Related Group shall not be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the applicable Administrative Agent’s gross negligence or willful misconduct. Without limitation of the foregoing, the Bank Investors, in each Related Group agree to reimburse the Administrative Agent for such Related Group, ratably in accordance with their Pro Rata Shares, promptly upon demand for any out-of-pocket expenses (including counsel fees) incurred by such Administrative Agent in connection with the administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement and the other Transaction Documents, to the extent that such expenses are incurred in the interests of or otherwise in respect of such Bank Investors, hereunder and/or thereunder and to the extent that such Administrative Agent is not reimbursed for such expenses by the Transferor.

SECTION 9.11.   Successor Administrative Agents. Any Administrative Agent may resign at any time by giving written notice thereof to the Agent, each Investor in its Related Group and the Transferor and may be removed at any time with cause by the applicable Group Majority Investors. Upon any such resignation or removal, the Group Majority Investors for such Related Group shall appoint a successor Administrative Agent. Each Investor agrees

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

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

ARTICLE X

MISCELLANEOUS

SECTION 10.1.   Term of Agreement. This Agreement shall terminate on the date following the Termination Date on which the Final Collection Date shall occur; provided, however, that (i) the rights and remedies of the Agent, the Investors and the Administrative Agents with respect to any representation and warranty made or deemed to be made by the Transferor pursuant to this Agreement, (ii) the indemnification and payment provisions of Article VIII, Section 9.4 and Section 9.10, and (iii) the agreement set forth in Section 10.9 hereof, shall be continuing and shall survive any termination of this Agreement.

SECTION 10.2.   Waivers; Amendments. No failure or delay on the part of the Agent, any Investor or any Administrative Agent in exercising any power, right or remedy

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under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or remedy preclude any other further exercise thereof or the exercise of any other power, right or remedy. The rights and remedies herein provided shall be cumulative and nonexclusive of any rights or remedies provided by law. Any provision of this Agreement may be amended or waived if, but only if, in the case of any amendment, such amendment is in writing and is signed by the Transferor, the Agent, each Administrative Agent and the Majority Investors and in the case of any waiver, such waiver is granted in writing by each Administrative Agent; provided that no Administrative Agent for a Conduit Investor shall consent to any such amendment or waiver unless each applicable Rating Agency shall have either (i) received prior notice of such amendment or waiver and, in the case of any material amendment or waiver, confirmed that such amendment or waiver will not result in the reduction or withdrawal of the then current rating of the Commercial Paper issued by such Conduit Investor or (ii) advised such Conduit Investor or its related Administrative Agent that amendments or waivers may be effected without the need for any further confirmation by such Rating Agency.

SECTION 10.3.   Notices. Except as provided below, all communications and notices provided for hereunder shall be in writing (including telecopy, facsimile or email or similar writing) and shall be given to the other party at its address, telecopy number, facsimile address or email address set forth below or at such other address, telecopy number, facsimile address or email address 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, facsimile or email when such telecopy is transmitted to the telecopy number, facsimile address or email address 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

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Payment Information:

Chase Manhattan Bank, N.A.

ABA 021-000-021

Account 323-0-76823

If to the Collection Agent:

National Medical Care, Inc.

920 Winter Street

Waltham, MA 02451

Telephone: (781) 699-2668

Telecopy: (781) 699-9756

Attn: Mark Fawcett

If to the Agent:

The Bank of Nova Scotia

40 King Street West

66th Floor

Toronto, ON

Canada M5H 1H1

Attention: Doug Noe

Telephone: (416) 945-4050

E-mail: doug.noe@scotiabank.com

with a copy to:

The Bank of Nova Scotia

250 Vesey Street

23rd Floor

New York, NY 10281

Attention: Darren Ward

Tel: (212) 225-5264

Fax: (212) 225-5274

Email: Darren.Ward@scotiabank.com

If to Liberty Street:

Liberty Street Funding LLC

c/o Global Securitization Services, LLC

68 South Service Road, Suite 120

Melville, New York 11747

Attention: Jill A. Russo

Telephone: (212) 295-2742

Telecopy: (212) 302-8767

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If to the Administrative Agent for Liberty Street:

The Bank of Nova Scotia

40 King Street West 66th Floor

Toronto, ON

Canada M5H 1H1

Attention: Doug Noe

Telephone: (416) 945-4050

E-mail: doug.noe@scotiabank.com

with a copy to:

The Bank of Nova Scotia

250 Vesey Street

23rd Floor

New York, NY 10281

Attention: Darren Ward

Tel: (212) 225-5264

Fax: (212) 225-5274

Email: Darren.Ward@scotiabank.com

If to Thunder Bay:

c/o Global Securitization Services, LLC

68 South Service Road, Suite 120

Melville, New York 11747

Attention: Kevin Burns

Tel: (631) 587-4700

Email: RBCUS@gssnyc.com

with a copy to:

c/o Royal Bank of Canada

Two Little Falls Center

2751 Centerville Road, Suite 212

Wilmington, DE 19808

Tel: (302) 892-5903

E-mail: conduit.management@rbccm.com

If to the Administrative Agent for Thunder Bay:

Royal Bank of Canada

200 Vesey Street

New York, NY 10281-8098

Attn: Securitization Finance

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Telephone: (212) 428-6537

Email: conduit.management@rbccm.com

If to Reliant Trust, GTA Funding or their Administrative Agent:

Reliant Trust

GTA Funding

c/o TD Securities Inc.

77 King Street West

TD North Tower, 25th Floor

Toronto, Ontario M5K 1A2

Attention: ASG Asset Securitization

Email: asgoperations@tdsecurities.com

If to Atlantic Securitization or its Administrative Agent:

Credit Agricole Corporate and Investment Bank, New York

1301 Avenue of the Americas

New York, New York 10019

Attention: David Nunez; Transaction Management

Telephone: (212) 261-3807

Email: David.Nunez@ca-cib.com; transaction.management@ca-cib.com;

If to PNC Bank, National Association:

PNC Bank, National Association

300 Fifth Avenue, 11th Floor

Pittsburgh, Pennsylvania 15222

Attention: Brian Stanley

Telephone: (412) 768-2001

Fax: (412) 762-9184

Email: brian.stanley@pnc.com

If to Victory Receivables Corporation or its Administrative Agent:

Victory Receivables Corporation

c/o Global Securitization Services, LLC

114 West 47th Street, Suite 2310

New York, New York 10036

Attention: Kevin J. Corrigan

Tel: (212) 295-2757

Fax: (212) 302-8767

Email: kcorrigan@gssnyc.com

With a copy to:

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MUFG Bank, Ltd. f/k/a The Bank of Tokyo-Mitsubishi UFJ, Ltd.,

New York Branch

1221 Avenue of the Americas

New York, NY 10020

Attention: Yumi Motai

Tel: (212) 782-5554

Email: ymotai@us.mufg.jp

and

MUFG Bank, Ltd. f/k/a The Bank of Tokyo-Mitsubishi UFJ, Ltd.,

New York Branch

1221 Avenue of the Americas

New York, NY 10020

Attention: Eric Williams

Telephone: (212) 405-6654

Fax: (212) 782-6448

Email: eric.williams@mufgsecurities.com

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

If to the Bank Investors, including, if applicable, in their capacities as L/C Issuers, at their respective addresses set forth on Schedule I or in the Assignment and Assumption Agreement pursuant to which it became a party hereto.

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

(a)THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH OF THE TRANSFEROR AND THE COLLECTION AGENT HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT 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.

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(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 1301 Avenue of the Americas, Floor 42, 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; Electronic Signatures. 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. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same instrument. The words “execution,” signed,” “signature,” and words of like import in this Agreement or in any other certificate, agreement, exhibit or document related to this Agreement or the other Transaction Documents shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act , any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code, and any other applicable law. Any provisions of this Agreement which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

SECTION 10.6.   Successors and Assigns. This Agreement shall be binding on the parties hereto and their respective successors and assigns; provided, however, that neither

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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.

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

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

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

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

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(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, equity investors or financial advisors (other than any commercial bank) and any nationally recognized rating agency (including in compliance with Rule 17g-5 under the Securities Exchange Act of 1934 or to any other rating agency in compliance with any such similar rule or regulation in any relevant jurisdiction) provided such auditors, attorneys, employees financial advisors or rating agencies are informed of the highly confidential nature of such information or (iii) following notice thereof to each Administrative Agent, as otherwise required by other applicable law or order of a court of competent jurisdiction.

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

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SECTION 10.9.   No Bankruptcy Petition Against Conduit Investors. Each of the Transferor and the Collection Agent hereby covenants and agrees that, prior to the date which is one year and one day after the payment in full of all outstanding Commercial Paper or other indebtedness of any Conduit Investor or its Related CP Issuer, it will not, and the Transferor will cause each Parent Group Member to not, institute against, or encourage, assist or join any other Person in instituting against, such Conduit Investor or its Related CP Issuer any bankruptcy, reorganization, arrangement insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or any state of the United States or under the laws of Canada or any province or territory thereof or any other proceedings related to an Event of Bankruptcy. Notwithstanding any provision contained in this Agreement to the contrary, no Conduit Investor shall, nor shall any Conduit Investor be obligated to, pay any amount pursuant to this Agreement unless (i) the Conduit Investor has received funds which may be used to make such payment in accordance with such Conduit Investor's commercial paper program documents, which funds are not required to repay its or its Related CP Issuer’s Commercial Paper when due; and (ii) after giving effect to such payment, either (x) there is sufficient liquidity available (determined in accordance with such program documents) to pay the Face Amount of all its Commercial Paper, (y) the Conduit Investor is not rendered insolvent or (z) its and its Related CP Issuer’s Commercial Paper has been repaid in full. Any amount which the Conduit Investor does not pay pursuant to the operation of the preceding sentence shall not constitute a claim (as defined in Section 101 of the United States Bankruptcy Code) against or a corporate obligation of the Conduit Investor for any insufficiency. For purposes of the foregoing, the term "Conduit Investor" shall include Reliant Trust in its capacity as a Bank Investor. The provisions of this Section shall survive the termination of this Agreement.

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

SECTION 10.11.   Characterization of the Transactions Contemplated by the Agreement. It is the intention of the parties that the transactions contemplated hereby constitute the sale of the Transferred Interest, conveying good title thereto free and clear of any Adverse Claims to the Agent, on behalf of the Investors, and that the Transferred Interest not be part of

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the Transferor’s estate in the event of an insolvency. If, notwithstanding the intention of the parties expressed in this Section 10.11, any sale or contribution by the Transferor to the Agent, on behalf of the Investors, of the Transferred Interest hereunder shall be characterized as a secured loan and not as a sale or such sale shall for any reason be ineffective or unenforceable (any of the foregoing being a “Recharacterization”), then this Agreement shall constitute a security agreement under applicable law. In order to further protect the interests of the Agent and the Investors, the Transferor hereby grants to the Agent, on behalf of the Investors, a first priority perfected and continuing security interest in all of the Transferor’s right, title and interest in, to and under the Receivables, together with Related Security, Collections and Proceeds with respect thereto, and together with all of the Transferor’s rights under the Receivables Purchase Agreement, the Transferring Affiliate Letter and all other Transaction Documents with respect to the Receivables and with respect to any obligations thereunder of any Originating Entity with respect to the Receivables. The Transferor hereby assigns to the Agent, on behalf of the Investors, all of its rights and remedies under the Receivables Purchase Agreement and the Transferring Affiliate Letter (and all instruments, documents and agreements executed in connection therewith) with respect to the Receivables and with respect to any obligations thereunder of any Originating Entity with respect to the Receivables. In the case of any Recharacterization, the Transferor and the Agent, on behalf of the Investors, represents and warrants that each remittance of Collections by the Transferor to the Agent hereunder will have been (i) in payment of a debt incurred by the Transferor in the ordinary course of business or financial affairs of the Transferor and the Agent and (ii) made in the ordinary course of business or financial affairs of the Transferor and the Agent.

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

SECTION 10.13.   Acknowledgement and Consent to EU Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in this Agreement or in any other agreement, arrangement or understanding among any of the parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under this Agreement or any Transaction Document to the extent such liability is unsecured, may be subject to the write - down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

(a)the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and

(b)

the effects of any Bail-in Action on any such liability, including, if applicable:

(i)

a reduction in full or in part or cancellation of any such liability;

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(ii)a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Transaction Document; or

(iii)the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.

SECTION 10.14.   PATRIOT Act Notice. Each Administrative Agent hereby notifies the Transferor that pursuant to the requirements of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “PATRIOT Act”), it is required to obtain, verify and record information that identifies the Transferor, which information includes the name, address, tax identification number and other information that will allow the Administrative Agent to identify the Transferor in accordance with the PATRIOT Act. This notice is given in accordance with the requirements of the PATRIOT Act.

Promptly following any request therefor, the Transferor shall deliver to each Administrative Agent all documentation and other information required by bank regulatory authorities requested by such Administrative Agent for purposes of compliance with applicable “know your customer” requirements under the PATRIOT Act, the Beneficial Ownership Rule or other applicable anti-money laundering laws, rules and regulations.

SECTION 10.15.   Purchase of Interests of the CACIB Group. (a) Upon the satisfaction of the conditions set forth in paragraphs (i) through (v) below, Credit Agricole, as Administrative Agent for the CACIB Group, may provide written notice (such notice, a “CACIB Notice”) to the Transferor, with a copy to the Agent and each other Administrative Agent, advising the addressees of the CACIB Notice that the CACIB Group is exercising its rights under this Section 10.15. If Credit Agricole has provided the CACIB Notice, the Transferor will be required to purchase the CACIB Group’s interest in the Transferred Interest (to the extent not transferred by the CACIB Group pursuant to subsection (b)) on a Business Day that is specified in the CACIB Notice, which must be not less than forty-five (45) days after the delivery of the CACIB Notice (the “CACIB Repurchase Date”). The applicable conditions are:

(i)Atlantic Securitization and its Related CP Issuer must have determined reasonably and in good faith that the funding of its share of the Net Investment through the issuance of Commercial Paper is not possible.

(ii)Atlantic Securitization and its Related CP Issuer have been unable to access the commercial paper markets for a period of eight (8) consecutive calendar months to fund the CACIB Group’s share of the Net Investment.

141


(iii)The Bank Investor in the CACIB Group has funded the CACIB Group’s entire share of the Net Investment for a period of eight (8) consecutive calendar months.

(iv)The last day of such eight-month period falls more than two (2) years after the date of the most recent amendment or restatement of this Agreement that has included an extension of the Commitment Termination Date.

(v)Atlantic Securitization and its Related CP Issuer have been unable to access the commercial paper markets on any date that falls after the end of such eight-month period but before the date on which Credit Agricole provides the CACIB Notice.

(b)Promptly after delivering the CACIB Notice, Credit Agricole, as Administrative Agent for the CACIB Group, will commence using its commercially reasonable best efforts to sell its entire interest in the Transferred Interest and assign its other rights, obligations and duties under this Agreement, in each case to one or more of the other Related Groups or to one or more other financial institutions that are reasonably acceptable to the Agent, or any combination of such potential purchasers, all in accordance with Section 9.7. However, the CACIB Group will not be required to sell any portion of its interest in the Transferred Interest for any consideration not payable in immediate funds or for less than the purchase price that the Transferor would be required to pay under subsection (c). To the extent reasonably practicable, Credit Agricole must keep the Transferor fully apprised on a current basis of the status of its efforts to sell its interest in the Transferred Interest and assign its other rights, obligations and duties under this Agreement, so that the Transferor can make informed decisions about how to make arrangements to satisfy its obligations under subsection (c).

(c)Not earlier than the tenth day and not later than the fifth day before the CACIB Repurchase Date, Credit Agricole must deliver written notice to the Transferor (a “CACIB Repurchase Notice”), with a copy to the Agent, specifying the portion of the CACIB Group’s interest in the Transferred Interest that the CACIB Group has not transferred to another party pursuant to subsection (b) (the “Unsold Transferred Interest”). The CACIB Repurchase Notice must also specify the CACIB Repurchase Price (as defined below):

(i)The “CACIB Repurchase Price” shall equal the result of (A)the sum of (1) the CACIB Group’s Net Investment in the Unsold Transferred Interest, and (2) all Discount accrued and to accrue thereon through the CACIB Repurchase Date, minus (B) an amount equal to (1) the arrangement fee paid to Credit Agricole, as Administrative Agent, on the date of the then most recent Investor Fee Letter, multiplied by (2) a fraction, the numerator of which is the number of days from and including the CACIB Repurchase Date to but excluding the specific date included in the definition of “Commitment Termination Date,” and the denominator of which is the number of days from an including the date of the most recent Investor Fee Letter.

142


(ii)Not later than the close of business (New York time) on the CACIB Repurchase Date, following any payments to be made by the Collection Agent pursuant to Sections 2.5 and 2.6 on such date:

(A)The CACIB Group shall transfer and assign the Unsold Transferred Interest to the Transferor. The transfer and assignment shall be without recourse and without representation or warranty except that the CACIB Group will be required to represent that it has not assigned (whether outright or as security) any portion of the Unsold Transferred Interest to any other party.

(B)The Transferor shall pay to Credit Agricole, as Administrative Agent, for the account of the members of the CACIB Group, the CACIB Repurchase Price (after deducting any amounts paid to Credit Agricole, as Administrative Agent, on behalf of the CACIB Group on such date), in immediate funds.

(C)The Transferor shall pledge to the Agent for the benefit of the L/C Issuer in the CACIB Group cash in an aggregate amount sufficient to fully Cash-Collateralize all Letters of Credit then outstanding that have been issued by such L/C Issuer.

(iii)The CACIB Repurchase Price set forth in the CACIB Repurchase Notice shall be calculated by Credit Agricole. If, and only if, such calculation has been approved by the Agent, such calculation shall be conclusive and binding absent manifest error. If the Agent does not approve the calculation of the CACIB Repurchase Price by Credit Agricole, then, if the Transferor chooses to contest Credit Agricole’s calculation of the CACIB Repurchase Price, Credit Agricole’s calculation of the CACIB Repurchase Price will not be presumed to be either accurate or inaccurate. If the Transferor disputes Credit Agricole’s calculation of the CACIB Repurchase Price, the Transferor shall nevertheless be obligated to close on the purchase of the Unsold Transferred Interest in accordance with paragraph (ii) above without prejudice to the Transferor’s right to recover from Credit Agricole any excess of the CACIB Repurchase Price as calculated by Credit Agricole over the CACIB Repurchase Price as finally determined (by whatever dispute resolution mechanism the Transferor and Credit Agricole ultimately employ).

(d)Upon the transfer and assignment of all of the CACIB Group’s interest in the Transferred Interest pursuant to this Section 10.15, the Commitment of the CACIB Group shall be reduced to zero and each of Credit Agricole, as Administrative Agent and as Bank Investor, and Atlantic Securitization, as Conduit Investor, shall cease to be a party to this Agreement and the Investor Fee Letter. If any portion of the CACIB Group’s Transferred Interest or other rights, obligations and duties under this Agreement have been transferred to one or more financial institutions not already a party to this Agreement as an Investor, each such

143


financial institution must become a party to this Agreement and the Investor Fee Letter as an Investor of the appropriate category.

(e)Notwithstanding anything to the contrary, no purchase by the Transferor on a CACIB Repurchase Date pursuant to this Section 10.15 shall occur and each CACIB Notice and CACIB Repurchase Notice shall be void if (i) any Potential Termination Event or Termination Event has occurred and is continuing on such date, (ii) a Termination Date has been set, (iii) after giving effect to such repurchase, the Percentage Factor would exceed the Maximum Percentage Factor or (iv) such repurchase would cause a Potential Termination Date or a Termination Date to occur. This clause (e) shall have no effect on any sale of the CACIB Group’s interest in the Transferred Interest or any assignment of its other rights, obligations and duties under this Agreement to any other Related Group or financial institution pursuant to Section 9.7.

(f)Each member of the CACIB Group acknowledges and agrees that it will not, and will cause each of its affiliates to not, institute against, or encourage, assist or join any other Person in instituting against, the Transferor any bankruptcy, reorganization, arrangement insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or any state of the United States or any other proceedings related to an Event of Bankruptcy solely for failure of the Transferor to repurchase the CACIB Group’s Transferred Interest pursuant to this Section 10.15.

144


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

    

NMC FUNDING CORPORATION,
as Transferor

By:

/s/ Mark Fawcett

Name:

Mark Fawcett

Title:

Treasurer

NATIONAL MEDICAL CARE, INC., as
Collection Agent

By:

/s/ Mark Fawcett

Name:

Mark Fawcett

Title:

SVP & Treasurer

Signature Page to Eighth Amended and Restated Transfer and Administration Agreement


    

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

By:

/s/ Douglas Noe

Name:

Douglas Noe

Title:

Managing Director

LIBERTY STREET FUNDING LLC,
as a Conduit Investor

By:

Name:

Title:

Signature Page to Eighth Amended and Restated Transfer and Administration Agreement


    

THE BANK OF NOVA SCOTIA, as Agent, as an

Administrative Agent and as a Bank Investor

By:

Name:

Title:

LIBERTY STREET FUNDING LLC,

as a Conduit Investor

By:

/s/ Kevin J. Corrigan

Name:

Kevin J. Corrigan

Title:

Vice President

Signature Page to Eighth Amended and Restated Transfer and Administration Agreement


/

    

CREDIT AGRICOLE CORPORATE AND

INVESTMENT BANK, NEW YORK, as an

Administrative Agent and as a Bank Investor

By:

/s/ Roger Klepper

Name:

Roger Klepper

Title:

MANAGING DIRECTOR

By:

/s/ Michael Guarda

Name:

Michael Guarda

Title:

MANAGING DIRECTOR

ATLANTIC ASSET SECURITIZATION LLC,

as a Conduit Investor

By: Credit Agricole Corporate and Investment

Bank, New York, its Attorney-in-Fact

By:

/s/ Roger Klepper

Name:

Roger Klepper

Title:

MANAGING DIRECTOR

By:

/s/ Michael Guarda

Name:

Michael Guarda

Title:

MANAGING DIRECTOR

Signature Page to Eighth Amended and Restated Transfer and Administration Agreement



    

THE TORONTO-DOMINION BANK, as an
Administrative Agent and as a Bank Investor

By:

/s/ Luna Mills

Name:

Luna Mills

Title:

Managing Director

RELIANT TRUST,
as a Bank Investor

By: Computershare Trust Company of Canada, in
its capacity as trustee of Reliant Trust, by its U.S.
Financial Services Agent, The Toronto-Dominion Bank

By:

/s/ Luna Mills

Name:

Luna Mills

Title:

Managing Director

GTA FUNDING LLC,
as a Conduit Investor

By:

/s/ Kevin J. Corrigan

Name:

Kevin J. Corrigan

Title:

Vice President

Signature Page to Eighth Amended and Restated Transfer and Administration Agreement


    

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

By:

/s/ Janine Marsini

Name:

Janine Marsini

Title:

Authorized Signatory

By:

/s/ Kimberly L. Wagner

Name:

Kimberly L. Wagner

Title:

Authorized Signatory

THUNDER BAY FUNDING, LLC,
as a Conduit Investor

By:

/s/ Kimberly L. Wagner

Name:

Kimberly L. Wagner

Title:

Authorized Signatory

Signature Page to Eighth Amended and Restated Transfer and Administration Agreement


    

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

By:

/s/ Eric Bruno

Name:

Eric Bruno

Title:

Senior Vice President

By:

/s/ Eric Bruno

Name:

Eric Bruno

Title:

Senior Vice President

Signature Page to Eighth Amended and Restated Transfer and Administration Agreement


    

MUFG BANK, LTD. f/k/a THE BANK OF
TOKYO-MITSUBISHI UFJ, LTD., NEW YORK
BRANCH, as an Administrative Agent

By:

/s/ Eric Williams

Name:

Eric Williams

Title:

Managing Director

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

By:

/s/ Eric Williams

Name:

Eric Williams

Title:

Managing Director

VICTORY RECEIVABLES CORPORATION,
as a Conduit Investor

By:

Name:

Title:

Signature Page to Eighth Amended and Restated Transfer and Administration Agreement


    

MUFG BANK, LTD. f/k/a THE BANK OF
TOKYO-MITSUBISHI UFJ, LTD., NEW YORK
BRANCH, as an Administrative Agent

By:

Name:

Title:

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

By:

Name:

Title:

VICTORY RECEIVABLES CORPORATION,
as a Conduit Investor

By:

/s/ Kevin J. Corrigan

Name:

Kevin J. Corrigan

Title:

Vice President

Signature Page to Eighth Amended and Restated Transfer and Administration Agreement


SCHEDULE I

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

NOTICE ADDRESSES FOR BANK INVESTORS

THE BANK OF NOVA SCOTIA

40 King Street West

66th Floor

Toronto, ON

Canada M5H 1H1

Attention: Doug Noe

Telephone: (416) 945-4050

E-mail: doug.noe@scotiabank.com

with a copy to:

THE BANK OF NOVA SCOTIA

250 Vesey Street

23rd Floor

New York, NY 10281

Attention: Darren Ward

Tel: (212) 225-5264

Fax: (212) 225-5274

E-mail: darren.ward@scotiabank.com

THE TORONTO-DOMINION BANK AND RELIANT TRUST

77 King Street West

TD North Tower, 25th Floor

Toronto, Ontario M5K 1A2

Attention: ASG Asset Securitization

Email: asgoperations@tdsecurities.com

ROYAL BANK OF CANADA

Royal Bank Plaza, North Tower

200 Bay Street

2nd Floor

Toronto Ontario M5J2W7

Attn: Securitization Finance

154


Telephone: (416)-842-3842

Email: conduit.management@rbccm.com

With a copy to:

ROYAL BANK OF CANADA

Two Little Falls Center

2751 Centerville Road, Suite 212

Wilmington, DE 19808

Telephone: (302)-892-5903

Email: conduit.management@rbccm.com

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, NEW YORK

1301 Avenue of the Americas

New York, New York 10019

Attention: David Nunez; Transaction Management

Telephone: (212) 261-3807

E-mail: David.Nunez@ca-cib.com; transaction.management@ca-cib.com;

PNC BANK, NATIONAL ASSOCIATION

300 Fifth Avenue, 11th Floor

Pittsburgh, Pennsylvania 15222

Attention: Brian Stanley

Telephone: (412) 768-2001

Fax: (412) 762-9184

Email: brian.stanley@pnc.com

MUFG BANK, LTD. f/k/a THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH

Investment Banking Division for the Americas

1221 Avenue of the Americas

New York, NY 10020

Attention: Eric Williams

Telephone: (212) 405-6654

Fax: (212) 782-6448

Email: eric.williams@mufgsecurities.com

With a copy to:

MUFG BANK, LTD. f/k/a THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH

155


1221 Avenue of the Americas

New York, NY 10020

Attention: Yumi Motai

Tel: (212) 782-5554

Email: ymotai@us.mufg.jp

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

156


SCHEDULE II

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

COMMITMENTS OF BANK INVESTORS

Bank Investor

    

Commitment

  

The Bank of Nova Scotia

$

175,000,000.00

Credit Agricole Corporate and Investment Bank,

$

145,000,000.00

New York

The Toronto-Dominion Bank and Reliant Trust

$

145,000,000.00

*

Royal Bank of Canada

$

145,000,000.00

PNC Bank, National Association

$

145,000,000.00

MUFG Bank, Ltd. f/k/a The Bank of Tokyo-Mitsubishi

$

145,000,000.00

UFJ, Ltd., New York Branch

TOTAL

$

900,000,000.00

RELATED GROUP LIMITS

   

Conduit Investor

    

Related Group Limit

  

Liberty Street Funding LLC

$

175,000,000.00

Atlantic Asset Securitization LLC

$

145,000,000.00

GTA Funding LLC

$

145,000,000.00

Thunder Bay Funding, LLC

$

145,000,000.00

PNC Bank, National Association

$

145,000,000.00

Victory Receivables Corporation

$

145,000,000.00

TOTAL

$

900,000,000.00


*Represents an aggregate Commitment of $145,000,000 for The Toronto-Dominion Bank and Reliant Trust.

157


SCHEDULE III

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS

In addition to the representations, warranties and covenants contained in the Agreement, the Receivables Purchase Agreement and the Transferring Affiliate Letter, each of the Transferor and the Collection Agent hereby represents, warrants, and covenants to the Agent, the Administrative Agents and the Investors as follows on the date hereof and on the date of each Transfer under the Agreement:

1.Perfection Representations:

(a)(i)Each purchase of Receivables under the Transferring Affiliate Letter constitutes a true sale of such Receivables from the applicable Transferring Affiliate to the Seller, conveying good title thereto free and clear of any Adverse Claims, and is enforceable as such against creditors of and purchasers from such Transferring Affiliate. If, notwithstanding the foregoing, any such purchase of Receivables is deemed not to be a true sale, then the Transferring Affiliate Letter creates a valid and continuing security interest (as defined in the applicable UCC) in such Receivables in favor of the Seller, which security interest is prior to all other Adverse Claims, and is enforceable as such as against creditors of and purchasers from the Transferring Affiliates. In addition, the Transferring Affiliate Letter creates a valid and continuing security interest (as defined in the applicable UCC) in the Receivables arising after the Termination Date in favor of the Seller, which security interest is prior to all other Adverse Claims, and is enforceable as such as against creditors of and purchasers from the Transferring Affiliates.

(ii)Each purchase of Receivables under the Receivables Purchase Agreement constitutes a true sale of such Receivables from the Seller to the Transferor, conveying good title thereto free and clear of any Adverse Claims, and is enforceable as such against creditors of and purchasers from the Seller. If, notwithstanding the foregoing, any such purchase of Receivables is deemed not to be a true sale, then the Receivables Purchase Agreement creates a valid and continuing security interest (as defined in the applicable UCC) in such Receivables in favor of the Transferor, which security interest is prior to all other Adverse Claims, and is enforceable as such as against creditors of and purchasers from the Seller. In addition, the Receivables Purchase Agreement creates a valid and continuing security interest (as defined in the applicable UCC) in the Receivables arising after the Termination Date in favor of the Transferor, which security interest is prior to all other Adverse Claims, and is enforceable as such as against creditors of and purchasers from Seller.

(iii)This Agreement creates a valid and continuing security interest (as defined in the applicable UCC) in the Receivables in favor of the Agent, which security interest is prior to all other Adverse Claims, and is enforceable as such as against creditors of and purchasers from Transferor.

158


(b)The Receivables constitute “accounts” within the meaning of the applicable UCC.

(c)Immediately prior to each purchase of Receivables under the Transferring Affiliate Letter, the applicable Transferring Affiliate had good and marketable title to such Receivables free and clear of any Adverse Claim, claim or encumbrance of any Person. Immediately prior to each purchase of Receivables under the Receivables Purchase Agreement, the Seller had good and marketable title to such Receivables free and clear of any Adverse Claim, claim or encumbrance of any Person. The Transferor owns and has good and marketable title to the Receivables free and clear of any Adverse Claim, claim or encumbrance of any Person.

(d)The Transferor, the Seller and the Transferring Affiliates have caused or will have caused, within ten days after the effective date of this Agreement, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the sale of the Receivables from the Transferring Affiliates to the Seller, and from the Seller to the Transferor, and the security interest in the Receivables granted to the Agent hereunder. None of the Transferor, the Seller or the Transferring Affiliates is aware of any judgment or tax filings against it.

(e)Other than the transfer of the Receivables from the Transferring Affiliates to the Seller under the Transferring Affiliate Letter, the transfer of the Receivables from the Seller to the Transferor under the Receivables Purchase Agreement, and the security interest granted to the Agent pursuant to this Agreement, neither the Transferor nor any Originating Entity has pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Receivables. Neither Transferor nor any Originating Entity has authorized the filing of, or is aware of any financing statements against Transferor or any Originating Entity that include a description of collateral covering the Receivables other than any financing statement relating to the security interest granted to the Agent hereunder or that has been terminated.

2.Survival of Perfection Representations. Notwithstanding any other provision of the Agreement or any other Transaction Document, the representations contained in this Schedule shall be continuing, and remain in full force and effect (notwithstanding any termination of the Commitments or any replacement of the Collection Agent or termination of Collection Agent’s rights to act as such) until such time as all Aggregate Unpaids have been finally and fully paid and performed.

3.No Waiver. The Administrative Agent for each Conduit Investor agrees that it: (i) shall not, without obtaining a confirmation of the then-current rating of the Commercial Paper relating to such Conduit Investor, waive any of the Perfection Representations; (ii) shall provide the Ratings Agencies with prompt written notice of any breach of the Perfection Representations, and (iii) shall not, without obtaining a confirmation of the then-current rating of the Commercial Paper of such Conduit Investor(as determined after any adjustment or withdrawal of the ratings following notice of such breach) waive a breach of any of the Perfection Representations.

4.Collection Agent to Maintain Perfection and Priority. The Collection Agent covenants that, in order to evidence the interests of the Transferor, the Agent, the Administrative

159


Agents and the Investors under this Agreement, the Collection Agent shall take such action, and execute and deliver such instruments (other than effecting a Filing (as defined below), unless such Filing is effected in accordance with this paragraph) as may be necessary or advisable (including, without limitation, such actions as are requested by any Administrative Agent) to maintain and perfect, as a first priority interest, the Agent’s security interest in the Receivables. The Collection Agent shall, from time to time and within the time limits established by law, prepare and present to the Agent for the Agent to authorize (based in reliance on the opinion of counsel hereinafter provided for) the Collection Agent to file, all financing statements, amendments, continuations, initial financing statements in lieu of a continuation statement, terminations, partial terminations, releases or partial releases, or any other filings necessary or advisable to continue, maintain and perfect the Agent’s security interest in the Receivables as a first-priority interest (each a “Filing”). The Collection Agent shall present each such Filing to the Agent together with (x) to the extent requested by any Administrative Agent, an opinion of counsel to the effect that such Filing is (i) consistent with grant of the security interest to the Agent pursuant to the Transaction Documents and (ii) satisfies the requirements for a Filing of such type under the Uniform Commercial Code in the applicable jurisdiction (or if the Uniform Commercial Code does not apply, the applicable statute governing the perfection of security interests), and (y) a form of authorization for the Agent’s signature. Upon receipt of such opinion of counsel and form of authorization, Agent shall promptly authorize in writing Collection Agent to, and Collection Agent shall, effect such Filing under the Uniform Commercial Code without the signature of Transferor or Agent where allowed by applicable law. Notwithstanding anything else in the Transaction Documents to the contrary, the Collection Agent shall not have any authority to effect a Filing without obtaining written authorization from the Agent in accordance with this paragraph.

160


SCHEDULE IV

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

[RESERVED]

1


EXHIBIT A

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

FORM OF NOTICE OF INCREMENTAL TRANSFER (NI)

The Bank of Nova Scotia, N.A., as Agent

under the Transfer and Administration Agreement referred to below

40 King Street West

66th Floor

Toronto, ON

Canada M5H 1H1

Attention: Doug Noe

Telephone: (416) 945-4050

E-mail: doug.noe@scotiabank.com

with a copy to:

The Bank of Nova Scotia

250 Vesey Street

23rd Floor

New York, NY 10281

Attention: Darren Ward

Tel: (212) 225-5264

Fax: (212) 225-5274

Email: Darren.Ward@scotiabank.com

_________ __, ____

Re: NMC Funding Corporation (the “Transferor”)

Reference is made to the Eighth Amended and Restated Transfer and Administration Agreement, dated as of August 11, 2021 (as the same may have been amended, restated, supplemented or otherwise modified prior to the date hereof, the “Transfer and Administration Agreement”), among the Transferor, National Medical Care, Inc., as collection agent, the entities from time to time parties thereto as “Conduit Investors”, “Bank Investors”, and “Administrative Agents” and Agent. Capitalized terms used herein without definition are used as defined in the Transfer and Administration Agreement.

The Transferor hereby gives you notice pursuant to Section 2.2 of the Transfer and Administration Agreement of its offer to convey, transfer and assign to you, for the benefit of the Investors, undivided percentage ownership interests in the Receivables and the other Affected

A-1


Assets related thereto for a Transfer Price of $____________1, on ________ _____ (the “Transfer Date”). The desired Tranche Period[s] and allocations of the Net Investment of this Incremental Transfer (NI) are indicated below:

Amount of Net Investment

Duration of
Initial Tranche Period

Type of Tranche Rate

[____________________]

[____________________]

[CP Rate] [Eurodollar Rate][Base Rate]

The Transferor hereby certifies that:

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

(b)the representations and warranties set forth in Section 3.1 of the Transfer and Administration Agreement will be true and correct both immediately before and immediately after giving effect to the proposed Incremental Transfer (NI) and the payment to the Transferor of the Transfer Price related thereto.

The Transferor hereby acknowledges and agrees that this Notice of Incremental Transfer (NI) is irrevocable and binding on it and agrees to indemnify each Investor against any loss or expense incurred by such 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 hereto) by it to complete this Incremental Transfer (NI) including, without limitation, any loss (including loss of anticipated profits) or expense incurred by any Investor, either directly or indirectly (including, in the case of a Conduit Investor, pursuant to the related Liquidity Provider Agreement) by reason of the liquidation or reemployment of funds acquired by any Investor or a related Liquidity Provider (including, without limitation, funds obtained by issuing commercial paper or promissory notes or obtaining deposits as loans from third parties) for any Investor to fund this Incremental Transfer (NI).

In accordance with Section 2.2(a) of the Transfer and Administration Agreement, the Agent shall advise each Administrative Agent of the allocation the Transfer Price in respect of the requested Incremental Transfer (NI) and the initial Tranche Period therefor.

[signature page follows]


1 To 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.

A-2


    

NMC FUNDING CORPORATION

By:

Name:

Title:

cc: [each Administrative Agent]

A-3


EXHIBIT B

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

FORM OF L/C ISSUANCE NOTICE

The Bank of Nova Scotia, N.A., as Agent

under the Transfer and Administration Agreement referred to below

40 King Street West

66th Floor

Toronto, ON

Canada M5H 1H1

Attention: Doug Noe

Telephone: (416) 945-4050

E-mail: doug.noe@scotiabank.com

with a copy to:

The Bank of Nova Scotia

250 Vesey Street

23rd Floor

New York, NY 10281

Attention: Darren Ward

Tel: (212) 225-5264

Fax: (212) 225-5274

Email: Darren.Ward@scotiabank.com

with a copy to:

[Name of L/C Issuer], as L/C Issuer

under the Transfer and Administration Agreement

_________ __, ____

Re: NMC Funding Corporation (the “Transferor”)

Reference is made to the Eighth Amended and Restated Transfer and Administration Agreement, dated as of August 11, 2021 (as the same may have been amended, restated, supplemented or otherwise modified prior to the date hereof, the “Transfer and Administration Agreement”), among the Transferor, National Medical Care, Inc., as collection agent, the entities from time to time parties thereto as “Conduit Investors”, “Bank Investors”, and “Administrative Agents” and The Bank of Nova Scotia, as agent. Capitalized terms used herein without definition are used as defined in the Transfer and Administration Agreement.

B-1


The Transferor hereby gives you notice pursuant to Section 2.18(a) of the Transfer and Administration Agreement, of its request that [__________] (the “L/C Issuer ”) issue a Letter of Credit, in the form attached hereto, for the benefit of [Name of Beneficiary], in the amount of $________, to be issued on ________, ____ with an expiration date of _________, ____. The Transferor has executed and delivered to the L/C Issuer such Letter of Credit Application in respect of the requested Letter of Credit as the L/C Issuer has requested.

The undersigned hereby certifies that:

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

(b)the representations and warranties set forth in Section 3.1 of the Transfer and Administration Agreement will be true and correct both immediately before and immediately after giving effect to the issuance of the requested Letter of Credit and the Incremental Transfer L/C related thereto; and

(c)the expiry date of the requested Letter of Credit (including any scheduled or permitted extension thereof as contemplated in such Letter of Credit) is not later than

(1) the earlier to occur of (i) the date that is three years after the issuance thereof and (ii) the date that is one year after the Commitment Termination Date or (2) in the case of any ESCO Letter of Credit, the date that is three years after the Commitment Termination Date provided that the L/C Fee shall increase to 1.75% per annum for the period from the Commitment Termination Date to the expiry date of such ESCO Letter of Credit.

    

NMC FUNDING CORPORATION

By:

Name:

Title:

B-2


EXHIBIT C

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

FORM OF L/C MODIFICATION NOTICE

The Bank of Nova Scotia, N.A., as Agent

under the Transfer and Administration Agreement referred to below

40 King Street West

66th Floor

Toronto, ON Canada M5H 1H1

Attention: Doug Noe

Telephone: (416) 945-4050

E-mail: doug.noe@scotiabank.com

with a copy to:

The Bank of Nova Scotia

250 Vesey Street

23rd Floor

New York, NY 10281

Attention: Darren Ward

Tel: (212) 225-5264

Fax: (212) 225-5274

Email: Darren.Ward@scotiabank.com

with a copy to:

[Name of L/C Issuer], as L/C Issuer

under the Transfer and Administration Agreement

_________ __, ____

Re: NMC Funding Corporation (the “Transferor”)

Reference is made to the Eighth Amended and Restated Transfer and Administration Agreement, dated as of August 11, 2021 (as the same may have been amended, restated, supplemented or otherwise modified prior to the date hereof, the “Transfer and Administration Agreement”), among the Transferor, National Medical Care, Inc., as collection agent, the entities from time to time parties thereto as “Conduit Investors”, “Bank Investors”, and “Administrative Agents” and The Bank of Nova Scotia, as agent. Capitalized terms used herein without definition are used as defined in the Transfer and Administration Agreement.

C-1


The Transferor hereby gives you notice pursuant to Section 2.18(f) of the Transfer and Administration Agreement, of its request to [amend] [extend] [renew] [modify] Letter of Credit No. __ issued on ________, ____, for the benefit of [Name of Beneficiary], as reflected in the form attached hereto. Such L/C Modification is contemplated to become effective on __________, _____. Each of the L/C Issuer and the beneficiary in respect of such Letter of Credit have agreed to the L/C Modification contemplated herein.

The undersigned hereby certifies that:

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

(b)the representations and warranties set forth in Section 3.1 of the Transfer and Administration agreement will be true and correct both immediately before and immediately after giving effect to the requested L/C Modification; and

(c)after giving effect to the requested L/C Modification, the expiry date of the affected Letter of Credit (including any scheduled or permitted extension thereof as contemplated in such Letter of Credit) shall not be later than (1) the earlier to occur of (i) the date that is three years after the original issuance thereof and (ii) the date that is one year after the Commitment Termination Date or (2) in the case of any ESCO Letter of Credit, the date that is three years after the Commitment Termination Date provided that the L/C Fee shall increase to 1.75% per annum for the period from the Commitment Termination Date to the expiry date of such ESCO Letter of Credit.

    

NMC FUNDING CORPORATION

By:

Name:

Title:

C-2


EXHIBIT D-1

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

FORM OF SPECIAL ACCOUNT LETTER

[Attached]


EXHIBIT D-1

FORM OF SPECIAL ACCOUNT BANK LETTER

[for accounts with manual transfer]

[DATE]

[Name and Address of

Special Account Bank]

[Name of Originating Entity]

Ladies and Gentlemen:

Reference is made to our depository 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].

In the event that you are directed by the Originating Entity to make any changes to the payment instructions specified in this letter, you are hereby instructed to notify Scotiabank in writing of such change at its address at The Bank of Nova Scotia, as Agent, 250 Vesey Street, 23rd Floor, New York, New York 10281, Attention: Asset-Backed Finance, Mid-Office Administration:

William Sun

Judy Bookal

Tel: (212) 225-5331

Tel: (212) 225-5462

Fax: (212) 225-5274

Fax: (212)225-5274

Email: william.sun@scotiabank.com

Email: judy.bookal@scotiabank.com


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 Funding Corporation and 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


FORM OF SPECIAL ACCOUNT BANK LETTER

[for zero balance accounts]

[DATE]

[Name and Address of

Special Account Bank]

[Name of Originating Entity]

Ladies and Gentlemen:

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

This letter confirms that, as of the date hereof, the Account is a zero balance account (“ZBA”) established in accordance with your standard policies and procedures. Unless otherwise directed by the Originating Entity, you are instructed by this letter to effect a transfer (the “Transfer”) at the end of each banking day of the available balance on deposit in the Account solely to the following account by ZBA transfer (internal book entry):

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

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

If so directed by the Originating Entity, the Transfer may be accomplished by ACH, wire or other means of transfer. In such event, the Originating Entity will complete any implementation forms required by you to effect any standing transfer instructions in accordance with your standard policies and procedures then in effect.

In the event that you are directed by the Originating Entity to make any changes to the payment instructions specified in this letter, you are hereby instructed to notify Scotiabank in writing of such change at its address at The Bank of Nova Scotia, as Agent, 250 Vesey Street, 23rd Floor, New York, New York 10281, Attention: Asset-Backed Finance, Mid-Office Administration:

William Sun

Darren Ward

Tel: (212) 225-5331

Tel: (212) 225-5264

Fax: (212) 225-5274

Fax: (212) 225-5274

Email: william.sun@scotiabank.com

Email: darren.ward@scotiabank.com


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 Funding Corporation and 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

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

FORM OF CONCENTRATION ACCOUNT AGREEMENT


EXHIBIT D-2

FORM OF CONCENTRATION ACCOUNT AGREEMENT

(the “Agreement”)

[DATE]

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 The Bank of Nova Scotia (“Scotiabank”), as Agent (the “Agent”) under the Eighth Amended and Restated Transfer and Administration Agreement dated August 11, 2021 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 Scotiabank 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 January 17, 2013 among the Transferor, The Bank of Nova Scotia, as agent thereunder, 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 [               ] or [               ] at the address or facsimile number set forth below (or at such other address or facsimile number as you

1


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).

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

2


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 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, 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 The Bank of Nova Scotia, 250 Vesey Street, 23rd Floor, New York, New York 10281, Attention: Asset-Banked Finance, Middle Office Administration, William Sun and Judy Bookal, facsimile: (212) 225-5274, email: william.sun@scotiabank.com, judy.bookal@scotiabank.com 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 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, 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:

[_________________]

THE BANK OF NOVA SCOTIA, as Agent

By:

Name:

Title:


ANNEX 1

TO CONCENTRATION ACCOUNT LETTER

(FORM OF NOTICE OF EFFECTIVENESS)

DATED: __________________, 201__

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 [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,

THE BANK OF NOVA SCOTIA,

as Agent

By:

Title:


ANNEX II

TO CONCENTRATION ACCOUNT LETTER

(FORM OF INCUMBENCY CERTIFICATE)

CERTIFICATE OF AN OFFICER OF

THE BANK OF NOVA SCOTIA, AS AGENT

The undersigned [                        ] being an [Assistant Secretary] [Vice President] of The Bank of Nova Scotia (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 [DATE] among the Company, NMC Funding Corporation, 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:


Name

Title

Signature

[__________]

[__________]

__________________________

[__________]

[__________]

__________________________

[__________]

[__________]

__________________________

IN WITNESS WHEREOF, I have hereunto set my hand this ___ day of ________, 20__.

By:

[Name]

[Assistant Secretary][Vice President]


EXHIBIT D-3

to

EIGHTH 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 The Bank of Nova Scotia (“Scotiabank”), as Agent (the “Agent”) under the Eighth Amended and Restated Transfer and Administration Agreement dated August 11, 2021 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” and “Administrative Agents” and Scotiabank 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 hereby transfers exclusive ownership, dominion and control 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; provided that at all times prior to the Effective Time (as defined below), you may continue to honor instructions and directions issued by the Transferor in respect of the handling and disposition of Payment Items and amounts from time to time on deposit in the Account.

(b)Prior to Notice of Effectiveness . You are hereby instructed until the Effective Time to transfer at or before the end of each banking day all funds on deposit in the

1


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 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 exclusively 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 Payment Items or amounts in the Account or with respect to any aspect of the handling of 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 earnings, 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. 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, directing the disposition of funds without further consent of the Transferor or any other person.

2


(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 “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 (i) for you to make disbursements and remittances from the Account as and when requested by the Transferor (at all times prior to the issuance of a Notice of Effectiveness) or the Agent and (ii) otherwise 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 other 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

3


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.

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 email 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 email 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 The Bank of Nova Scotia, 250 Vesey

4


Street, 23rd Floor, New York, New York 10281, Attention: Asset-Banked Finance, Middle Office Administration, William Sun and Judy Bookal, facsimile: (212) 225-5274, email: william.sun@scotiabank.com, judy.bookal@scotiabank.com 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.

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, MA 02451

Facsimile No: (781) 699-9756

Email:

ACKNOWLEDGED AND AGREED:

[NAME OF BANK]

By:

Title:

Date:

[Name, Address, Facsimile No. and Email]

THE BANK OF NOVA SCOTIA, as Agent

By:

Name:

Title:


ANNEX I

TO INTERMEDIATE CONCENTRATION ACCOUNT AGREEMENT

[Insert wire instructions for Concentration Account]


ANNEX II

TO INTERMEDIATE CONCENTRATION ACCOUNT AGREEMENT

(FORM OF NOTICE OF EFFECTIVENESS)

DATED:__________________, 20__

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 immediately to comply solely with the instructions of the undersigned and to cease honoring any instructions or directions issued by NMC Funding Corporation or any other person or entity.

Very truly yours,

THE BANK OF NOVA SCOTIA,

as Agent

By:

Title:


ANNEX III

TO INTERMEDIATE CONCENTRATION ACCOUNT AGREEMENT

(FORM OF INCUMBENCY CERTIFICATE)

CERTIFICATE OF AN OFFICER OF

THE BANK OF NOVA SCOTIA, AS AGENT

The undersigned [                    ] being an [Assistant Secretary][Vice President] of The Bank of Nova Scotia (the “Company”) hereby executes and delivers this certificate to [______] (the “Bank”) on behalf of the Company pursuant to the Intermediate Concentration Account Agreement 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 “Intermediate Concentration Account Agreement”). Capitalized terms used herein and not otherwise defined herein shall have the respective meanings assigned thereto in the Intermediate Concentration Account Agreement.

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 Intermediate Concentration Account Agreement, and the signatures appearing opposite the names of such individuals are authentic and genuine and are, in fact, the signatures of such individuals:


Name

Title

Signature

[__________]

[__________]

__________________________

[__________]

[__________]

__________________________

[__________]

[__________]

__________________________

IN WITNESS WHEREOF, I have hereunto set my hand this ___ day of ________, 20__.

By:

[Name]

[Assistant Secretary][Vice President]


EXHIBIT D-4

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

FORM OF NOTICE OF TERMINATION OF SPECIAL ACCOUNT LETTER


EXHIBIT D-4

FORM OF NOTICE OF TERMINATION OF SPECIAL ACCOUNT LETTER

[LETTERHEAD OF

TERMINATED TRANSFERRING AFFILIATE]

[DATE]

[NAME AND ADDRESS OF SPECIAL ACCOUNT BANK]

[Name of Terminated Transferring Affiliate]

Ladies and Gentlemen:

Reference is made to (i) our depository account number [ ] (the “Account”) maintained in the name of the undersigned (the “NMC Affiliate”) with you, and (ii) the letter agreement attached hereto as Exhibit A relating to the Account (the “20[ ] Letter”).

You are hereby notified that, effective upon your receipt of this letter, the 20[ ] Letter shall be terminated and shall cease to be of any force or effect. Accordingly, unless you are instructed otherwise by the NMC Affiliate, you shall immediately discontinue observance of the instructions contained in the 20 [ ] Letter.

Very truly yours,

[NAME OF TERMINATED TRANSFERRING AFFILIATE]

By:

/s/ Mark Fawcett

[Mark Fawcett/Treasurer]

Agreed and acknowledged

as of                             , 201[  ]:

The Bank of Nova Scotia, as Agent

By:

Name:

Title:

D-4-1


EXHIBIT A

TO

FORM OF NOTICE OF TERMINATION OF SPECIAL ACCOUNT LETTER

20[ ] LETTER

(Attached)

D-4-2


EXHIBIT E

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

FORM OF INVESTOR REPORT

The Investor Report shall be substantially in the form of the sample Investor Report attached, with such amendments and modifications as are necessary to reflect the then current terms and conditions of the TAA as of the issuance date of the applicable Investor Report.

E-1


NMC Funding Corporation

Investor Report as of

[ ]/[30]/20[ ]

    

    

    

(a)

(b)

(d)

PORTFOLIO INFORMATION

FKC

RTG

Total

(0)

Outstanding Balance per Rollforward

(1)

Outstanding Balance per Aging

(2)

Receivables as a percent of Total

0%

0%

0%

(3)

Total Estimated Maturity Period From Schedule I

(4)

Collection Delay Factor

CALCULATION OF NET RECEIVABLE BALANCE

(5)

Outstanding Balance

Less Ineligibles:

(6)

A/R on Excluded Systems

(7)

IDPN (Homecare)

(8)

Receivables from Affiliates

(9)

Delinquent Receivables (At Initial Purchase Only)(not included in above)

(10)

Receivables from non-U.S. resident Obligors

(11)

Unrealized Contractual Adjustments (excluding pre-arranged contractual adjustments)

(12)

Receivables from Obligors who are not Designated Obligors

(13)

Defaulted Receivables - >180 days

(14)

Government A/R excluding Medicare, Medicaid, CHAMPUS, & CHAMPUS/VA

(15)

Disputed Receivables - > 180 days (>90 for Medicare)

(16)

Accrued Not Billed Receivables > 120 days

(17)

Other Ineligible Receivables

(18)

Non-Securitization AR Proxy

(19)

Total Ineligible Receivables

(20)

Eligible Receivable Balance

(21)

Self-Pays on eligible systems in excess of 10% of Net Receivables

(22)

Receivables in excess of Concentration Limit per Schedule II

(23)

Excess Eligible Accrued Not Billed Receivables

(24)

Net Receivables Balance

NET INVESTMENT & LETTERS OF CREDIT SUMMARY

(25)

Net Investment

(26)

Letters of Credit outstanding

(27)

Is the Sum of Line (25) & (26) <= $900,000,000

[Yes/No]

Page 1

Exhibit E to TAA - Form of Investor Report


NMC Funding Corporation

Investor Report as of

[ ]/[30]/20[ ]

    

    

    

SELF-PAY SUMMARY

(28)

Total Self-Pay Receivables

(29)

Defaulted Self-Pay Receivables >180 days

(30)

Other Ineligible Self-Pay Receivables

(31)

Eligible Self-Pay Receivables

(32)

10.0% of Eligible Receivables

(33)

Portion of Self Pay Receivables over the 10.0% Limit

(i) The net Receivables balance before the "Self-Pays on eligible systems in excess of 10% of Eligible Receivables" (Line 21) and "Rec. in excess of Concentration Limit " (Line 22) was $[_] * 10% of this amount is $[__] (Line 32). Since FKC accounts for 100% of the total Self-Pay Receivables (Line 27), the entire amount has been included in FKC

(ii) The entire amount of the Receivables in excess of Concentration limits has been included in FKC, since this division accounts for 100% of them

ACRRUED NOT BILLED SUMMARY

    

    

    

(34)

Total Eligible 'Strategic Bill - Hold' Receivables (Eligible Receivables [vi)(B)(2])

(35)

Concentration Limit for Accrued Not Billed Receivables

(36)

Excess Accrued Not Billed Receivables

(36.5)

Total Eligible Short Term Unbilled Government Receivables

(a)

(b)

(d)

FKC

RTG

Total

MONTHLY ACTIVITY

(37)

Sales

(38)

Contractual Adjustments (excluding pre-arranged contractual adjustments)

(39)

Returns & Allowances

(40)

Write-offs

(41)

Cash collections

(42)

Void/Rebills

(43)

Other Negative Billing Adjustments

(44)

Prompt-Pay and System Generated Rebates

(45)

Net Change in Receivables

(46)

Change in Total Receivables Current Month versus Prior Month

(47)

Does Line 45 = Line 46?

[YES/NO]

[YES/NO]

(48)

Contractual Adjustments

(49)

less contractual adjustments related to ineligible receivables (CA >270)

(50)

Returns & Allowances

(51)

Disputed Receivables - Write offs < 270

(52)

Void/Rebills < 270 days

(53)

Other Negative Adjustments

(54)

Monthly Defaulted Receivables (*)

(55)

Deemed disputed during such month

PERCENTAGE FACTOR SUMMARY

(56)

Net Investment

(57)

Letters of Credit outstanding

(58)

Dilution Reserve

(59)

Discount Reserve

(60)

Servicing Fee Reserve

(61)

Loss Reserve

(62)

Net investment plus Reserves

(61)

Net Receivables Balance

(62)

Percentage Factor

(63)

Increase/ (Decrease) to Net investment

(64)

Adjusted Net Investment plus Reserves

(65)

Adjusted Percentage Factor

(66)

Maximum Borrowing

(67)

Remaining Availability

Page 2

Exhibit E to TAA - Form of Investor Report


NMC Funding Corporation

Investor Report as of

[__]/[30]/20[__]

The undersigned, a duly authorized representative of NMC Funding Corporation, as Transferor pursuant to the Eighth Amendment and Restated Transfer and Administration Agreement dated as of August 11, 2021 ("TAA") does hereby certify

(1)

References used herein to certain sections and subsections are references to their respective sections and subsections in the TAA.

(2)

This certificate is being delivered pursuant to 2.11 of the TAA

(3)

The undersigned is an authorized officer of NMC Funding Corporation.

(4)

No Termination Event or Potential Termination Event has occurred under the TAA.

(5)

NMC is in compliance with it's obligations with respect to the Retained Interest and such Retained Interest has not been sold or made subject to any credit risk mitigation or any hedge, in each case except to the extent permitted by the Securitisation Retention Requirements.

(6)

The following information is true and correct in all material respects as of:                 [__]/[30]/20[__]

IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Settlement Statement the [__]th day of [___] 20[__]

National Medical Care, Inc., as Collection Agent

By:

Name:

Mark Fawcett

Page 3

Exhibit E to TAA - Form of Investor Report


NMC Funding Corporation

Investor Report as of

[ ]/[30]/20[ ]

    

    

    

(a)

(b)

(d)

Schedule I - Aging Schedule

FKC

RTG

Total

AGING SCHEDULE (Gross Receivables)

(1)

0-30 Days

(2)

31-60 Days

(3)

61-90 Days

(4)

91-120 Days

(5)

121-150 Days

(6)

151-180 Days

(7)

181-210 Days

(8)

211-240 Days

(9)

241-270 Days

(10)

271-300 Days

(11)

301-330 Days

(12)

331-360 Days

(13)

> 360 Days

(14)

Total Pool

-

-

Total Agings

% of Total

Average Maturity

(15)

0-3 Months

0

0%

0

(16)

4-6 Months

0

0%

0

(17)

7-9 Months

0

0%

0

(18)

10-12 Months

0

0%

0

(19)

>1 Year

0

0%

0

(20)

Total

0

0%

0

(21)

0-6 Months

0

0

Schedule II – Concentrations

    

    

    

    

ST Ratings

LT Ratings

Maximum

A.

CONCENTRATION LIMITS

S&P/Moody's

S&P/Moody's

Group

Amount

(1)

Eligible Receivables Balance

0

Concentration Limits for Obligor Designated as Commercial or Hospitals:

(2)

Aetna Inc.

0

(3)

Cigna Corp.

0

(4)

UnitedHealthcare Insurance Company

0

(5)

Wellpoint (Anthem Inc.)

0

(6)

Humana

0

(7)

(8)

All Other Obligors

0

(9)

Concentration Limit for Obligors Designated as a US Government Obligors

0

Excess Government Receivables

0

Page 4

Exhibit E to TAA - Form of Investor Report


NMC Funding Corporation

Investor Report as of

[__]/[30]/20[__]

    

(a)

    

(b)

    

(d)

    

FKC

RTG

Total

B.

Concentration by Primary Obligor

(10)

Medicare

(11)

Medicaid

(12)

Commercial

(13)

Hospitals

(14)

VA

(15)

Other

(16)

Total Pool

-

-

C.

Top Ten Obligor Concentrations

0-3 Months

4-6 Months

Concentration Limit

Excess Concentration

(17)

United Healthcare

(18)

Aetna

(19)

Anthem

(20)

Humana

(21)

ASD SPECIALTY HEALTHCARE, INC

(22)

Cigna

(23)

Centene

(24)

Wellcare

(25)

BlueCross Texas

(26)

BlueCross Illinois

-

Page 5

Exhibit E to TAA - Form of Investor Report


Monthly Report Inputs

Self-Pay

10.00%

Accrued but Not Billed (Jan/Feb/Mar/Apr)

35.00%

Accrued but Not Billed (All Other Months)

5.00%

Facility Limit

$ 900,000,000

Triggers

Loss to Liquidation

7.00%

Dilution

8.00%

Default Ratio

4.50%

Percentage Factor

100.00%

Prime Rate

3.25%

Base Rate

2.50%

Servicing Fee Percentage

1.00%

Stress Factor

2.50x

Dilution Reserve Floor

2.00%

Recovery Rate

15.00%

Concentration Limits

Concentration

Formal Name

Reporting Name

Limit

Aetna Inc.

Aetna

4.17%

Cigna Corp.

Cigna

6.25%

UnitedHealthcare Insurance Company

United Healthcare

12.50%

Wellpoint (Anthem Inc.)

Anthem

6.25%

Humana

Humana

4.17%

All Other

All Other

2.50%

Moody's

S&P

Moody's

IG

S&P

IG

Fresenius Rating

Baa3

BBB

Aaa

Yes

AAA

Yes

Fresenius Investment Grade Trigger

Yes

Aa1

Yes

AA+

Yes

Aa2

Yes

AA

Yes

Aa3

Yes

AA-

Yes

A1

Yes

A+

Yes

A2

Yes

A

Yes

A3

Yes

A-

Yes

Baa1

Yes

BBB+

Yes

Baa2

Yes

BBB

Yes

Baa3

Yes

BBB-

Yes

Ba1

No

BB+

No

Ba2

No

BB

No

Ba3

No

BB-

No

B1

No

B+

No

B2

No

B

No

B3

No

B-

No

Caa1

No

CCC+

No

Caa2

No

CCC

No

Caa3

No

CCC-

No

Ca

No

CC

No

C

No

C

No

Page 6

Exhibit E to TAA - Form of Investor Report


Schedule IV - Ratio Output Tracking                                                              [__]/[30]/20[__]

    

    

    

    

    

    

    

    

    

#DIV/0!

    

    

    

    

Dilution Reserve Calculation

3-MONTH AVE

J

L=

C

C1

D

D1

D2

E=C+C1+D-D1+D2

F

G

H=

I

12-Month

K=F(1 month prior)/G

Higher of a) ((2.5*J)+(

Contractual

Disputed w/o's

Other

Contractual Adj.'s

Void/Rebills

Total

Credit

Net Receivables

E/F(1 month prior)

12 Month

Average

Dilution

Dilution Reserve

Report Date

Adjustments

< 270 days

Dilution

Related to Ineligible AF

<270 days

Dilution

Sales

Balance

Dilution Ratio (3)

Dilution Spike

Dilution Ratio

Horizon

Percentage

Jan-16

Feb-16

Mar-16

Apr-16

May-16

Jun-16

Jul-16

Aug-16

Sep-16

Oct-16

Nov-16

Dec-16

Jan-17

Feb-17

Mar-17

Apr-17

May-17

Jun-17

Jul-17

Aug-17

Sep-17

Oct-17

Nov-17

Dec-17

Jan-18

Feb-18

Mar-18

Apr-18

May-18

Jun-18

Jul-18

Aug-18

Sep-18

Oct-18

Nov-18

Dec-18

Jan-19

Feb-19

Mar-19

Apr-19

May-19

Jun-19

Jul-19

Aug-19

Sep-19

Oct-19

Nov-19

Dec-19

Jan-20

Feb-20

Mar-20

Apr-20

May-20

Jun-20

Jul-20

Aug-20

Sep-20

Oct-20

Nov-20

Page 7

Exhibit E to TAA - Form of Investor Report


    

    

    

    

    

    

    

    

    

#DIV/0!

    

    

    

    

Dilution Reserve Calculation

3-MONTH AVE

J

L=

C

C1

D

D1

D2

E=C+C1+D-D1+D2

F

G

H=

I

12-Month

K=F(1 month prior)/G

Higher of a) ((2.5*J)+(

Contractual

Disputed w/o's

Other

Contractual Adj.'s

Void/Rebills

Total

Credit

Net Receivables

E/F(1 month prior)

12 Month

Average

Dilution

Dilution Reserve

Report Date

Adjustments

< 270 days

Dilution

Related to Ineligible AF

<270 days

Dilution

Sales

Balance

Dilution Ratio (3)

Dilution Spike

Dilution Ratio

Horizon

Percentage

Dec-20

Jan-21

Feb-21

Mar-21

Apr-21

May-21

Jun-21

Jul-21

Aug-21

Sep-21

Oct-21

Nov-21

Dec-21

Page 8

Exhibit E to TAA - Form of Investor Report


Schedule V - Ratio Output Tracking                                                                    [__]/[30]/20[__]

J*(1-L)

(Higher of Stress

Loss Reserve Calculation

D

Recovery

F

G=

H

I

J=

Factor*Loss Horizon

A

B

C

Sales For Ninth

E=C/D

Recovery

Adjusted

Average 3 Month

(Max (F) last 12 Mths)

Preceding Sales for

Net

G*(H/I)

Ratio or 12.5%)

Monthly defaulted

Deemed disputed

Monthly defaults

Preceding

Default

Rate

Default

Recovery Adj.

Default

7 Months Non-Medicare

Receivables

Loss Horizon

Loss

Report Date

Rec. + W/O <270 (i)

during such month >270

+ Write-offs (i)

Month

Ratio

(Max 40%)

Ratio

Default Ratio

Spike

3 months Medicare

Balance

Ratio

Reserve %

Jan-17

Feb-17

Mar-17

Apr-17

May-17

Jun-17

Jul-17

Aug-17

Sep-17

Oct-17

Nov-17

Dec-17

Jan-18

Feb-18

Mar-18

Apr-18

May-18

Jun-18

Jul-18

Aug-18

Sep-18

Oct-18

Nov-18

Dec-18

Jan-19

Feb-19

Mar-19

Apr-19

May-19

Jun-19

Jul-19

Aug-19

Sep-19

Oct-19

Nov-19

Dec-19

Jan-20

Feb-20

Mar-20

Apr-20

May-20

Jun-20

Jul-20

Aug-20

Sep-20

Oct-20

Nov-20

Dec-20

Jan-21

Feb-21

Mar-21

Apr-21

May-21

Jun-21

Jul-21

Aug-21

Sep-21

Oct-21

Nov-21

Page 9

Exhibit E to TAA - Form of Investor Report


Calculations

NMC Funding Corporation

Receivables Reconciliation Report                        [__]/[30]/20[__]

Check

5

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

Month

Beginning
Receivable Balance

Credit Sales

Credit Sales Less
Medicare

Medicare Sales

Sales
Tax

Total Credit Sales

Cash Collections

Returned
Checks

Net Cash
Collections

Write-Offs

Gross Write Offs

Contractual
Adjustments

Void/Rebills

Vendor
Rebates

Total Dilutions

Adjustments

Ending Receivable
Balance

Jan-18

Feb-18

Mar-18

Apr-18

May-18

Jun-18

Jul-18

Aug-18

Sep-18

Oct-18

Nov-18

Dec-18

Jan-19

Feb-19

Mar-19

Apr-19

May-19

Jun-19

Jul-19

Aug-19

Sep-19

Oct-19

Nov-19

Dec-19

Jan-20

Feb-20

Mar-20

Page 10

Exhibit E to TAA - Form of Investor Report


NMC Funding Corporation

Receivables Aging Schedule

Check

6

Month

Total Rec.

0-3 Months.

% of
Total

4-6 Months

% of
Total

7-9 Months

% of
Total

10-12 Months

% of
Total

Over 1 Year

% of
Total

Total Defaulted
Receivables

% of
Total

0-6 Month

Receivables

% of
Total

Total Rec.

% of
Total

Page 11

Exhibit E to TAA - Form of Investor Report


NMC Funding Corporation

Loss to Liquidation Ratio

(1)

(2)

(3)

(4)

(5)

Month

Estimated
Rec's 121-
150 DPD*

Monthly Write-offs

Collections for
Current Month

Loss to
Liquidation
Ratio

3 Month
Rolling
Average
Loss to
Liquidation
Ratio

Page 12

Exhibit E to TAA - Form of Investor Report


NMC Funding Corporation

Default Ratio

(1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

Month

Monthly
defaulted
Receceivables (i)

Deemed
disputed
during such
month

Total Write-Offs

Monthlty
defaulted/dispute
d receceivables
+W/O

Sales for the
Ninth Preceding
Month

Default
Ratio

Three
Month
Average
Default
Ratio

Default
Ratio
Spike

Page 13

Exhibit E to TAA - Form of Investor Report


NMC Funding Corporation

Dilution Ratio

#VALUE!

#VALUE!

#VALUE!

#VALUE!

(1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

(9)

(10)

(11)

Month

Contractual
Adjustments

Disputed
Receivables
W/O's <270 days

Contractual
Adj. Related to
Defaulted
Receivables

Void/Rebills (<270
Days)

Other Dilution

Credit Sales

Net Receivables
Balance

Dilution
Ratio

Dilution
Spike

Twelve
Month
Dilution
Ratio
Average

Dilution
Horizon

Page 14

Exhibit E to TAA - Form of Investor Report


1

2

3

4

5

6

7

8

9

10

Largest

Second Largest

Third Largest

Fourth Largest

Fifth Largest

Sixth Largest

Seventh Largest

Eighth Largest

Ninth Largest

Tenth Largest

Period

Eligible
Receivables

Net
Receivables
Balance

Name

A/R

Limit

Excess

Name

A/R

Limit

Excess

Name

A/R

Limit

Excess

Name

A/R

Limit

Excess

Name

A/R

Limit

Excess

Name

A/R

Limit

Excess

Name

A/R

Limit

Excess

Name

A/R

Limit

Excess

Name

A/R

Limit

Excess

Name

A/R

Limit

Excess

Total Obligor
Excess

Sep-16

Oct-16

Nov-16

Dec-16

Jan-17

Feb-17

Mar-17

Apr-17

May-17

Jun-17

Jul-17

Aug-17

Sep-17

Oct-17

Nov-17

Dec-17

Jan-18

Feb-18

Mar-18

Apr-18

May-18

Jun-18

Jul-18

Aug-18

Sep-18

Oct-18

Nov-18

Dec-18

Jan-19

Feb-19

Mar-19

Apr-19

May-19

Jun-19

Jul-19

Aug-19

Sep-19

Oct-19

Nov-19

Dec-19

Jan-20

Feb-20

Feb-20

Apr-20

May-20

Jun-20

Jul-20

Aug-20

Sep-20

Oct-20

Nov-20

Dec-20

Jan-21

Feb-21

Mar-21

Apr-21

May-21

Jun-21

Jul-21

Aug-21

Sep-21

Oct-21

Nov-21

Dec-21

Page 15

Exhibit E to TAA - Form of Investor Report


NMC Funding Corporation

Receivables Reconciliation Report

Check

3

[__]/[30]/20[__]

Month

Beginning
Receivable
Balance

Credit
Sales

Cash
Collections

Gross
Write Offs

Recoveries

Net
Write Offs

Contractual
Adjustments

Void/Rebills

Other
Dilution

Adjustments

Ending
Receivable
Balance

Jan-17

Feb-17

Mar-17

Apr-17

May-17

Jun-17

Jul-17

Aug-17

Sep-17

Oct-17

Nov-17

Dec-17

Jan-18

Feb-18

Mar-18

Apr-18

May-18

Jun-18

Jul-18

Aug-18

Sep-18

Oct-18

Nov-18

Dec-18

Jan-19

Feb-19

Mar-19

Apr-19

May-19

Jun-19

Jul-19

Aug-19

Sep-19

Oct-19

Nov-19

Dec-19

Jan-20

Feb-20

Mar-20

Apr-20

May-20

Jun-20

Page 16

Exhibit E to TAA - Form of Investor Report


Page 17

Exhibit E to TAA - Form of Investor Report


Schedule III - Discount

List all Tranches which were outstanding as of the date hereof:                 [     ]/[30]/20[     ]

    

    

(a)

    

(b)

    

(c)

    

(d)

    

(f)

input

input

input

input

(d x e x [c/360])

Net

Issue

Maturity

Face

Unpaid Discount

Bank

Investment

Date

Date

# days

Amount

Amount

Scotiabank

Page 18

Exhibit E to TAA - Form of Investor Report - Schedule III - Commercial P


Net

Issue

Maturity

Face

Unpaid Discount

Bank

    

Investment

    

Date

    

Date

    

# days

    

Amount

    

Amount

TD Bank

Page 19

Exhibit E to TAA - Form of Investor Report - Schedule III - Commercial P


Net

Issue

Maturity

Face

Unpaid Discount

Bank

    

Investment

    

Date

    

Date

    

# days

    

Amount

    

Amount

Credit Agricole

Page 20

Exhibit E to TAA - Form of Investor Report - Schedule III - Commercial P


Net

Issue

Maturity

Face

Unpaid Discount

Bank

    

Investment

    

Date

    

Date

    

# days

    

Amount

    

Amount

RBC

0

Page 21

Exhibit E to TAA - Form of Investor Report - Schedule III - Commercial P


Net

Issue

Maturity

Face

Unpaid Discount

Bank

    

Investment

    

Date

    

Date

    

# days

    

Amount

    

Amount

BTMU

0

Page 22

Exhibit E to TAA - Form of Investor Report - Schedule III - Commercial P


Net

Issue

Maturity

Face

Unpaid Discount

Bank

    

Investment

    

Date

    

Date

    

# days

    

Amount

    

Amount

PNC

0

TOTAL

New Net Investment Based on this Report

    

    

    

Total as of [__]/[30]/20[__]

0

Future

Current

Change from

pro-rata

Net Investment

Net Investment

Current

Scotiabank

18.75%

-

-

0

TD Bank

17.50%

-

-

0

Credit Agricole

17.50%

-

-

0

RBC

17.50%

-

-

0

BTMU

14.38%

-

-

0

PNC

14.38%

-

-

0

TOTAL

100.00%

-

-

$0

Page 23

Exhibit E to TAA - Form of Investor Report - Schedule III - Commercial P


NMC FUNDING CORPORATION

Amended and Restated Transfer and Administration Agreement

UCC Financing Statements

Name of Entity

Jurisdiction of

Filing Date

Filing #

Page 24

Exhibit E to TAA - Form of Investor Report Schedule VI - UCC Filings


EXHIBIT F

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

FORM OF TRANSFER CERTIFICATE

[Attached]


EXECUTION COPY

EIGHTH AMENDED AND RESTATED TRANSFER CERTIFICATE

Reference is made to the Eighth Amended and Restated Transfer and Administration Agreement dated as of August 11, 2021, (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”), Liberty Street Funding LLC as a Conduit Investor, Atlantic Asset Securitization LLC as a Conduit Investor, GTA Funding LLC as a Conduit Investor, Thunder Bay Funding, LLC as a Conduit Investor, Victory Receivables Corporation as a Conduit Investor, the financial institutions from time to time a party thereto as Bank Investors, Credit Agricole Corporate and Investment Bank, New York as an Administrative Agent, The Toronto- Dominion Bank as an Administrative Agent, Royal Bank of Canada as an Administrative Agent, PNC Bank, National Association as an Administrative Agent, MUFG Bank, Ltd. f/k/a The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch as an Administrative Agent, and The Bank of Nova Scotia 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, restates and supersedes in its entirety that certain Transfer Certificate dated as of January 17, 2013 issued to The Bank of Nova Scotia, as Agent (the “Earlier Transfer Certificate”), which Earlier Transfer Certificate previously superseded all prior “Certificates” and “Transfer Certificates” issued under predecessor versions of the Agreement.

[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 November      , 2014

2


Transfer Certificate
(Grid)

    

    

Increase (or

    

Decrease in Net

Notation

Date

Event2

Investment

Made By


2 Specify whether Incremental Transfer or Reduction in Net Investment.

3


EXHIBIT G

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

FORM OF ASSIGNMENT AND ASSUMPTION

Dated                          , 20_

Reference is made to the Eighth Amended and Restated Transfer and Administration Agreement dated as of August 11, 2021 (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 The Bank of Nova Scotia, 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 $                  3, 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


3This amount shall be an amount determined, calculated, allocated and otherwise mutually agreed to by the Assignor and Assignee in their sole discretion.

G-1


Reinvestment Termination Date, notwithstanding that the Assignor had such right) and]4 [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


4To 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.

G-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]5 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.

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]


5To be included only where the Assignor is a Bank Investor under the TAA.

G-3


    

By:

[ASSIGNEE]

By:

[Approved this            day

of                         , 20      

[ADMINISTRATIVE AGENT]

By:

Title:]

Accepted and recorded this             day

of                             , 20      

THE BANK OF NOVA SCOTIA, as Agent

By:

Title:

G-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

%

[Aggregate Amount of Letters of Credit assigned to Assignee:]6

$

[Aggregate Amount of Unpaid Reimbursement Obligations under Letters of Credit assigned to Assignee:]7

$

[Assignee’s Commitment (after giving effect hereto):]8

$

[Assignor’s remaining Commitment (after giving effect hereto)]

$


6To be included only where the Assignor is a Bank Investor under the TAA.

7To be included only where the Assignor is a Bank Investor under the TAA.

8To be included only where the Assignor is a Bank Investor under the TAA.


Section 2.

Assignment Date:                   , 20      

Address for Notices:

[Name of Assignor]

[Address]

[Facsimile Number/Confirmation Number]

[Name of Assignee]

[Address]

[Facsimile Number/Confirmation Number]


EXHIBIT H

to

EIGHTH 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: See below under Legal and Regulatory Matters

3.1(g)(ii)Affiliates: The “Legal and Regulatory Matters” section of the most recent annual report on Form 20-F or report on Form 6-K for the quarter, as applicable, and such other Form 6-Ks referencing therein any actions, suits or proceedings, each as filed by Fresenius Medical Care AG & Co. KGaA (“FME KGaA” or the “Company”) with the U.S. Securities and Exchange Commission (“SEC”) under the Securities Exchange Act of 1934 is hereby incorporated by reference as if fully set forth herein.

Such filings can be found on the SEC website at the following link: https://www.sec.gov/cgi- bin/browse-edgar?action=getcompany&CIK=0001333141&owner=exclude&count=40&hidefilings=0

The following are excerpts from the report on Form 6-K of FME KGaA filed with the Securities and Exchange Commission on July 30, 2021 for the period ending June 30, 2021 (in thousands, except share and per share data):

Legal and Regulatory Matters

The Company is routinely involved in claims, lawsuits, regulatory and tax audits, investigations and other legal matters arising, for the most part, in the ordinary course of its business of providing health care services and products. Legal matters that the Company currently deems to be material or noteworthy are described below. The Company records its litigation reserves for certain legal proceedings and regulatory matters to the extent that the Company determines an unfavorable outcome is probable and the amount of loss can be reasonably estimated. For the other matters described below, the Company believes that the loss probability is remote and/or the loss or range of possible losses cannot be reasonably estimated at this time. The outcome of litigation and other legal matters is always difficult to predict accurately and outcomes that are not consistent with the Company’s view of the merits can occur. The Company believes that it has valid defenses to the legal matters pending against it and is defending itself vigorously. Nevertheless, it is possible that the resolution of one or more of the legal matters currently pending or threatened could have a material adverse effect on its business, results of operations and financial condition.

Beginning in 2012, the Company received certain communications alleging conduct in countries outside the United States that might violate the Foreign Corrupt Practices Act or other anti-bribery laws. The Company conducted investigations with the assistance of outside counsel and, in a continuing dialogue, advised the Securities and Exchange Commission (“SEC”) and the United States Department of Justice (“DOJ”) about these investigations. The DOJ and the SEC also conducted their own investigations, in which the Company cooperated. In the course of this dialogue, the Company identified and reported to the DOJ and the SEC, and took remedial actions with respect to, conduct that resulted in the DOJ and the SEC

H-1


seeking monetary penalties including disgorgement of profits and other remedies. This conduct revolved principally around the Company's products business in countries outside the United States.

On March 29, 2019, the Company entered into a non-prosecution agreement (“NPA”) with the DOJ and a separate agreement with the SEC intended to resolve fully and finally the U.S. government allegations against the Company arising from the investigations. Both agreements included terms starting August 2, 2019. The DOJ NPA is scheduled to terminate on August 2, 2022 and the dismissal of the SEC Order is scheduled to occur on November 30, 2022. The Company paid a combined total in penalties and disgorgement of approximately $231,715 (€205,854) to the DOJ and the SEC in connection with these agreements. The entire amount paid to the DOJ and the SEC was reserved for in charges that the Company recorded in 2017 and 2018 and announced in 2018. As part of the resolution, the Company agreed to certain self-reporting obligations and to retain an independent compliance monitor. Due to COVID-19 pandemic restrictions, the monitorship program faced certain delays, but the Company is working to have all its obligations under the resolution with the DOJ and SEC completed in 2022.

In 2015, the Company self-reported to the German prosecutor conduct with a potential nexus to Germany and continues to cooperate with government authorities in Germany in their review of the conduct that prompted the Company's and United States government investigations.

Since 2012, the Company has made and continues to make further significant investments in its compliance and financial controls and in its compliance, legal and financial organizations. The Company's remedial actions included separation from those employees responsible for the above-mentioned conduct. The Company is dealing with post-FCPA review matters on various levels. The Company continues to be fully committed to compliance with the FCPA and other applicable anti-bribery laws.

On October 30, 2020, Mexico’s primary social security and health care agency filed a civil complaint in the United States District Court for the District of Massachusetts (Boston) asserting claims for common law fraud against the Company and FMCH. 2020 Civ. 11927-IT (E. D. Mass.). The allegations of the complaint rely on the Company’s resolution under the FCPA. After both FMCH and the Company moved to dismiss the complaint, the plaintiff moved on June 23, 2021 to dismiss the complaint voluntarily without prejudice. The court granted plaintiff’s motion the same day.

FMCH's insurers agreed to the settlement in 2017 of personal injury litigation related to FMCH's Granuflo® and Naturalyte® acid concentrate products and funded $220,000 (€179,284) of the settlement fund under a reciprocal reservation of rights. FMCH accrued a net expense of $60,000 (€48,896) in connection with the settlement, including legal fees and other anticipated costs. Following the settlement, FMCH's insurers in the AIG group initiated litigation against FMCH seeking to be indemnified by FMCH for their $220,000 (€179,284) outlay and FMCH initiated litigation against the AIG group to recover defense and indemnification costs FMCH had borne. National Union Fire Insurance v. Fresenius Medical Care, 2016 Index No. 653108 (Supreme Court of New York for New York County).

Discovery in the litigation is complete. The AIG group abandoned certain of its coverage claims and submitted expert reports on damages asserting that, if AIG prevails on all its remaining claims, it should recover $60,000 (€48,896). FMCH contests all of AIG’s claims and submitted expert reports supporting rights to recover $108,000 (€88,012) from AIG, in addition to the $220,000 (€179,284) already funded. A trial date has not been set in the matter.

In August 2014, FMCH received a subpoena from the United States Attorney’s Office (“USAO”) for the District of Maryland inquiring into FMCH's contractual arrangements with hospitals and physicians involving contracts relating to the management of in-patient acute dialysis services. On August 27, 2020,

H-2


after the USAO declined to pursue the matter by intervening, the United States District Court for Maryland unsealed a 2014 relator’s qui tam complaint that gave rise to the investigation. United States ex rel. Martin Flanagan v. Fresenius Medical Care Holdings, Inc., 2014 Civ. 00665 (D. Maryland). The relator has served the complaint and litigation is proceeding. In response to FMCH’s motion to dismiss the unsealed complaint, the relator filed an amended complaint on February 5, 2021 making broad allegations about financial relationships between FMCH and nephrologists.

In July 2015, the Attorney General for Hawaii issued a civil complaint under the Hawaii False Claims Act alleging a conspiracy pursuant to which certain Liberty Dialysis subsidiaries of FMCH overbilled Hawaii Medicaid for Liberty's Epogen® administrations to Hawaii Medicaid patients during the period from 2006 through 2010, prior to the time of FMCH's acquisition of Liberty. Hawaii v. Liberty Dialysis—Hawaii, LLC et al., Case No. 15-1-1357-07 (Hawaii 1st Circuit). The State alleges that Liberty acted unlawfully by relying on incorrect and unauthorized billing guidance provided to Liberty by Xerox State Healthcare LLC, which acted as Hawaii's contracted administrator for its Medicaid program reimbursement operations during the relevant period. With discovery concluded, the State has specified that its demands for relief relate to $7,700 (€6,275) in overpayments on approximately twenty thousand “claims” submitted by Liberty. After prevailing on motions by Xerox to preclude it from doing so, FMCH is pursuing third-party claims for contribution and indemnification against Xerox. The State's False Claims Act complaint was filed after Liberty initiated an administrative action challenging the State's recoupment of alleged overpayments from sums currently owed to Liberty. The civil litigation and administrative action are proceeding in parallel. Trial in the civil litigation has been postponed because of COVID-19-related administrative issues and has been rescheduled for January 2022.

On August 31, 2015, FMCH received a subpoena under the False Claims Act from the United States Attorney for the District of Colorado (Denver) inquiring into FMCH’s participation in and management of dialysis facility joint ventures in which physicians are partners. FMCH continues to cooperate in the Denver USAO investigation, which has come to focus on purchases and sales of minority interests in ongoing outpatient facilities between FMCH and physician groups.

On November 25, 2015, FMCH received a subpoena under the False Claims Act from the United States Attorney for the Eastern District of New York (Brooklyn) also inquiring into FMCH’s involvement in certain dialysis facility joint ventures in New York. On September 26, 2018, the Brooklyn USAO declined to intervene on the qui tam complaint filed under seal in 2014 that gave rise to this investigation. CKD Project LLC v. Fresenius Medical Care, 2014 Civ. 06646 (E.D.N.Y. November 12, 2014). The court unsealed the complaint, allowing the relator to proceed on its own. On January 27, 2021, the Magistrate Judge recommended dismissal of the complaint with prejudice and without leave to amend. The relator is appealing the Magistrate Judge’s recommendation.

Beginning October 6, 2015, the United States Attorney for the Eastern District of New York (Brooklyn) has led an investigation, through subpoenas issued under the False Claims Act, of utilization and invoicing by FMCH’s subsidiary Azura Vascular Care for a period beginning after FMCH’s acquisition of American Access Care LLC ("AAC") in October 2011. FMCH is cooperating in the Brooklyn USAO investigation. The Brooklyn USAO has indicated that its investigation is nationwide in scope and is focused on whether certain access procedures performed at Azura facilities were medically unnecessary and whether certain physician assistants employed by Azura exceeded their permissible scope of practice. Allegations against AAC arising in districts in Connecticut, Florida and Rhode Island relating to utilization and invoicing were settled in 2015.

On November 18, 2016, FMCH received a subpoena under the False Claims Act from the United States Attorney for the Eastern District of New York (Brooklyn) seeking documents and information relating to

H-3


the operations of Shiel Medical Laboratory, Inc. (“Shiel”), which FMCH acquired in October 2013. In the course of cooperating in the investigation and preparing to respond to the subpoena, FMCH identified falsifications and misrepresentations in documents submitted by a Shiel salesperson that relate to the integrity of certain invoices submitted by Shiel for laboratory testing for patients in long term care facilities. On February 21, 2017, FMCH terminated the employee and notified the United States Attorney of the termination and its circumstances. The terminated employee's conduct is expected to result in demands for FMCH to refund overpayments and to pay related penalties under applicable laws, but the monetary value of such payment demands cannot yet be reasonably estimated. FMCH contends that, under the asset sale provisions of its 2013 Shiel acquisition, it is not responsible for misconduct by the terminated employee or other Shiel employees prior to the date of the acquisition. The Brooklyn USAO continues to investigate a range of issues involving Shiel, including allegations of improper compensation (kickbacks) to physicians, and has disclosed that multiple sealed qui tam complaints underlie the investigation.

On December 12, 2017, FMCH sold to Quest Diagnostics certain Shiel operations that are the subject of this Brooklyn subpoena, including the misconduct reported to the United States Attorney. Under the Quest Diagnostics sale agreement, FMCH retains responsibility for responding to the Brooklyn investigation and for liabilities arising from conduct occurring after its 2013 acquisition of Shiel and prior to its sale of Shiel to Quest Diagnostics. FMCH is cooperating in the investigation.

In May 2017, the United States Attorney for the Middle District of Tennessee (Nashville) issued identical subpoenas to FMCH and two subsidiaries under the False Claims Act concerning FMCH's retail pharmaceutical business. The subpoenas, and the subsequent investigation in which FMCH cooperated, were apparently predicated on but were not limited to a complaint filed on November 6, 2015 by two former employees. United States ex rel. Keasler et al. v. Fresenius Medical Care Rx, LLC, 03:15-Civ-01183 (M.D. Tenn. 2015). On July 9, 2021, the United States declined to intervene in the matter. On July 13, 2021, the Court allowed the relators’ complaint to be unsealed. The relators may elect to serve the complaint.

On March 12, 2018, Vifor Fresenius Medical Care Renal Pharma Ltd. and Vifor Fresenius Medical Care Renal Pharma France S.A.S. (collectively, “VFMCRP”) (see note 3), filed a complaint for patent infringement against Lupin Atlantis Holdings SA and Lupin Pharmaceuticals Inc. (collectively, “Lupin”), and Teva Pharmaceuticals USA, Inc. (“Teva”) in the U.S. District Court for the District of Delaware (Case 1:18-cv-00390-MN, “first complaint”). The patent infringement action is in response to Lupin and Teva’s filings of Abbreviated New Drug Applications ("ANDA") with the U.S. Food and Drug Administration ("FDA") for generic versions of Velphoro®. Velphoro® is protected by patents listed in the FDA’s Approved Drug Products with Therapeutic Equivalence Evaluations, also known as the Orange Book. The complaint was filed within the 45-day period provided for under the Hatch-Waxman legislation, and triggered a stay of FDA approval of the ANDAs for 30 months (specifically, up to July 29, 2020 for Lupin’s ANDA; and August 6, 2020 for Teva’s ANDA. In response to another ANDA being filed for a generic Velphoro®, VFMCRP filed a complaint for patent infringement against Annora Pharma Private Ltd., and Hetero Labs Ltd. (collectively, “Annora”), in the U.S. District Court for the District of Delaware on December 17, 2018. The case was settled among the parties, thus terminating the court action on August 4, 2020. On May 26, 2020, VFMCRP filed a further complaint for patent infringement against Lupin in the U.S. District Court for the District of Delaware (Case No. 1:20-cv-00697-MN) in response to Lupin’s ANDA for a generic version of Velphoro® and on the basis of a newly listed patent in the Orange Book. On July 6, 2020, VFMCRP filed an additional complaint for patent infringement against Lupin and Teva in the U.S. District Court for the District of Delaware (Case No. 1:20-cv-00911-MN, “second complaint”) in response to the companies’ ANDA for generic versions of Velphoro® and on the basis of two newly listed patents in the Orange Book. All cases involving Lupin as defendant were settled among the parties, thus terminating the corresponding court actions on December 18, 2020. In relation to the remaining pending cases and the defendant Teva, trial took place for the first complaint between January 19 and 22,

H-4


2021. Another patent newly listed in the Orange Book was added to the second complaint on June 23, 2021. Trial is scheduled for the second complaint for June 2022.

On December 17, 2018, FMCH was served with a subpoena under the False Claims Act from the United States Attorney for the District of Colorado (Denver) as part of an investigation of allegations against DaVita, Inc. involving transactions between FMCH and DaVita. The subject transactions include sales and purchases of dialysis facilities, dialysis-related products and pharmaceuticals, including dialysis machines and dialyzers, and contracts for certain administrative services. FMCH is cooperating in the investigation.

On June 28, 2019, certain FMCH subsidiaries filed a complaint against the United States seeking to recover monies owed to them by the United States Department of Defense under the Tricare program, and to preclude Tricare from recouping monies previously paid. Bio-Medical Applications of Georgia, Inc., et al.v. United States, CA 19-947, United States Court of Federal Claims. Tricare provides reimbursement for dialysis treatments and other medical care provided to members of the military services, their dependents and retirees. The litigation challenges unpublished administrative actions by Tricare administrators reducing the rate of compensation paid for dialysis treatments provided to Tricare beneficiaries based on a recasting or “crosswalking” of codes used and followed in invoicing without objection for many years. Tricare administrators have acknowledged the unpublished administrative action and declined to change or abandon it. On July 8, 2020, the U.S. government filed its answer (and confirmed their position). The parties will proceed to discovery. The court has not yet set a date for trial in this matter. FMCH has imposed a constraint on revenue otherwise recognized from the Tricare program that it believes, in consideration of facts currently known, sufficient to account for the risk of this litigation.

On August 21, 2020, FMCH was served with a subpoena from the United States Attorney for the District of Massachusetts requesting information and documents related to urgent care centers that FMCH owned, operated, or controlled as part of its ChoiceOne and Medspring urgent care operations prior to its divestiture of and exit from that line of business in 2018. The subpoena appears to be related to an ongoing investigation of alleged upcoding in the urgent care industry, which has resulted in certain published settlements under the federal False Claims Act. FMCH is cooperating in the investigation.

On March 25, 2021, FMCH received a grand jury subpoena issued from the United States District Court for the Northern District of Texas (Dallas). The subpoena seeks documents comprising communications between employees of FMCH and DaVita and partially overlaps in content the 2018 Denver subpoena. The Dallas subpoena is part of a separate investigation by the Anti-Trust Division of the Department of Justice into possible employee “no poaching” and similar agreements to refrain from competition and is related to the indictment in United States v. Surgical Care Affiliates, 3:2021-Cr-0011 (N.D. Tex.) and United States v. DaVita, Inc. et al., 1:21-cr00229 (D.Col.). The unnamed co-conspirators described in the Surgical Care Affiliates and DaVita indictments do not include FMCH, the Company, or any of their employees. FMCH is cooperating in the investigation.

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, insurance plans and suppliers, 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 marketing and distribution of such products, the operation of manufacturing facilities, laboratories, dialysis clinics and other health care facilities, and environmental and occupational health and safety. With respect to its development, manufacture, marketing

H-5


and distribution of medical products, if such compliance is not maintained, the Company could be subject to significant adverse regulatory actions by the FDA and comparable regulatory authorities outside the U.S. These regulatory actions could include warning letters or other enforcement notices from the FDA, and/or comparable foreign regulatory authority which may require the Company to expend significant time and resources in order to implement appropriate corrective actions. If the Company does not address matters raised in warning letters or other enforcement notices to the satisfaction of the FDA and/or comparable regulatory authorities outside the U.S., these regulatory authorities could take additional actions, including product recalls, injunctions against the distribution of products or operation of manufacturing plants, civil penalties, seizures of the Company’s products and/or criminal prosecution. FMCH completed remediation efforts with respect to one pending FDA warning letter and is awaiting confirmation as to whether the letter is now closed. The Company must also comply with the laws of the United States, including the federal Anti-Kickback Statute, the federal False Claims Act, the federal Stark Law, the federal Civil Monetary Penalties Law and the federal Foreign Corrupt Practices Act as well as 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 whistleblower actions. By virtue of this regulatory environment, the Company’s business activities and practices are subject to extensive review by regulatory authorities and private parties, and continuing audits, 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 whistleblower actions, which are initially filed under court seal.

The Company operates many facilities and handles the personal data ("PD") of its patients and beneficiaries throughout the United States and other parts of the world and engages with other business associates to help it carry out its health care activities. 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 and its business associates. On occasion, the Company or its business associates may experience a breach under the Health Insurance Portability and Accountability Act Privacy Rule and Security Rules, the EU’s General Data Protection Regulation and or other similar laws ("Data Protection Laws") when there has been impermissible use, access, or disclosure of unsecured PD or when the Company or its business associates neglect to implement the required administrative, technical and physical safeguards of its electronic systems and devices, or a data breach that results in impermissible use, access or disclosure of personal identifying information of its employees, patients and beneficiaries. On those occasions, the Company must comply with applicable breach notification requirements.

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 its employees. On occasion, the Company may identify instances where employees or other agents deliberately, recklessly or inadvertently contravene the Company’s policies or violate applicable law. The actions of such persons may subject the Company and its subsidiaries to liability under the Anti-Kickback Statute, the Stark Law, the False Claims Act, Data Protection Laws, the Health Information Technology for Economic and Clinical Health Act and the Foreign Corrupt Practices Act, among other laws and comparable state laws or laws of other countries.

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

H-6


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.

In Germany, the tax audits for the years 2006 through 2009 have been substantially completed. The German tax authorities have indicated a re-qualification of dividends received in connection with intercompany mandatorily redeemable preferred shares into fully taxable interest payments for these and subsequent years until 2013. The Company has defended its position and will avail itself of appropriate remedies. The Company is also subject to ongoing and future tax audits in the U.S., Germany and other jurisdictions in the ordinary course of business. Tax authorities routinely pursue adjustments to the Company’s tax returns and disallowances of claimed tax deductions. When appropriate, the Company defends these adjustments and disallowances and asserts its own claims. A successful tax related claim against the Company or any of its subsidiaries could have a material adverse effect upon its business, financial condition and results of operations.

Other than those individual contingent liabilities mentioned above, the current estimated amount of the Company's other known individual contingent liabilities is immaterial.

3.1(k)(iv)

Tradenames:

Renal Care Group

National Nephrology Associates

TruBlu Logistics (FUSA Mfg)

Renal Pharmaceuticals

Fresenius Renal Technologies

Fresenius Renal Therapies

Fresenius Kidney Care Fresenius

Fresenius USA

3.1(k)(iv)

Merger:

On September 25, 2018, American Access Care of Bucks County, LLC,
American Access Care of Pittsburgh, LLC, Gynesis Healthcare of
Pennsylvania, Inc. and PD Solutions of Pennsylvania, merged into
Physicians Dialysis Company, Inc.

On September 25, 2018, Mercy Dialysis Center, Inc. merged into Bio- Medical Applications of Wisconsin, Inc.

3.3(e)

Collection Agent:

None

Affiliates:

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

H-7


EXHIBIT I

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

LOCATION OF RECORDS

[Attached]

I-1


EXHIBIT I

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

LOCATION OF RECORDS

Number

Name

TAX ID

Billing Group Name1

Addr1

City1

ST1

Zip1

1

Apheresis Care Group, Inc.

841677784

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

2

BioMedical Applications Management Company, Inc.

221946461

Fresenius Medical Care

920 Winter St

Waltham

MA

02451

3

BioMedical Applications of Alabama, Inc.

042625090

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

4

BioMedical Applications of Amarillo, Inc.

042649134

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

5

BioMedical Applications of Anacostia, Inc.

042716481

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

6

BioMedical Applications of Aguadilla, Inc.

042968314

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

7

BioMedical Applications of Arecibo, Inc.

042740118

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

8

BioMedical Applications of Arkansas, Inc.

042505389

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

9

BioMedical Applications of Bayamon, Inc.

042832066

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

10

BioMedical Applications of Blue Springs, Inc.

042975267

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

11

BioMedical Applications of Caguas, Inc.

042739513

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

12

BioMedical Applications of California, Inc.

043129981

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

13

BioMedical Applications of Camarillo, Inc.

042957737

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

14

BioMedical Applications of Carolina, Inc.

042696241

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

15

BioMedical Applications of Clinton, Inc.

043112273

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

16

BioMedical Applications of Columbia Heights, Inc.

042583382

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

17

BioMedical Applications of Connecticut, Inc.

042990950

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

18

BioMedical Applications of Delaware, Inc.

043183720

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

19

BioMedical Applications of Dover, Inc.

042944525

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

20

BioMedical Applications of Eureka, Inc.

042652260

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

21

BioMedical Applications of Fayetteville, Inc.

042944524

Fresenius Medical Care

920 Winter St

Waltham

MA

02451

22

BioMedical Applications of Florida, Inc.

112226338

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

23

BioMedical Applications of Fremont, Inc.

043033477

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

24

BioMedical Applications of Fresno, Inc.

043017372

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

25

BioMedical Applications of Georgia, Inc.

042832065

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

26

BioMedical Applications of Guayama, Inc.

042963519

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

27

BioMedical Applications of Humacao, Inc.

043039570

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

28

BioMedical Applications of Illinois, Inc.

042560009

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

29

BioMedical Applications of Indiana, Inc.

042969825

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

30

BioMedical Applications of Kansas, Inc.

043291316

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

31

BioMedical Applications of Kentucky, Inc.

042546968

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

32

BioMedical Applications of Los Gatos, Inc.

043033478

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

33

BioMedical Applications of Louisiana, LLC

042508242

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

34

BioMedical Applications of Maine, Inc.

042508244

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

35

BioMedical Applications of Manchester, Inc.

042969816

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

36

BioMedical Applications of Maryland, Inc.

042553140

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

37

BioMedical Applications of Massachusetts, Inc.

043088660

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

38

BioMedical Applications of Mayaguez, Inc.

042594769

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

39

BioMedical Applications of Michigan, Inc.

042516906

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

1


2


EXHIBIT I

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

LOCATION OF RECORDS

Number

Name

TAX ID

Billing Group Name1

Addr1

City1

ST1

Zip1

40

BioMedical Applications of Minnesota, Inc.

043376339

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

41

BioMedical Applications of Mississippi, Inc.

043108559

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

42

BioMedical Applications of Missouri, Inc.

042975268

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

43

BioMedical Applications of New Hampshire, Inc.

042944527

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

44

BioMedical Applications of New Jersey, Inc.

043106961

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

45

BioMedical Applications of New Mexico, Inc.

042520837

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

46

BioMedical Applications of North Carolina, Inc.

043085674

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

47

BioMedical Applications of Northeast D.C., Inc.

042832070

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

48

BioMedical Applications of Ohio, Inc.

043110360

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

49

BioMedical Applications of Oklahoma, Inc.

043017363

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

50

BioMedical Applications of Pennsylvania, Inc.

042466383

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

51

BioMedical Applications of Ponce, Inc.

042521638

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

52

BioMedical Applications of Puerto Rico, Inc.

043167416

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

53

BioMedical Applications of Rhode Island, Inc.

042489760

Fresenius Medical Care

920 Winter St

Waltham

MA

02451

54

BioMedical Applications of Rio Piedras, Inc.

042968308

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

55

BioMedical Applications of San German, Inc.

042740117

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

56

BioMedical Applications of San Juan, Inc.

042520840

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

57

BioMedical Applications of South Carolina, Inc.

042944532

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

58

BioMedical Applications of Southeast Washington, Inc.

042633086

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

59

BioMedical Applications of Tennessee, Inc.

043074770

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

60

BioMedical Applications of Texas, Inc.

112226275

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

61

BioMedical Applications of the District of Columbia, Inc.

042558118

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

62

BioMedical Applications of Virginia, Inc.

043054876

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

63

BioMedical Applications of West Virginia, Inc.

042894956

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

64

BioMedical Applications of Wisconsin, Inc.

042539147

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

65

BioMedical Applications of Wyoming, LLC

043809723

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

66

Brevard County Dialysis, LLC

200250202

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

67

Clayton County Dialysis, LLC

582350026

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

68

Clermont Dialysis Center, LLC

593733739

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

69

College Park Dialysis, LLC

562293442

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

70

Columbus Area Renal Alliance, LLC

311799562

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

71

Conejo Valley Dialysis, Inc.

953249390

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

72

Dialysis America Georgia, LLC

043441506

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

73

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

223547454

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

74

Dialysis Centers of America Illinois, Inc.

371341578

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

75

Dialysis Management Corporation

742596786

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

76

Dialysis Services of Atlanta, Inc.

581819764

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

77

Dialysis Services of Cincinnati, Inc.

311374389

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

78

Dialysis Specialists of Marietta, Ltd.

311484219

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

3


EXHIBIT I

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

LOCATION OF RECORDS

Number

Name

TAX ID

Billing Group Name1

Addr1

City1

ST1

Zip1

79

Dialysis Specialists of Topeka, Inc.

481178898

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

80

Douglas County Dialysis, LLC

593663253

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

81

Du Page Dialysis, Ltd.

363029873

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

82

Everest Healthcare Holdings, Inc.

043540082

Fresenius Medical Care

920 Winter St

Waltham

MA

02451

83

Everest Healthcare Indiana, Inc.

363575844

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

84

Everest Healthcare Ohio, Inc.

311418495

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

85

Everest Healthcare Rhode Island, Inc.

364403091

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

86

Everest Healthcare Texas, L.P.

364321507

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

87

FMS Delaware Dialysis, LLC

261536796

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

88

FMS Philadelphia Dialysis, LLC

311800532

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

89

Fondren Dialysis Clinic, Inc.

760149309

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

90

Fort Scott Regional Dialysis Center, Inc.

431474377

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

91

Four State Regional Dialysis Center, Inc.

431331335

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

93

Fresenius Kidney Care Guam, LLC

842155656

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

93

Fresenius Kidney Care Pittsburgh, LLC

262521636

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

94

Fresenius Management Services, Inc.

042733764

Fresenius Medical Care

920 Winter St

Waltham

MA

02451

95

Fresenius Medical Care South Texas Kidney, LLC

260857967

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

96

Fresenius Medical Care Dialysis Services Oregon, LLC

931175031

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

97

Fresenius Medical Care Dialysis Services Colorado LLC

043447327

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

98

Fresenius Medical Care Harston Hall, LLC

264216027

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

99

Fresenius Medical Care Holdings, Inc.

133461988

Fresenius Medical Care

920 Winter St

Waltham

MA

02451

100

Fresenius Medical Care of Illinois, LLC

562296990

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

101

Fresenius Medical Care of Montana, LLC

274604304

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

102

Fresenius Medical Care Ventures, LLC

223948765

Fresenius Medical Care

920 Winter St

Waltham

MA

02451

103

Fresenius Medical CareOSUIM Kidney Centers, LLC

432117045

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

104

Fresenius USA Manufacturing, Inc.

043475979

Fresenius Medical Care

920 Winter St

Waltham

MA

02451

105

Fresenius USA Marketing, Inc.

043477762

Fresenius Medical Care

920 Winter St

Waltham

MA

02451

106

Fresenius USA, Inc.

042550576

Fresenius Medical Care

920 Winter St

Waltham

MA

02451

107

Gulf Region Mobile Dialysis, Inc.

042938292

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

108

HaemoStat, Inc.

953529889

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

109

Hauppauge Dialysis Center, LLC

473940345

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

110

Henry Dialysis Center, LLC

582415318

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

111

Holton Dialysis Clinic, LLC

582449454

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

112

Home Dialysis of Muhlenberg County, Inc.

611262466

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

113

Homestead Artificial Kidney Center, Inc.

592263441

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

114

Inland Northwest Renal Care Group, LLC

912069412

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

115

Jefferson County Dialysis, Inc.

710728066

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

116

KDCO, Inc.

431796126

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

117

Kentucky Renal Care Group, LLC

364494425

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

4


EXHIBIT I

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

LOCATION OF RECORDS

Number

Name

TAX ID

Billing Group Name1

Addr1

City1

ST1

Zip1

118

Little Rock Dialysis, Inc.

710672705

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

119

Maumee Dialysis Services, LLC

352137387

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

120

Metro Dialysis Center Normandy, Inc.

431585199

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

121

Metro Dialysis Center North, Inc.

431227361

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

122

National Medical Care, Inc.

042835488

Fresenius Medical Care

920 Winter St

Waltham

MA

02451

123

National Nephrology Associates of Texas, L.P.

742928010

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

124

New York Dialysis Services, Inc.

043267217

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

125

NNA of Alabama, Inc.

631223468

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

126

NNA of East Orange, L.L.C.

223749910

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

127

NNA of Georgia, Inc.

621765493

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

128

NNA of Harrison, L.L.C.

223730892

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

129

NNA of Louisiana, LLC

621848891

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

130

NNA of Oklahoma, Inc.

621842289

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

131

NNA of Oklahoma, L.L.C.

731574780

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

132

NNA of Rhode Island, Inc.

050513853

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

133

NNA of Toledo, Inc.

341938916

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

134

NNASaint Barnabas, L.L.C.

141851729

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

135

NNASaint BarnabasLivingston, L.L.C.

743070647

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

136

Northern New Jersey Dialysis, L.L.C.

364291598

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

137

NRAAda, Oklahoma, LLC

203918366

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

138

NRAAugusta, Georgia, LLC

201773433

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

139

NRABamberg, South Carolina, LLC

721554958

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

140

NRACrossville, Tennessee, LLC

200211899

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

141

NRAFarmington, Missouri, LLC

204545164

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

142

NRAGeorgetown, Kentucky, LLC

205424005

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

143

NRAHogansville, Georgia, LLC

203169182

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

144

NRAHolly Hill, South Carolina, LLC

721555507

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

145

NRAHollywood, South Carolina, LLC

202902860

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

146

NRAInpatient Dialysis, LLC

830338286

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

147

NRALaGrange, Georgia, LLC

260185821

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

148

NRAMt. Pleasant, South Carolina, LLC

200838706

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

149

NRANew Castle, Indiana, LLC

205987299

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

150

NRANewnan Acquisition, LLC

680523317

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

151

NRAOrangeburg, South Carolina, LLC

432005251

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

152

NRAPalmetto, Georgia, LLC

260185501

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

153

NRAPrinceton, Kentucky, LLC

450468127

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

154

NRARoanoke, Alabama, LLC

330997565

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

155

NRASouth City, Missouri, LLC

202902550

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

156

NRASt. Louis (Home Therapy Center), Missouri, LLC

205424146

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

5


EXHIBIT I

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

LOCATION OF RECORDS

Number

Name

TAX ID

Billing Group Name1

Addr1

City1

ST1

Zip1

157

NRASt. Louis, Missouri, LLC

202902075

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

158

NRATalladega, Alabama, LLC

200168987

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

159

NRAValdosta (North), Georgia, LLC

260185895

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

160

NRAValdosta, Georgia, LLC

205056226

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

161

NRAWashington County, Missouri, LLC

204718634

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

162

NRAWinchester, Indiana, LLC

205987315

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

163

QualiCenters Albany, Ltd.

841177951

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

164

QualiCenters Bend, LLC

841306505

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

165

QualiCenters Coos Bay, Ltd.

931116623

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

166

QualiCenters EugeneSpringfield Ltd.

841200211

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

167

QualiCenters Inland Northwest LLC

841300520

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

168

QualiCenters Pueblo LLC

841278890

TYLER BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

169

QualiCenters Salem, LLC

841278891

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

170

RAI Care Centers of Alabama, LLC

272780983

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

171

RAI Care Centers of Florida I, LLC

203275837

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

172

RAI Care Centers of Florida II, LLC

203276388

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

173

RAI Care Centers of Georgia I, LLC

264422073

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

174

RAI Care Centers of Illinois I, LLC

203424989

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

175

RAI Care Centers of Illinois II, LLC

203276495

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

176

RAI Care Centers of Maryland I, LLC

203275966

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

177

RAI Care Centers of Michigan I, LLC

203275900

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

178

RAI Care Centers of Michigan II, LLC

203276543

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

179

RAI Care Centers of Nebraska II, LLC

203276452

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

180

RAI Care Centers of North Carolina II, LLC

203276272

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

181

RAI Care Centers of Northern California I, LLC

203273722

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

182

RAI Care Centers of Northern California II, LLC

203276168

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

183

RAI Care Centers of Oakland II, LLC

260703939

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

184

RAI Care Centers of South Carolina I, LLC

203275735

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

185

RAI Care Centers of Southern California I, LLC

203275222

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

186

RAI Care Centers of Southern California II, LLC

203276225

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

187

RAI Care Centers of Virginia I, LLC

203276076

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

188

RCG Bloomington, LLC

352161251

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

189

RCG East Texas, LLP

432012785

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

190

RCG Indiana, L.L.C.

621674489

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

191

RCG Irving, LLP

680564355

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

192

RCG Martin, LLC

621727016

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

193

RCG Memphis East, LLC

621857812

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

194

RCG Mississippi, Inc.

621628022

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

195

RCG Pensacola, LLC

900123132

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

6


EXHIBIT I

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

LOCATION OF RECORDS

Number

Name

TAX ID

Billing Group Name1

Addr1

City1

ST1

Zip1

196

RCG Robstown, LLP

460514571

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

197

RCG University Division, Inc.

621555316

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

230

Reliant Renal Care Lapeer Home Choice, LLC

371739038

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

231

Renal Care Group, Inc.

621622383

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

200

Renal Care Group Alaska, Inc.

920166049

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

201

Renal Care Group East, Inc.

231906900

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

202

Renal Care Group Maplewood, LLC

010854887

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

203

Renal Care Group Northwest, Inc.

931236337

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

204

Renal Care Group of the Midwest, Inc.

480828924

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

205

Renal Care Group of the Ozarks, LLC

050592312

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

206

Renal Care Group of the Rockies, LLC

841596186

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

207

Renal Care Group of the South, Inc.

680594301

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

208

Renal Care Group of the Southeast, Inc.

592851389

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

209

Renal Care Group South New Mexico, LLC

742979806

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

210

Renal Care Group Southwest Michigan, LLC

364525442

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

211

Renal Care Group Southwest, L.P.

860960418

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

212

Renal Care Group Terre Haute, LLC

810614774

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

213

Renal Care Group Texas, Inc.

751739434

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

214

Renal Care Group Toledo, LLC

161748061

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

215

Renal Care GroupHarlingen, L.P.

742967993

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

222

RenalPartners, Inc.

721365907

Intentionally Blank

217

Renex Dialysis Clinic of Bloomfield, Inc.

223572775

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

218

Renex Dialysis Clinic of Bridgeton, Inc.

431717348

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

219

Renex Dialysis Clinic of Creve Coeur, Inc.

431690517

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

220

Renex Dialysis Clinic of Maplewood, Inc.

431804718

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

221

Renex Dialysis Clinic of Orange, Inc.

223461798

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

222

Renex Dialysis Clinic of Pittsburgh, Inc.

251732278

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

223

Renex Dialysis Clinic of South Georgia, Inc.

582383123

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

224

Renex Dialysis Clinic of St. Louis, Inc.

431856441

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

225

Renex Dialysis Clinic of University City, Inc.

431655681

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

226

Renex Dialysis Facilities, Inc.

640798295

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

227

Saint Louis Renal Care, LLC

621648323

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

228

San Diego Dialysis Services, Inc.

042487762

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

229

Santa Barbara Community Dialysis Center, Inc.

952814241

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

230

Smyrna Dialysis Center, LLC

113696702

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

231

SSKG, Inc.

364085833

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

232

St. Louis Regional Dialysis Center, Inc.

621084258

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

233

STAT Dialysis Corporation

742775421

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

234

Stone Mountain Dialysis Center, LLC

582638661

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

7


EXHIBIT I

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

LOCATION OF RECORDS

Number

Name

TAX ID

Billing Group Name1

Addr1

City1

ST1

Zip1

235

Stuttgart Dialysis, LLC

710779483

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

236

Tappahannock Dialysis Center, Inc.

541355720

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

237

Terrell Dialysis Center, L.L.C.

364247457

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

238

Warrenton Dialysis Facility, Inc.

541136812

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

239

West End Dialysis Center, Inc.

541341030

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

240

WSKC Dialysis Services, Inc.

362668594

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

8


EXHIBIT J

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

FORM OF BUSINESS ASSOCIATE AGREEMENT

[Attached]


EXHIBIT J-1

Form of Business Associate Agreement – For use when Covered Entities include FMCNA

entities or FMCNA is engaging a subcontractor


HIPAA BUSINESS ASSOCIATE AGREEMENT

This HIPAA Business Associate Agreement (“BAA”) is entered into by and between Fresenius Medical Care Holdings, Inc. d/b/a Fresenius Medical Care North America, together with its subsidiaries, affiliates, and divisions (for purposes of this BAA, “Company”), for the benefit of any Covered Entity to which Company creates, receives, maintains, transmits, uses or discloses PHI on behalf of, and [           ], (the “Business Associate”), and is effective as of [         ] (the “BAA Effective Date”). Company and Business Associate may be individually referred to as a “Party” and, collectively, as “Parties” in this BAA. Capitalized terms used in this BAA and not otherwise defined herein shall have the meanings set forth in HIPAA (as defined herein), which definitions are incorporated in this BAA by reference.

RECITALS

A.

The Parties intend to protect the privacy and provide for the security of Protected Health Information (“PHI”) and, to the extent applicable, other medical, health or personal information disclosed to or created in accordance with this BAA or any other agreement between the Parties in which Business Associate provides services requiring the Parties to enter into this BAA to be in compliance with: (i) the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act, and their implementing regulations, as amended (collectively “HIPAA”); and (ii) other federal or state laws governing medical, health or personal information to the extent applicable (“Other Applicable Law”).

B.

Company and Business Associate are parties to, or considering entering into, a business relationship under which Business Associate will create, receive, maintain, transmit, use or disclose PHI on behalf of Company in connection with certain functions, activities, and services that Business Associate performs for Company which requires the Parties to enter into this BAA in order to satisfy certain standards and requirements of HIPAA and Other Applicable Law, which includes [briefly describe the services Business Associate provides or will provide, such as data analytics] (the “Services Arrangement(s)”).

C.

The Parties desire to enter into this BAA in order to satisfy certain standards and requirements of HIPAA and Other Applicable Law governing medical, health or personal information.

In consideration of the mutual promises below and the exchange of information pursuant to this BAA, the Parties agree as follows:

1. PERMITTED USES AND DISCLOSURES OF PHI BY BUSINESS ASSOCIATE.

Except as otherwise limited in this BAA, Business Associate may use or disclose PHI for, or on behalf of, Company to perform its obligations under the Services Arrangement(s), provided that such use or disclosure would not violate the Privacy Rule if done by Company. To the extent Business Associate is carrying out one or more of Company’s obligations under the Privacy Rule, Business Associate shall comply with the requirements of the Privacy Rule that apply to Company

Page 1 of 9


in the performance of such obligation(s). Without limiting the generality of the foregoing, Business Associate is permitted to use or disclose PHI as set forth below:

a.Business Associate may use PHI internally for Business Associate’s proper management and administration or to carry out its legal responsibilities.

b.Business Associate may disclose PHI to a third party for Business Associate’s proper management and administration, provided that the disclosure is Required by Law or Business Associate obtains reasonable assurances from the third party to whom the PHI is to be disclosed that the third party will (i) protect the confidentiality of the PHI, (ii) only use or further disclose the PHI as Required by Law or for the purpose for which the PHI was disclosed to the third party and (iii) notify Company of any instances of which the third party is aware in which the confidentiality of the PHI has been breached.

c.Business Associate may use PHI to provide Data Aggregation services for Company’s Health Care Operations purposes.

d.Business Associate may not use PHI to create and use de-identified health information without the prior written consent of Company.

2.

OBLIGATIONS OF BUSINESS ASSOCIATE.

a.Appropriate Safeguards. Business Associate shall use appropriate safeguards to prevent the use or disclosure of PHI other than as permitted or required by this BAA. In addition, Business Associate shall implement Administrative Safeguards, Physical Safeguards and Technical Safeguards that reasonably and appropriately protect the Confidentiality, Integrity and Availability of PHI transmitted or maintained in Electronic Media that it creates, receives, maintains or transmits on behalf of Company. Business Associate shall comply with the Security Rule with respect to Electronic PHI.

b.Subcontractor Business Associates. Business Associate shall enter into a written agreement meeting the requirements of 45 C.F.R. §§ 164.504(e) and 164.314(a)(2) with each Subcontractor (including, without limitation, a Subcontractor that is an agent under applicable law) that creates, receives, maintains or transmits PHI in accordance with this BAA. Business Associate shall ensure that the written agreement with each Subcontractor obligates the Subcontractor to comply with restrictions and conditions that are at least as restrictive as the restrictions and conditions that apply to Business Associate under this BAA.

c.

Individual Rights.

i.Access to PHI. Within five (5) business days of a request by Company for access to PHI about an Individual contained in any Designated Record Set maintained by Business Associate, Business Associate shall make available to Company, or at Company’s request to an Individual, such PHI for so long as Business Associate maintains such information in the Designated Record Set. If Business Associate receives a request for access to PHI directly from

Page 2 of 9


an Individual, Business Associate shall forward such request to Company within five (5) business days.

ii.Amendment of PHI. Within five (5) business days of receipt of a request from Company for the amendment of an Individual’s PHI contained in any Designated Record Set of Company maintained by Business Associate, Business Associate shall provide such information to Company for amendment and incorporate any such amendments in the PHI (for so long as Business Associate maintains such information in the Designated Record Set) as required by 45

C.F.R. § 164.526. If Business Associate receives a request for amendment to PHI directly from an Individual, Business Associate shall forward such request to Company within five (5) business days.

iii.Accounting of Disclosures. Within five (5) business days of notice by Company to Business Associate that it has received a request for an accounting of disclosures of PHI (other than disclosures to which an exception to the accounting requirement applies), Business Associate shall make available to Company such information as is in Business Associate’s possession and is required for Company to make the accounting required by 45 C.F.R. § 164.528. If Business Associate receives a request for an accounting directly from an Individual, Business Associate shall forward such request to Company within five (5) business days.

d. Governmental Access to Records. Business Associate shall make its internal practices, books and records relating to the use and disclosure of PHI received from, or created or received by Business Associate on behalf of, Company in accordance with this BAA available to the Secretary and, at the request of Company, to Company, for purposes of the Secretary determining compliance with HIPAA.

e.Mitigation. Business Associate shall mitigate, to the greatest extent practicable, any harmful effect of a use or disclosure of PHI by Business Associate or its agents or Subcontractors in violation of this BAA or HIPAA.

f.Minimum Necessary. Business Associate shall request, use and disclose the minimum amount of PHI necessary to accomplish the intended purpose of the request, use or disclosure, in accordance with 45 C.F.R. § 164.514(d), and any amendments thereto.

g.Reporting of Improper Use or Disclosure, Breach or Security Incident.

i.Business Associate shall, without unreasonable delay, but in no event later than forty-eight (48) hours after becoming aware of any acquisition, access, use, or disclosure of PHI in violation of this BAA by Business Associate, its employees, its agents, its Subcontractors or any other third party to which Business Associate disclosed PHI (each, an “Unauthorized Use or Disclosure”), report such Unauthorized Use or Disclosure to Company in writing.

ii.Business Associate shall, without unreasonable delay, but in no event later than forty-eight (48) hours after becoming aware of any Security Incident, report it to Company in writing.

Page 3 of 9


iii.Business Associate shall, without unreasonable delay, but in no event later than forty-eight (48) hours after discovery of a potential Breach of PHI (whether secure or unsecured), report such Breach to Company in accordance with 45 C.F.R. § 164.410. This obligation to report a potential Breach shall apply regardless of whether or not the Business Associate has demonstrated that there is a low probability that the PHI has been compromised based on a risk assessment conducted in accordance with 45 C.F.R. § 164.402. Business Associate shall include with its notification to Company of a potential Breach a copy of Business Associate’s risk assessment. Business Associate shall deliver the initial notification of such Breach, in writing, which must include a reasonably detailed description of the Breach and the steps Business Associate is taking, and would propose, to mitigate or terminate the Breach. Furthermore, Business Associate shall supplement the initial notification, no more than ten (10) days following discovery (or following the date additional information becomes reasonably available to Business Associate), with information including: (i) the identification of each individual whose PHI was or is believed to have been involved; (ii) a reasonably detailed description of the types of PHI involved; (iii) all other information reasonably requested by Company, including all information necessary to enable Company to perform and document a risk assessment in accordance with 45 CFR Part 164 subpart D; and (iv) all other information necessary for Company to provide notice to individuals, the U.S. Department of Health and Human Services (“HHS”) or the media, if required. An initial notification to Company shall not be delayed because Business Associate has not confirmed a Breach, has not completed an investigation, or does not have all the information needed to provide a complete report. Business Associate shall also notify Company, in writing, within the timeframes and in the manner outlined in this BAA, of any use or disclosure of PHI by its Subcontractors (or Subcontractors’ agent(s)) not provided for by this BAA.

h. Security of Information Protected Under Other Applicable Laws. To the extent that Business Associate receives, stores, maintains, processes or otherwise is permitted access to “personal information” (as such term is defined by Other Applicable Laws) or other sensitive information that is subject to Other Applicable Laws, Business Associate shall maintain appropriate security measures to protect such information consistent with the applicable requirements of Other Applicable Laws.

i.Responsibility for Costs Associated with Improper Use or Disclosure, Breach or Security Incident. Business Associate shall be responsible for, and shall reimburse Company for all costs and expenses associated with steps reasonably implemented by Company to mitigate any Breach, Unauthorized Use or Disclosure, and/or Security Incident of PHI and/or information protected by Other Applicable Law, including, without limitation, the following: (i) data analysis to determine appropriate mitigation steps in the event of Breach, including assistance from Business Associate in the investigation of Breach, reasonable access to information collected by the Business Associate, and, if necessary and mutually agreed by the parties, reasonable access to the Business Associate’s systems for purposes of Breach data analysis; (ii) preparation and mailing of notification(s) about a Breach to impacted individuals, the media and regulators; (iii) costs associated with proper handling of inquiries from individuals and other entities about a Breach (such as the establishment of toll-free numbers, maintenance of call centers for intake, preparation of scripts, questions/answers, and other communicative information about the Breach); (iv) credit

Page 4 of 9


monitoring and account monitoring services for impacted individuals for a reasonable period (which shall be no less than 12 months, unless a longer period is mandated by Other Applicable Law in which case such mandated period shall be used); (v) other mitigation action steps required of Company by federal or state regulators; and (vi) other reasonable mitigation steps required by Company. Any limitation of liability or damages or similar provisions in any agreement(s) for the Services Arrangement(s) shall have no effect on Business Associate’s obligations under this Section 2.i. This Section 2.i shall survive the expiration or earlier termination of this BAA.

j.Indemnification. Business Associate shall reimburse, indemnify and hold harmless Company for all costs, expenses (including reasonable attorneys’ fees), damages and other losses resulting from any breach of this BAA by Business Associate or Business Associate’s agent(s) or Subcontractors, including, without limitation, any fines or settlement amounts owed to a state or federal government agency, and any third party claims. Any limitation of liability or damages or similar provisions in any agreement(s) for the Services Arrangement(s) shall have no effect on Business Associate’s obligations under this Section 2.j. This Section 2.j shall survive the expiration or earlier termination of this BAA.

k.Insurance. Business Associate shall maintain the following types of insurance coverage: (i) Commercial General Liability insurance with limits no less than $1,000,000 per occurrence and $3,000,000 in the aggregate, and (ii) Cyber Liability coverage with limits of not less than $10,000,000 per claim and in the aggregate, including protection of private or confidential information, whether electronic or non-electronic; network security and privacy liability; protection against liability for system attacks; denial or loss of service; introduction, implantation or spread of malicious software code; security breach; unauthorized access and use, including regulatory action expenses; cyber extortion coverage; and investigation, notification, and credit monitoring expenses. Business Associate shall add Company as an additional insured on the insurance policies. Upon request by Company, Business Associate shall provide Company with certificates of insurance that evidence the insurance required to be maintained under this section.

l.Massachusetts Security of Personal Information. To the extent that Business Associate receives, stores, maintains, processes or otherwise is permitted access to "personal information," as such term is defined in 201 Code of Massachusetts Regulations ("CMR") 17.02 , Business Associate shall: (1) maintain appropriate security measures to protect such personal information consistent with the standards set forth in 201 CMR 17.01-05 (the "Massachusetts Security Regulations"); and (2) develop, implement and maintain a comprehensive written information security program that includes administrative, technical and physical safeguards that

(i)satisfy the requirements of the Massachusetts Security Regulations and (ii) are consistent with the safeguards applicable to Company with respect to protecting PHI pursuant to HIPAA, the HITECH Act and regulations promulgated thereunder.

3.

TERM AND TERMINATION.

a.Term. The term of this BAA shall commence as of the BAA Effective Date, and shall terminate when (i) Company terminates this BAA as authorized below in Section 3.b., or (ii) all of the PHI provided, created or received in accordance with this BAA is destroyed or returned

Page 5 of 9


to Company or, if it is infeasible to return or destroy PHI, protections are extended to such information, in accordance with Section 3.c. The destruction of PHI shall occur as soon as reasonably practical, but no more than thirty (30) days from the effective date of termination, and Business Associate must certify in writing that such destruction has taken place.

b.Termination for Cause. Upon Company’s knowledge of a material breach by Business Associate of this BAA, Company shall either (i) provide an opportunity for Business Associate to cure the breach or end the violation within the time specified by Company, or, (ii) at the sole discretion of Company, immediately terminate this BAA and the Services Agreement(s) if cure is not possible.

c.

Effect of Termination.

i.Except as provided in paragraph ii. of this Section 3.c., upon termination of this BAA, Business Associate shall return or destroy all PHI received from Company, or created or received by Business Associate on behalf of Company, and shall retain no copies of the PHI. This provision shall also apply to PHI that is in the possession of Business Associate’s Subcontractors or agents.

ii.In the event that Business Associate determines that returning or destroying PHI is infeasible, Business Associate shall provide to Company notification of the conditions that make return or destruction infeasible. Upon mutual agreement of the Parties that return or destruction of PHI is infeasible, Business Associate shall extend the protections of this BAA to such PHI and limit further uses and disclosures of such PHI to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such PHI. If Company does not agree that return or destruction of such PHI is infeasible, then Business Associate shall return or destroy such PHI in accordance with Section 3.a. of this BAA.

4.

COOPERATION IN INVESTIGATIONS.

In addition to any damages recoverable under this BAA, the Parties acknowledge that certain breaches or violations of this BAA may result in litigation or investigations pursued by federal or state governmental authorities of the United States resulting in civil liability or criminal penalties. Each Party shall cooperate in good faith in all respects with the other Party in connection with any request by a federal or state governmental authority for additional information and documents or any governmental investigation, complaint, action or other inquiry.

5.

MISCELLANEOUS PROVISIONS.

a.Regulatory References. A reference in this BAA to a section in HIPAA means the section as in effect or as amended, and for which Company’s and/or Business Associate’s compliance is required. For the avoidance of doubt, terms used and obligations described in this BAA, in order to comply with HIPAA, or any Other Applicable Law protecting the confidentiality or security of medical, health or personal information, shall be automatically amended if new or

Page 6 of 9


revised definitions or interpretations of such terms or obligations are amended by statute, final rule, or HHS guidance.

b.Amendment. The Parties agree to take such action to amend this BAA from time to time as is necessary for Company to comply with the requirements of HIPAA or any Other Applicable Law protecting the confidentiality or security of medical, health or personal information. Notwithstanding the foregoing, in the event that new federal or state law, regulations, or guidance affects, clarifies, amends, or extends the obligations of the Parties hereunder, the Parties understand and agree that such changes or clarifications in law or interpretation of legal requirements applicable to covered entities and/or business associates shall be deemed to apply to the obligations of the Parties described in this BAA without requiring any amendment to this BAA or any other agreements for the Services Arrangement(s) between the Parties. If Company determines that a written notice or amendment is necessary or useful, such notice or amendment shall become effective fourteen (14) days after receipt by Business Associate unless Business Associate submits a written objection to such notice or amendment to Company prior to the expiration of such fourteen-(14-) day period.

c.Survival. The respective rights and obligations of Business Associate under Sections 2.i., 2.j, and 3.c. of this BAA survive the termination of this BAA.

d.No Third Party Beneficiaries. Nothing express or implied in this BAA is intended to or does confer any rights, remedies, obligations or liabilities upon any person other than Company, including any Covered Entity to which Company provides services under a business associate arrangement as applicable, Business Associate and their respective present and future affiliates, successors or assigns.

e.Interpretation. With respect to PHI that Business Associate receives from or on behalf of Company, the provisions of this BAA shall prevail over any provisions in another agreement between the Parties that may conflict or appear inconsistent with any provision in this BAA. Any ambiguity in this BAA shall be resolved in favor of a meaning that permits Company and Business Associate to comply with HIPAA and any Other Applicable Law protecting the confidentiality or security of medical, health or personal information.

f.Independent Contractor. Company and Business Associate acknowledge and agree that Business Associate is at all times acting as an independent contractor of Company under this BAA and not as an employee, agent, partner or joint venturer of Company.

g.Counterparts. This BAA may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument and shall become effective when one or more counterparts have been signed by each or the Parties and delivered to the other Party. Facsimile, PDF or other electronic signatures to this BAA shall have the same force and effect as manually signed original signatures for purposes of execution and proof of this BAA.

Page 7 of 9


h.Shared Values. As stated in the Fresenius Medical Care Code of Ethics and Business Conduct, Company upholds the values of integrity and lawful conduct, especially with regard to anti-bribery and anti-corruption. Company upholds these values in its own operations, as well as in its relationships with business partners. Company’s continued success and reputation depends on a common commitment to act accordingly. Together with Company, Business Associate is committed to uphold these fundamental values by adherence to applicable laws and regulations.

i.Assignment. This BAA shall be binding on the successors and permitted assigns of the Parties. Business Associate shall not assign this BAA or any of their rights hereunder without Company’s prior written consent, which may be withheld in Company’s sole discretion. Company may assign this BAA to any of Company’s affiliates or to any successor in interest to the assets and operations of Company without the consent of Business Associate. This BAA shall be enforceable by or against any permitted assigns hereunder. Any attempted assignment of this BAA in violation of the provisions of this section is void.

j.Notices. Except for Business Associate’s reporting obligations pursuant to section 2(g), all notices pursuant to this BAA shall be in writing and shall be deemed duly given and properly served to a Party at the address as set forth below: (a) when delivered personally with written confirmation of receipt, (b) three (3) business days after being mailed to the addressee by registered or certified mail, postage prepaid, return receipt requested, or (c) when received by the addressee if sent by a recognized express delivery service. With respect to Business Associate’s reporting obligations pursuant to section 2(g), email notice must be sent to Privacy@fmc-na.com in addition to physical notice as described herein.

Notice to Company:

Fresenius Medical Care Holdings, Inc.

920 Winter St.

Waltham, MA 02451

Attn: Privacy Officer

With a copy to:

Fresenius Medical Care Holdings, Inc.

920 Winter St.

Waltham, MA 02451

Attn: Legal Department

Notice to Business Associate:

[Signature page follows]

Page 8 of 9


IN WITNESS WHEREOF, the Parties hereto have duly executed this BAA as of the BAA Effective Date.

    

FRESENIUS MEDICAL CARE HOLDINGS, INC.

By:

By:

Print Name:

Print Name:

Title:

Title:

Date:

Date:

Page 9 of 9


EXHIBIT J-2

Form of Business Associate Agreement – For use when FMCNA is a Business Associate and not a Covered Entity


BUSINESS ASSOCIATE AGREEMENT

This BUSINESS ASSOCIATE AGREEMENT (this “BA Agreement”) is entered into by and between Fresenius Medical Care Holdings, Inc. d/b/a Fresenius Medical Care North America, together with its subsidiaries, affiliates, and divisions (collectively, “FMCNA” or “Business Associate”) and [                           ] (“Company”), and is effective as of [                            ] (the “BAA Effective Date”). Company and Business Associate may be individually referred to as a “Party” and, collectively, as “Parties” in this BA Agreement. Capitalized terms used in this BA Agreement without definition shall have the respective meanings assigned to such terms in the Administrative Simplification section of the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act and their implementing regulations as amended from time to time (collectively, “HIPAA”).

RECITALS

WHEREAS, Company either is a Covered Entity that wishes to engage Business Associate as its business associate, or Company is a business associate to one or more Covered Entities and wishes to engage Business Associate as a subcontractor business associate, as applicable; and

WHEREAS, the Parties have entered, or are considering entering into, a business relationship under which Business Associate shall perform services, including [briefly describe the BA services Fresenius entity provides or will provide, such as data analytics] (“Services”). Business Associate’s provision of these services may require Business Associate to receive, maintain, create or transmit Protected Health Information on behalf of Covered Entity; and

WHEREAS, the Parties desire to enter into this BA Agreement in order to satisfy certain standards and requirements of HIPAA.

NOW THEREFORE, in consideration of the mutual premises and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

AGREEMENT

I.

GENERAL PROVISIONS

1.1.Effect. The provisions of this BA Agreement shall control with respect to Protected Health Information that Business Associate receives from or on behalf of Company (“PHI”), and the terms and provisions of this BA Agreement shall supersede any conflicting or inconsistent terms and provisions in any other agreement between the Parties relating the Services (if any), including all exhibits or other attachments thereto and all documents incorporated therein by reference, to the extent of such conflict or inconsistency. This BA Agreement shall not modify or supersede any other provision of any such agreement.

1.2.No Third Party Beneficiaries. The parties have not created and do not intend to create by this BA Agreement any third party rights, including, but not limited to, third party rights for patients whose Protected Health Information is subject to this BA Agreement.

Page 1 of 6


1.3.HIPAA Amendments. The parties acknowledge and agree that the Health Information Technology for Economic and Clinical Health Act and its implementing regulations impose requirements with respect to privacy, security and breach notification applicable to Business Associates and their Subcontractor Business Associates (collectively, the “HITECH BA Provisions”). The HITECH BA Provisions and any other future amendments to HIPAA affecting Business Associate agreements are hereby incorporated by reference into this BA Agreement as if set forth in this BA Agreement in their entirety, effective on the later of the effective date of this BA Agreement or such subsequent date as may be specified by HIPAA.

1.4.Regulatory References. A reference in this BA Agreement to a section in HIPAA means the section as it may be amended from time-to-time.

1.5.Independent Contractor Status. The parties acknowledge and agree that Business Associate is at all times acting as an independent contractor of Company and not as an agent or employee of Company.

1.6.Shared Values. As stated in the Fresenius Medical Care Code of Ethics and Business Conduct, Business Associate upholds the values of integrity and lawful conduct, especially with regard to anti-bribery and anti-corruption. Business Associate upholds these values in its own operations, as well as in its relationships with business partners. Business Associate’s continued success and reputation depends on a common commitment to act accordingly. Together with Business Associate, the Company is committed to uphold these fundamental values by adherence to applicable laws and regulations.

II.

BUSINESS ASSOCIATE’S OBLIGATIONS

2.1.Use and Disclosure of PHI. Business Associate may use and disclose PHI as permitted or required to perform the Services, as permitted or required under this BA Agreement and as Required by Law, but shall not otherwise use or disclose any PHI. Business Associate shall not use or disclose PHI received in accordance with this BA Agreement in any manner that would constitute a violation of HIPAA. To the extent Business Associate carries out any of Company’s obligations under the HIPAA privacy standards, Business Associate shall comply with the requirements of the HIPAA privacy standards that apply to Company in the performance of such obligations. Business Associate is permitted to use or disclose PHI as set forth below:

a.Business Associate may use PHI internally for its proper management and administrative services or to carry out its legal responsibilities; Business Associate may disclose PHI to a third party for Business Associate’s proper management and administration, provided that the disclosure is Required by Law or Business Associate obtains reasonable assurances from the third party to whom the PHI is to be disclosed that the third party will (1) protect the confidentiality of the PHI, (2) only use or further disclose the PHI as Required by Law or for the purpose for which the PHI was disclosed to the third party and (3) notify Business Associate of any instances of which the third person is aware in which the confidentiality of the PHI has been breached;

b.Business Associate may use PHI to provide Data Aggregation services as defined by HIPAA; and

Page 2 of 6


c.Business Associate may use PHI to create de-identified health information in accordance with the HIPAA de-identification requirements. Business Associate may disclose de-identified health information for any purpose permitted by law.

2.2.Safeguards. Business Associate shall use reasonable and appropriate safeguards to prevent the use or disclosure of PHI, except as otherwise permitted or required by this BA Agreement. In addition, Business Associate shall implement Administrative Safeguards, Physical Safeguards and Technical Safeguards that reasonably and appropriately protect the Confidentiality, Integrity and Availability of PHI transmitted or maintained in Electronic Media (“EPHI”) that it creates, receives, maintains or transmits on behalf of Company. Business Associate shall comply with the HIPAA Security Rule with respect to EPHI.

2.3.Minimum Necessary Standard. To the extent required by the “minimum necessary” requirements of HIPAA, Business Associate shall only request, use and disclose the minimum amount of PHI necessary to accomplish the purpose of the request, use or disclosure.

2.4.Mitigation. Business Associate shall take reasonable steps to mitigate, to the extent practicable, any harmful effect (that is known to Business Associate) of a use or disclosure of PHI by Business Associate in violation of this BA Agreement.

2.5.Subcontractors. Business Associate shall enter into a written agreement meeting the requirements of 45 C.F.R. §§ 164.504(e) and 164.314(a)(2) with each Subcontractor (including, without limitation, a Subcontractor that is an agent under applicable law) that creates, receives, maintains or transmits PHI on behalf of Business Associate. Business Associate shall ensure that the written agreement with each Subcontractor obligates the Subcontractor to comply with restrictions and conditions that are at least as restrictive as the restrictions and conditions that apply to Business Associate under this BA Agreement.

2.6.Reporting Requirements.

a.If Business Associate becomes aware of a use or disclosure of PHI in violation of this BA Agreement by Business Associate or by a third party to which Business Associate disclosed PHI, Business Associate shall report any such use or disclosure to Company without unreasonable delay, and in any event no more than thirty (30) days following discovery of such use or disclosure.

b.Business Associate shall report any actual, successful Security Incident involving EPHI of which it becomes aware without unreasonable delay, and in any event no more than thirty (30) days following discovery of such actual, successful Security Incident. The Parties acknowledge and agree that this Section constitutes notice by Business Associate to Company of the ongoing existence and occurrence of attempted but Unsuccessful Security Incidents (as defined below) for which notice to Company by Business Associate shall be required only upon request. “Unsuccessful Security Incidents” shall include, but not be limited to, pings and other broadcast attacks on Business Associate’s firewall, port scans, unsuccessful log-on attempts, denials of service and any combination of the above, so long as no such incident results in unauthorized access, use or disclosure of PHI. If the HIPAA security regulations are amended to remove the requirement to report unsuccessful attempts at unauthorized access,

Page 3 of 6


the requirement hereunder to report such unsuccessful attempts will no longer apply as of the effective date of the amendment.

c.Business Associate shall, following the discovery of a Breach of Unsecured PHI, notify the Company of such Breach in accordance with 45 C.F.R. § 164.410 without unreasonable delay and in no case later than thirty (30) days after discovery of the Breach.

2.7.Access to PHI. Within fifteen (15) business days of a written request by Company for access to PHI about an Individual contained in any Designated Record Set maintained by Business Associate, if any, Business Associate shall make available to Company such PHI for so long as Business Associate maintains such information in the Designated Record Set. If Business Associate receives a request for access to PHI directly from an Individual, Business Associate shall forward such request to Company within ten (10) business days. The Covered Entity shall have the sole responsibility for determining whether to approve a request for access to PHI.

2.8.Availability of PHI for Amendment. Within fifteen (15) business days of receipt of a written request from Company for the amendment of an Individual’s PHI contained in a Designated Record Set maintained by Business Associate, if any, Business Associate shall provide such information to Company for amendment and incorporate any such amendments in the PHI (for so long as Business Associate maintains such information in the Designated Record Set) as required by 45 C.F.R. § 164.526. If Business Associate receives a request for amendment to PHI directly from an Individual, Business Associate shall forward such request to Company within ten (10) business days. The Covered Entity shall have the sole responsibility for determining whether to approve an amendment to PHI.

2.9.Accounting of Disclosures. Within thirty (30) business days of written notice by Company to Business Associate that it has received a request for an accounting of disclosures of PHI (other than disclosures to which an exception to the accounting requirement applies), Business Associate shall make available to Company such information as is in Business Associate’s possession and is required for Company to make the accounting required by 45 C.F.R. § 164.528. The Covered Entity shall have the sole responsibility for providing an accounting to the Individual.

2.10.Availability of Books and Records. Following reasonable advance written notice, Business Associate shall make its internal practices, books and records relating to the use and disclosure of PHI received from, or created or received by Business Associate on behalf of Company available to the Secretary for purposes of determining compliance with HIPAA.

2.11.Massachusetts Security of Personal Information. To the extent that Business Associate receives, stores, maintains, processes or otherwise is permitted access to "personal information," as such term is defined in 201 Code of Massachusetts Regulations ("CMR") 17.02 ("PI"), Business Associate shall: (1) maintain appropriate security measures to protect such personal information consistent with the standards set forth in 201 CMR 17.01-05 (the "Massachusetts Security Regulations"); and (2) Business Associate shall develop, implement and maintain a comprehensive written information security program that includes administrative, technical and physical safeguards that (i) satisfy the requirements of the Massachusetts Security Regulations and (ii) are consistent with the safeguards applicable to Company with respect to

Page 4 of 6


protecting protected health information ("PHI") pursuant to HIPAA, the HITECH Act and regulations promulgated thereunder.

III.

OBLIGATIONS OF COMPANY

3.1.Permissible Requests. Company shall not request Business Associate to use or disclose PHI in any manner that would not be permissible under HIPAA if done by Company (except as provided in Sections 2.1(a), (b) and (c), as applicable, of this BA Agreement).

3.2.Minimum Necessary PHI. When Company discloses PHI to Business Associate, Company shall provide the minimum amount of PHI necessary for the accomplishment of Business Associate’s purpose.

3.3.Permissions; Restrictions. Company warrants that it has ensured, or will ensure, any consents, authorizations and/or other legal permissions required under HIPAA and other applicable law for the disclosure of PHI to Business Associate. Company shall notify Business Associate of any changes in, or revocation of, the permission by an Individual to use or disclose his or her PHI, to the extent that such changes may affect Business Associate’s use or disclosure of PHI. Company shall provide such notice no later than ten (10) business days prior to the effective date of the change. Company shall not agree to any restriction on the use or disclosure of PHI under 45 CFR § 164.522 that restricts Business Associate’s use or disclosure of PHI under this BA Agreement unless such restriction is Required By Law or Business Associate grants its written consent, which consent shall not be unreasonably withheld.

3.4.Notice of Privacy Practices. Except as Required By Law, with Business Associate’s consent or as set forth in this BA Agreement, Company shall ensure there is no limitation in the applicable notice of privacy practices that limits Business Associate’s use or disclosure of PHI in providing the Services.

IV.

TERMINATION OF THE AGREEMENT

4.1.Termination Upon Breach of Provisions Applicable to PHI. This BA Agreement may be terminated by either Party (the “Non-Breaching Party”) upon thirty (30) days’ written notice to the other party (the “Breaching Party”) in the event that the Breaching Party materially breaches any provision contained in this BA Agreement in any material respect and such breach is not cured within such thirty (30) day period.

4.2.Return or Destruction of PHI upon Termination. Upon termination of this BA Agreement, Business Associate shall return or destroy all PHI created or received in accordance with this BA Agreement, and which Business Associate still maintains as PHI. Notwithstanding the foregoing, to the extent that Business Associate reasonably and in good faith determines that it is not feasible to return or destroy such PHI, the terms and provisions contained herein shall survive termination of this BA Agreement and such PHI shall be used or disclosed solely for such purpose or purposes which prevented the return or destruction of such PHI.

Page 5 of 6


V.

LIMITATION OF LIABILITY

5.1.Limitation of Liability. In no event shall Business Associate’s and its present and former affiliates’, directors’, officers’, employees’, and agents’ aggregate liability arising out of or related to this BA Agreement, whether in contract, tort, or under any other theory of liability, exceed the amounts actually paid by and due from Company for Business Associate’s performance of the Services during the one (1) year period immediately preceding the date the cause of action arose.

5.2.Exclusion of Consequential and Related Damages. In no event shall Business Associate or its present and former affiliates, directors, officers, employees, or agents have any liability to Company or any third party for any lost profits, loss of data, loss of use, costs of procurement of substitute good or services, or for any indirect, special, incidental, punitive, or consequential damages however caused and, whether in contract, tort, or under any other theory of liability whether or not Business Associate has been advised of the possibility of such damage. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, Business Associate’s and its present and former subsidiaries’, affiliates’, directors’, officers’, employees’, and agents’ liability shall be limited to the maximum extent permitted by law.

5.3.Survival. This Section 5 shall survive the expiration or earlier termination of this BA Agreement.

VI.

GENERAL; COUNTERPARTS

This BA Agreement may be executed in two counterparts, each of which shall be deemed an original but both of which together shall constitute one and the same instrument. Copies of signatures sent by facsimile transmission or scanned and sent by email are deemed to be originals for purposes of execution and proof of this BA Agreement. Any action relating to this BA Agreement must be commenced within one (1) year after the date upon which the cause of action accrued. This BA Agreement may be modified, or any rights under it waived, only by a written document executed by the authorized representatives of both Parties. Each Party may assign this BA Agreement to any of its affiliates or to any successor in interest to the assets and operations of such Party.

VII.

NOTICES

All notices pursuant to this BA Agreement shall be in writing and shall be deemed duly given and properly served to a Party at the address as set forth below: (a) when delivered personally with written confirmation of receipt, (b) three (3) business days after being mailed to the addressee by registered or certified mail, postage prepaid, return receipt requested, or (c) when received by the addressee if sent by a recognized express delivery service.

Notice to Business Associate:

Fresenius Medical Care Holdings, Inc.

920 Winter St.

Waltham, MA 02451

Attn: Privacy Officer

Page 6 of 6


With a copy to:

Fresenius Medical Care Holdings, Inc.

920 Winter St.

Waltham, MA 02451

Attn: Legal Department

Notice to Company:

[Signature page follows]

Page 7 of 6


IN WITNESS WHEREOF, the Parties hereto have duly executed this BA Agreement as of the BAA Effective Date.

    

FRESENIUS MEDICAL CARE HOLDINGS, INC.

By:

By:

Print Name:

Print Name:

Title:

Title:

Date:

Date:

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EXHIBIT K

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

[RESERVED]

K-1


EXHIBIT L

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

FORMS OF SECRETARY’S CERTIFICATE

[Attached]

L-1


Certificate of Secretary

I certify that I am the Secretary of NMC Funding Corporation, a Delaware corporation (the Company). I hereby certify as follows:

1.

On the date of this Certificate, the person named in the table below has been duly appointed, is duly qualified as, and is an officer of the Company, and the signature below set forth opposite his name is his genuine signature.

Name

Office

Signature

Mark Fawcett

Treasurer

/s/ Mark Fawcett

2.

Attached as Exhibit A is a true and complete copy of the Company’s Certificate of Incorporation as filed in the Office of the Secretary of State of Delaware, together with all amendments adopted through the date of this Certificate.

3.

Attached as Exhibit B is a true and complete copy of the Company’s by-laws as in effect on the date of this Certificate, together with all amendments adopted through the date of this Certificate.

4.

Attached as Exhibit C are true and complete copies of the resolutions duly adopted by the Company’s board of directors as of August 11, 2021 by written consent. Such resolutions have not been revoked, modified, amended, or rescinded and are in full force and effect on the date of this Certificate.

5.

Attached as Exhibit D is a certificate of good standing of the Company, certified by the Delaware Secretary of State.

I have executed this Certificate on August 11, 2021.

/s/ Karen A. Gledhill

Karen A. Gledhill

Secretary

1


EXHIBIT A

Certificate/Articles of Incorporation

1


EXHIBIT B

By-laws

1


EXHIBIT C

Resolutions

1


EXHIBIT D

Good Standing Certificate

1


EXHIBIT M

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

[RESERVED]

M-1


EXHIBIT N

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

[RESERVED]

N-1


EXHIBIT O

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

FORM OF TRANSFERRING AFFILIATE LETTER

[Attached]

O-1


EXECUTION VERSION

SECOND AMENDED AND RESTATED TRANSFERRING AFFILIATE LETTER

Dated as of August 11, 2021

NATIONAL MEDICAL CARE, INC.

920 Winter Street

Waltham, MA 02451

Attention: Mark Fawcett

Dear Sirs:

We refer to the Third Amended and Restated Receivables Purchase Agreement dated as of August 11, 2021 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 October 16, 2008 (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 Second 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.(a) 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 Assets, if any, with respect thereto, which are owed from time to time to such Transferring Affiliate for an amount equal to the Intercompany Purchase Price (as defined below) of such Receivables, which amount the Seller shall pay to such Transferring Affiliate (i) in cash, (ii) by way of a credit to such Transferring Affiliate in the appropriate intercompany account, (iii) by delivery of one or more Letters of Credit procured by the Seller in such form or forms and for the benefit of such beneficiary or beneficiaries as may have been requested by such Transferring Affiliate or (iv) in any combination of the foregoing, in each case by the last Business Day of the month following the month in which such purchase was made (the related “TAL Settlement Date”). Each purchase of a Receivable and the Related Assets with respect thereto shall be deemed to be made on the date such Receivable is created.


The Seller shall settle from time to time each credit to the account of a Transferring Affiliate by way of (i) payments in cash, (ii) credits in amounts equal to cash expended, obligations incurred or the value of services or property provided by or on behalf of the Seller or (iii) delivery of one or more Letters of Credit procured by the Seller as requested by such Transferring Affiliate, 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.

As used herein, the term “Intercompany Purchase Price” shall mean a purchase price as may be agreed from time by each Transferring Affiliate and the Seller and which would provide the Seller with a reasonable return on its purchases hereunder after taking into account (i) the time value of money based upon the anticipated dates of collection of such Receivables and the cost to the Seller of financing its investment in such Receivables during such period and (ii) the risk of nonpayment by the Obligors. Each Transferring Affiliate and the Seller may agree from time to time to change the Intercompany Purchase Price based on changes in the items described in clauses (i) and (ii) of the previous sentence, provided that any change to the Intercompany Purchase Price shall apply only prospectively and shall not affect the purchase price of Receivables sold prior to the date on which the Transferring Affiliate and the Seller agree to make such change.

In the event the Seller shall have procured one or more Letters of Credit for a Transferring Affiliate as part of the Intercompany Purchase Price for any Receivables, and the aggregate face amount of such Letters of Credit exceeds the aggregate Intercompany Purchase Price payable to such Transferring Affiliate on the related TAL Settlement Date, then an amount equal to such excess shall be debited from the appropriate intercompany account and shall be deemed to be a prepayment for application on a later TAL Settlement Date toward the Intercompany Purchase Price for Receivables subsequently purchased hereunder.

In the event the Seller shall have procured a Letter of Credit for a Transferring Affiliate as part of the Intercompany Purchase Price for any Receivables, and such Letter of Credit (i) expires or is cancelled or otherwise terminated with all or any portion of its face amount undrawn, or (ii) has its face amount decreased (for a reason other than a drawing having been made thereunder), then an amount equal to such undrawn amount or decrease, as the case may be, shall either be paid by the Seller in cash to such Transferring Affiliate on the next TAL Settlement Date or, if the Seller does not then have cash available therefor, shall be deemed to be a credit to such Transferring Affiliate in the appropriate intercompany account.

(b)If on any day the Purchaser becomes entitled to a Purchase Price Credit pursuant to Section 2.3(a) of the Agreement, the Seller shall become entitled to a credit against the Intercompany Purchase Price in the same amount as such Purchase Price Credit, which will be owed to the Seller by the Transferring Affiliate that originated the Receivable giving rise to the Purchase Price Credit. If any credit to which the Seller becomes so entitled on any date exceeds the aggregate Intercompany Purchase Price of the Receivables sold hereunder by such Transferring Affiliate on such date, then such

2


Transferring Affiliate shall pay the remaining amount of such credit to the Seller in cash on the next succeeding Business Day; provided that, if the Termination Date has not occurred, such Transferring Affiliate shall be allowed to deduct the remaining amount of such credit from any indebtedness owed to it by the Seller with respect to other purchases of Receivables hereunder.

(c)It is the intention of the parties hereto that each purchase of Receivables under this Transferring Affiliate Letter shall constitute a sale of such Receivables, together with the Related Assets with respect thereto, from the applicable Transferring Affiliate to the Seller, conveying good title thereto free and clear of any Adverse Claims, and that such Receivables and Related Assets not be part of the applicable Transferring Affiliate’s estate in the event of an insolvency. If, notwithstanding the foregoing, the transactions contemplated under this Transferring Affiliate Letter should be deemed a financing and not a sale or such sale shall for any reason be ineffective or unenforceable (any of the foregoing a “Recharacterization”), each Transferring Affiliate and the Seller intend that such Transferring Affiliate shall be deemed to have granted to the Seller a first priority perfected and continuing security interest in all of such Transferring Affiliate’s right, title and interest in, to and under the Receivables now or hereafter arising that are purportedly sold to the Seller pursuant to this Transferring Affiliate Letter, together with the Related Assets with respect thereto, and that this Agreement shall constitute a security agreement under applicable law. In the case of any Recharacterization, each Transferring Affiliate and the Seller represents and warrants that each remittance of Collections by such Transferring Affiliate to the Seller hereunder will have been (i) in payment of a debt incurred by such Transferring Affiliate in the ordinary course of business or financial affairs of the Seller and such Transferring Affiliate and (ii) made in the ordinary course of business or financial affairs of such Transferring Affiliate and the Seller. The security interests deemed granted and granted pursuant to the two preceding sentences shall secure all obligations of the Transferring Affiliates hereunder and under the other Transaction documents (including, without limitation, all indemnification obligations of the Transferring Affiliates under Section 17 of this Transferring Affiliate Letter).

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.

3


(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 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

4


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.

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 Transferring Affiliate 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

5


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.

(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

6


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 (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 writing in the Account Schedule (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. Subject to satisfaction of the conditions set forth in Section 2.15 of the TAA, any Transferring Affiliate may be removed as a party hereto if (i) such Transferring Affiliate, the Seller and the Transferor have delivered to each Administrative Agent and the Agent a duly executed

7


supplement substantially in the form attached to this Transferring Affiliate Letter as Exhibit 1 (a “Removal Supplement”) and (ii) such Removal Supplement shall have been acknowledged in writing by the Agent.

9.All notices and other communications provided for hereunder shall, unless otherwise stated herein, be in writing (including writing delivered by way of mail, email, telecopier, telegraphic, telex or cable communication) and mailed, emailed, telecopied, telegraphed, telexed, cabled or delivered, as to each party hereto, at its 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, emailed, telecopied, telegraphed, telexed or cabled, be effective when deposited in the mails, emailed, 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 Eighth Amended and Restated Transfer and Administration Agreement dated as of August 11, 2021 (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 The Bank of Nova Scotia, 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

8


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 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. For purposes of the foregoing, the term “Conduit Investor” shall include each party identified as a Conduit Investor for purposes of Section 10.9 of the TAA. The provisions of this Section shall survive the termination of this Agreement.

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.

9


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. Delivery of an executed counterpart via email or other electronic transmission shall be as effective as delivery of an original counterpart.

17.Indemnities by the Transferring Affiliates. Without limiting any other rights which the Seller or any other Indemnified Party (as defined below) may have hereunder or under applicable law, the Transferring Affiliates hereby jointly and severally agree to indemnify the Seller and any successors and permitted assigns (including, without limitation, the Purchaser, Conduit Investors, the Bank Investors, the Agent, the Administrative Agents, the Collateral Agents, the Liquidity Providers and the Credit Support Providers) 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 any Liquidity Provider, any Credit Support Provider, the Agent, any Administrative Agent, any Collateral Agent or the Purchaser, 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 any Transferring Affiliate or any Parent Group Member (including any Parent Group Member, in its capacity as the Collection Agent) and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise arising out of or as a result of this Transferring Affiliate Letter, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Seller and its assigns of Receivables and Related Assets 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, Indemnified Amounts for which the Seller is compensated under Section 1(b), or (iii) recourse (except as otherwise specifically provided in this Transferring Affiliate Letter) for uncollectible Receivables. Without limiting the generality of the foregoing, the Transferring Affiliates, jointly and severally, 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 Transferring Affiliate Letter or 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;

10


(iii)the failure to vest and maintain vested in the Purchaser a first priority ownership interest in the Affected Assets 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 (if a Parent Group Member or designee thereof) to perform its duties or obligations in accordance with the provisions of the TAA; 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 Transferring Affiliate Letter 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 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;

(xi)the commingling by the Seller, any other Originating Entity or the Collection Agent (if a Parent Group Member or designee thereof) of Collections of Receivables at any time with other funds;

(xii)any investigation, litigation or proceeding related to Transferring Affiliate Letter, any of the other Transaction Documents, the use of proceeds of Transfers by the Seller or any other Originating Entity, the ownership of any Receivable, Related Security or Contract or any interest therein;

(xiii)the failure of any Special Account Bank or any Designated Account Agent 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 Seller, any Originating Entity or the Agent (to the extent such Person is entitled to give such

11


instructions in accordance with the terms of the Transaction Documents) whether by reason of the exercise of set-off rights or otherwise;

(xiv)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 Seller to qualify to do business or file any notice of business activity report or any similar report;

(xv)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 or any transfer of any Receivable hereunder under statutory provisions or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code;

(xvi)any action taken by the Seller, any other 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 any applicable Liquidity Provider Agreement, Credit Support Agreement or the credit support furnished by any applicable Credit Support Provider to the Seller 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 Seller 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;

(xvii)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 Seller or any Parent Group Member; or

(xviii)any failure by the Seller 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.

18.Perfection Representations. The Perfection Representations shall be a part of the Agreement for all purposes. Each Transferring Affiliate hereby makes the representations and warranties set forth in the Perfection Representations as of the date of each sale of Receivables hereunder. The Perfection Representations shall survive termination of this Agreement.

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[Remainder of page intentionally left blank]

13


EXECUTION VERSION

Very truly yours,

1.

APHERESIS CARE GROUP, INC.

2.

BIO-MEDICAL APPLICATIONS MANAGEMENT COMPANY, INC.

3.

BIO-MEDICAL APPLICATIONS OF ALABAMA, INC.

4.

BIO-MEDICAL APPLICATIONS OF AMARILLO, INC.

5.

BIO-MEDICAL APPLICATIONS OF ANACOSTIA, INC.

6.

BIO-MEDICAL APPLICATIONS OF AQUADILLA, INC.

7.

BIO-MEDICAL APPLICATIONS OF ARECIBO, INC.

8.

BIO-MEDICAL APPLICATIONS OF ARKANSAS, INC.

9.

BIO-MEDICAL APPLICATIONS OF BAYAMON, INC.

10.

BIO-MEDICAL APPLICATIONS OF BLUE SPRINGS, INC.

11.

BIO-MEDICAL APPLICATIONS OF CAGUAS, INC.

12.

BIO-MEDICAL APPLICATIONS OF CALIFORNIA, INC.

13.

BIO-MEDICAL APPLICATIONS OF CAMARILLO, INC.

14.

BIO-MEDICAL APPLICATIONS OF CAROLINA, INC.

15.

BIO-MEDICAL APPLICATIONS OF CLINTON, INC.

16.

BIO-MEDICAL APPLICATIONS OF COLUMBIA HEIGHTS, INC.

17.

BIO-MEDICAL APPLICATIONS OF CONNECTICUT, INC.

18.

BIO-MEDICAL APPLICATIONS OF DELAWARE, INC.

19.

BIO-MEDICAL APPLICATIONS OF DOVER, INC.

20.

BIO-MEDICAL APPLICATIONS OF EUREKA, INC.

21.

BIO-MEDICAL APPLICATIONS OF FAYETTEVILLE, INC.

22.

BIO-MEDICAL APPLICATIONS OF FLORIDA, INC.

23.

BIO-MEDICAL APPLICATIONS OF FREMONT, INC.

24.

BIO-MEDICAL APPLICATIONS OF FRESNO, INC.

25.

BIO-MEDICAL APPLICATIONS OF GEORGIA, INC.

26.

BIO-MEDICAL APPLICATIONS OF GUAYAMA, INC.

27.

BIO-MEDICAL APPLICATIONS OF HUMACAO, INC.

28.

BIO-MEDICAL APPLICATIONS OF ILLINOIS, INC.

29.

BIO-MEDICAL APPLICATIONS OF INDIANA, INC.

30.

BIO-MEDICAL APPLICATIONS OF KANSAS, INC.

31.

BIO-MEDICAL APPLICATIONS OF KENTUCKY, INC.

32.

BIO-MEDICAL APPLICATIONS OF LOS GATOS, INC.

33.

BIO-MEDICAL APPLICATIONS OF LOUISIANA, LLC

34.

BIO-MEDICAL APPLICATIONS OF MAINE, INC.

Signature Page to Second Amended and Restated Transferring Affiliate Letter


35.

BIO-MEDICAL APPLICATIONS OF MANCHESTER, INC.

36.

BIO-MEDICAL APPLICATIONS OF MARYLAND, INC.

37.

BIO-MEDICAL APPLICATIONS OF MASSACHUSETTS, INC.

38.

BIO-MEDICAL APPLICATIONS OF MAYAGUEZ, INC.

39.

BIO-MEDICAL APPLICATIONS OF MICHIGAN, INC.

40.

BIO-MEDICAL APPLICATIONS OF MINNESOTA, INC.

41.

BIO-MEDICAL APPLICATIONS OF MISSISSIPPI, INC.

42.

BIO-MEDICAL APPLICATIONS OF MISSOURI, INC.

43.

BIO-MEDICAL APPLICATIONS OF NEW HAMPSHIRE, INC.

44.

BIO-MEDICAL APPLICATIONS OF NEW JERSEY, INC.

45.

BIO-MEDICAL APPLICATIONS OF NEW MEXICO, INC.

46.

BIO-MEDICAL APPLICATIONS OF NORTH CAROLINA, INC.

47.

BIO-MEDICAL APPLICATIONS OF NORTHEAST D.C., INC.

48.

BIO-MEDICAL APPLICATIONS OF OHIO, INC.

49.

BIO-MEDICAL APPLICATIONS OF OKLAHOMA, INC.

50.

BIO-MEDICAL APPLICATIONS OF PENNSYLVANIA, INC.

51.

BIO-MEDICAL APPLICATIONS OF PONCE, INC.

52.

BIO-MEDICAL APPLICATIONS OF PUERTO RICO, INC.

53.

BIO-MEDICAL APPLICATIONS OF RHODE ISLAND, INC.

54.

BIO-MEDICAL APPLICATIONS OF RIO PIEDRAS, INC.

55.

BIO-MEDICAL APPLICATIONS OF SAN GERMAN, INC.

56.

BIO-MEDICAL APPLICATIONS OF SAN JUAN, INC.

57.

BIO-MEDICAL APPLICATIONS OF SOUTH CAROLINA, INC.

58.

BIO-MEDICAL APPLICATIONS OF SOUTHEAST WASHINGTON, INC.

59.

BIO-MEDICAL APPLICATIONS OF TENNESSEE, INC.

60.

BIO-MEDICAL APPLICATIONS OF TEXAS, INC.

15


61.

BIO-MEDICAL APPLICATIONS OF THE DISTRICT OF COLUMBIA, INC.

62.

BIO-MEDICAL APPLICATIONS OF VIRGINIA, INC.

63.

BIO-MEDICAL APPLICATIONS OF WEST VIRGINIA, INC.

64.

BIO-MEDICAL APPLICATIONS OF WISCONSIN, INC.

65.

BIO-MEDICAL APPLICATIONS OF WYOMING, LLC

66.

BREVARD COUNTY DIALYSIS, LLC

67.

CLAYTON COUNTY DIALYSIS, LLC

68.

CLERMONT DIALYSIS CENTER, LLC

69.

COLLEGE PARK DIALYSIS, LLC

70.

COLUMBUS AREA RENAL ALLIANCE, LLC

71.

CONEJO VALLEY DIALYSIS, INC.

72.

DIALYSIS AMERICA GEORGIA, LLC

73.

DIALYSIS ASSOCIATES OF NORTHERN NEW JERSEY, L.L.C.

74.

DIALYSIS CENTERS OF AMERICA - ILLINOIS, INC.

75.

DIALYSIS MANAGEMENT CORPORATION

76.

DIALYSIS SERVICES OF ATLANTA, INC.

77.

DIALYSIS SERVICES OF CINCINNATI, INC.

78.

DIALYSIS SPECIALISTS OF MARIETTA, LTD.

79.

DIALYSIS SPECIALISTS OF TOPEKA, INC.

80.

DOUGLAS COUNTY DIALYSIS, LLC

81.

DU PAGE DIALYSIS LTD.

82.

EVEREST HEALTHCARE HOLDINGS, INC.

83.

EVEREST HEALTHCARE INDIANA, INC.

84.

EVEREST HEALTHCARE OHIO, INC.

85.

EVEREST HEALTHCARE RHODE ISLAND, INC.

86.

EVEREST HEALTHCARE TEXAS, L.P.

87.

FMS DELAWARE DIALYSIS, LLC

88.

FMS PHILADELPHIA DIALYSIS, LLC

89.

FONDREN DIALYSIS CLINIC, INC.

90.

FORT SCOTT REGIONAL DIALYSIS CENTER, INC.

91.

FOUR STATE REGIONAL DIALYSIS CENTER, INC.

92.

FRESENIUS KIDNEY CARE GUAM, LLC

93.

FRESENIUS KIDNEY CARE PITTSBURGH, LLC

94.

FRESENIUS MANAGEMENT SERVICES, INC.

95.

FRESENIUS MEDICAL CARE – SOUTH TEXAS KIDNEY, LLC

96.

FRESENIUS MEDICAL CARE DIALYSIS SERVICES COLORADO, LLC

97.

FRESENIUS MEDICAL CARE DIALYSIS SERVICES-OREGON, LLC

98.

FRESENIUS MEDICAL CARE HARSTON HALL, LLC

99.

FRESENIUS MEDICAL CARE HOLDINGS, INC.

100.

FRESENIUS MEDICAL CARE OF ILLINOIS, LLC

16


101.

FRESENIUS MEDICAL CARE OF MONTANA, LLC

102.

FRESENIUS MEDICAL CARE VENTURES, LLC

103.

FRESENIUS MEDICAL CARE-OSUIM KIDNEY CENTERS, LLC

104.

FRESENIUS USA MANUFACTURING, INC.

105.

FRESENIUS USA MARKETING, INC.

106.

FRESENIUS USA, INC.

107.

GULF REGION MOBILE DIALYSIS, INC.

108.

HAEMO-STAT, INC.

109.

HAUPPAUGE DIALYSIS CENTER, LLC

110.

HENRY DIALYSIS CENTER, LLC

111.

HOLTON DIALYSIS CLINIC, LLC

112.

HOME DIALYSIS OF MUHLENBERG COUNTY, INC.

113.

HOMESTEAD ARTIFICIAL KIDNEY CENTER, INC.

114.

INLAND NORTHWEST RENAL CARE GROUP, LLC

115.

JEFFERSON COUNTY DIALYSIS, INC.

116.

KDCO, INC.

117.

KENTUCKY RENAL CARE GROUP, LLC

118.

LITTLE ROCK DIALYSIS, INC.

119.

MAUMEE DIALYSIS SERVICES, LLC

120.

METRO DIALYSIS CENTER - NORMANDY, INC.

121.

METRO DIALYSIS CENTER - NORTH, INC.

122.

NATIONAL MEDICAL CARE, INC.

123.

NATIONAL NEPHROLOGY ASSOCIATES OF TEXAS, L.P.

124.

NEW YORK DIALYSIS SERVICES, INC.

125.

NNA OF ALABAMA, INC.

126.

NNA OF EAST ORANGE, L.L.C.

127.

NNA OF GEORGIA, INC.

128.

NNA OF HARRISON, L.L.C.

129.

NNA OF LOUISIANA, LLC

130.

NNA OF OKLAHOMA, INC.

131.

NNA OF OKLAHOMA, L.L.C.

132.

NNA OF RHODE ISLAND, INC.

133.

NNA OF TOLEDO, INC.

134.

NNA-SAINT BARNABAS-LIVINGSTON, L.L.C.

135.

NNA-SAINT BARNABAS, L.L.C.

136.

NORTHERN NEW JERSEY DIALYSIS, L.L.C.

137.

NRA-ADA, OKLAHOMA, LLC

138.

NRA-AUGUSTA, GEORGIA, LLC

139.

NRA-BAMBERG, SOUTH CAROLINA, LLC

140.

NRA-CROSSVILLE, TENNESSEE, LLC

141.

NRA-FARMINGTON, MISSOURI, LLC

142.

NRA-GEORGETOWN, KENTUCKY, LLC

143.

NRA-HOGANSVILLE, GEORGIA, LLC

144.

NRA-HOLLY HILL, SOUTH CAROLINA, LLC

17


145.

NRA-HOLLYWOOD, SOUTH CAROLINA, LLC

146.

NRA-INPATIENT DIALYSIS, LLC

147.

NRA-LAGRANGE, GEORGIA, LLC

148.

NRA-MT. PLEASANT, SOUTH CAROLINA, LLC

149.

NRA-NEW CASTLE, INDIANA, LLC

150.

NRA-NEWNAN ACQUISITION, LLC

151.

NRA-ORANGEBURG, SOUTH CAROLINA, LLC

152.

NRA-PALMETTO, GEORGIA, LLC

153.

NRA-PRINCETON, KENTUCKY, LLC

154.

NRA-ROANOKE, ALABAMA, LLC

155.

NRA-SOUTH CITY, MISSOURI, LLC

156.

NRA-ST. LOUIS (HOME THERAPY CENTER), MISSOURI, LLC

157.

NRA-ST. LOUIS, MISSOURI, LLC

158.

NRA-TALLADEGA, ALABAMA, LLC

159.

NRA-VALDOSTA (NORTH), GEORGIA, LLC

160.

NRA-VALDOSTA, GEORGIA, LLC

161.

NRA-WASHINGTON COUNTY, MISSOURI, LLC

162.

NRA-WINCHESTER, INDIANA, LLC

163.

QUALICENTERS ALBANY, LTD.

164.

QUALICENTERS BEND LLC

165.

QUALICENTERS COOS BAY, LTD.

166.

QUALICENTERS EUGENE-SPRINGFIELD, LTD.

167.

QUALICENTERS INLAND NORTHWEST L.L.C.

168.

QUALICENTERS PUEBLO LLC

169.

QUALICENTERS SALEM LLC

170.

RAI CARE CENTERS OF ALABAMA, LLC

171.

RAI CARE CENTERS OF FLORIDA I, LLC

172.

RAI CARE CENTERS OF FLORIDA II, LLC

173.

RAI CARE CENTERS OF GEORGIA I, LLC

174.

RAI CARE CENTERS OF ILLINOIS I, LLC

175.

RAI CARE CENTERS OF ILLINOIS II, LLC

176.

RAI CARE CENTERS OF MARYLAND I, LLC

177.

RAI CARE CENTERS OF MICHIGAN I, LLC

178.

RAI CARE CENTERS OF MICHIGAN II, LLC

179.

RAI CARE CENTERS OF NEBRASKA II, LLC

180.

RAI CARE CENTERS OF NORTH CAROLINA II, LLC

181.

RAI CARE CENTERS OF NORTHERN CALIFORNIA I, LLC

182.

RAI CARE CENTERS OF NORTHERN CALIFORNIA II, LLC

183.

RAI CARE CENTERS OF OAKLAND II, LLC

184.

RAI CARE CENTERS OF SOUTH CAROLINA I, LLC

185.

RAI CARE CENTERS OF SOUTHERN CALIFORNIA I, LLC

18


186.

RAI CARE CENTERS OF SOUTHERN CALIFORNIA II, LLC

187.

RAI CARE CENTERS OF VIRGINIA I, LLC

188.

RCG BLOOMINGTON, LLC

189.

RCG EAST TEXAS, LLP

190.

RCG INDIANA, L.L.C.

191.

RCG IRVING, LLP

192.

RCG MARTIN, LLC

193.

RCG MEMPHIS EAST, LLC

194.

RCG MISSISSIPPI, INC.

195.

RCG PENSACOLA, LLC

196.

RCG ROBSTOWN, LLP

197.

RCG UNIVERSITY DIVISION, INC.

198.

RELIANT RENAL CARE LAPEER HOME CHOICE, LLC

199.

RENAL CARE GROUP, INC.

200.

RENAL CARE GROUP ALASKA, INC.

201.

RENAL CARE GROUP EAST, INC.

202.

RENAL CARE GROUP MAPLEWOOD, LLC

203.

RENAL CARE GROUP NORTHWEST, INC.

204.

RENAL CARE GROUP OF THE MIDWEST, INC.

205.

RENAL CARE GROUP OF THE OZARKS, LLC

206.

RENAL CARE GROUP OF THE ROCKIES, LLC

207.

RENAL CARE GROUP OF THE SOUTH, INC.

208.

RENAL CARE GROUP OF THE SOUTHEAST, INC.

209.

RENAL CARE GROUP SOUTH NEW MEXICO, LLC

210.

RENAL CARE GROUP SOUTHWEST MICHIGAN, LLC

211.

RENAL CARE GROUP SOUTHWEST, L.P.

212.

RENAL CARE GROUP TERRE HAUTE, LLC

213.

RENAL CARE GROUP TEXAS, INC.

214.

RENAL CARE GROUP TOLEDO, LLC

215.

RENAL CARE GROUP-HARLINGEN, L.P.

216.

RENALPARTNERS, INC.

217.

RENEX DIALYSIS CLINIC OF BLOOMFIELD, INC.

218.

RENEX DIALYSIS CLINIC OF BRIDGETON, INC.

219.

RENEX DIALYSIS CLINIC OF CREVE COEUR, INC.

220.

RENEX DIALYSIS CLINIC OF MAPLEWOOD, INC.

221.

RENEX DIALYSIS CLINIC OF ORANGE, INC.

222.

RENEX DIALYSIS CLINIC OF PITTSBURGH, INC.

223.

RENEX DIALYSIS CLINIC OF SOUTH GEORGIA, INC.

224.

RENEX DIALYSIS CLINIC OF ST. LOUIS, INC.

225.

RENEX DIALYSIS CLINIC OF UNIVERSITY CITY, INC.

226.

RENEX DIALYSIS FACILITIES, INC.

19


227.

SAINT LOUIS RENAL CARE, LLC

228.

SAN DIEGO DIALYSIS SERVICES, INC.

229.

SANTA BARBARA COMMUNITY DIALYSIS CENTER, INC.

230.

SMYRNA DIALYSIS CENTER, LLC

231.

SSKG, INC.

232.

ST. LOUIS REGIONAL DIALYSIS CENTER, INC.

233.

STAT DIALYSIS CORPORATION

234.

STONE MOUNTAIN DIALYSIS CENTER, LLC

235.

STUTTGART DIALYSIS, LLC

236.

TAPPAHANNOCK DIALYSIS CENTER, INC.

237.

TERRELL DIALYSIS CENTER, L.L.C.

238.

WARRENTON DIALYSIS FACILITY, INC.

239.

WEST END DIALYSIS CENTER, INC.

240.

WSKC DIALYSIS SERVICES, INC.

20


(each a “Transferring Affiliate”)

By:

Name:

Title:

Acknowledged and accepted:

NATIONAL MEDICAL CARE, INC.

By

Name:

Title:

NMC FUNDING CORPORATION

By

Name:

Title:

Signature Page to Second Amended and Restated Transferring Affiliate Letter


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 The Bank of Nova Scotia.

The Bank of Nova Scotia as Agent

By

Name:

Title:

Signature Page to Second Amended and Restated Transferring Affiliate Letter


EXHIBIT 1

Amended and Restated

Exhibit 1 to the

Amended and Restated

Transferring Affiliate Letter

FORM OF REMOVAL SUPPLEMENT

Reference is hereby made to the Amended and Restated Transferring Affiliate Letter dated October 16, 2008 (the “Transferring Affiliate Letter”) from the Transferring Affiliates to National Medical Care, Inc. (the “Seller”), as the same may be amended, restated, supplemented or otherwise modified from time to time. Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Transferring Affiliate Letter.

Subject to satisfaction of the conditions set forth in Section 8 of the Transferring Affiliate Letter and Section 2.15 of the TAA, [                  ] (the “Removed TA”) is hereby removed as a Transferring Affiliate from the Transferring Affiliate Letter on the date hereof (such date, the “Removal Date”).

Notwithstanding the removal of the Removed TA as a Transferring Affiliate under the Transferring Affiliate Letter, on and after the Removal Date, the Removed TA 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 each covenant or undertaking required to be performed by the Seller under the Agreement that relates to any Collections, accounts or the assets or properties of the Removed TA.

The execution, delivery and effectiveness of this Removal Supplement shall not operate as a waiver of any right, power or remedy of the Seller or any of its assignees under the Transferring Affiliate Letter or any other document, instrument, or agreement executed in connection therewith, nor constitute a waiver of any provision contained therein.

THIS REMOVAL SUPPLEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICT OF LAW PROVISIONS) AND DECISIONS OF THE STATE OF NEW YORK.

This Removal Supplement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument. Delivery of an executed counterpart via email or other electronic transmission shall be as effective as delivery of an original counterpart.

Ex 1-1


[TRANSFERRING AFFILIATE],

as Removed TA

By:

Name:

Title:

NATIONAL MEDICAL CARE, INC.,

as Seller

By:

Name:

Title:

NMC FUNDING CORPORATION,

as Purchaser and Transferor

By:

Name:

Title:

Ex 1-2


EXHIBIT P

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

FORM OF RECEIVABLES PURCHASE AGREEMENT AND PARENT AGREEMENT

[Attached]

P-1


FORM OF

THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT


EXECUTION VERSION


THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT

between

NATIONAL MEDICAL CARE, INC.

as Seller

and

NMC FUNDING CORPORATION

as Purchaser

Dated as of August 11, 2021



TABLE OF CONTENTS

Page

Article I

DEFINITIONS

SECTION 1.1.

Certain Defined Terms

1

SECTION 1.2.

Other Terms

10

SECTION 1.3.

Computation of Time Periods

11

Article II

PURCHASE AND SETTLEMENTS

SECTION 2.1.

Purchases of Receivables; Agreement to Purchase

11

SECTION 2.2.

Payment for the Purchases

12

SECTION 2.3.

Purchase Price Credit Adjustments

14

SECTION 2.4.

Payments and Computations, Etc

14

SECTION 2.5.

Transfer of Records to Purchaser

14

SECTION 2.6.

Protection of Ownership Interest of the Purchaser

15

SECTION 2.7.

Additional Transferring Affiliates

16

SECTION 2.8.

Letters of Credit

16

Article III

REPRESENTATIONS AND WARRANTIES

SECTION 3.1.

Representations and Warranties of the Seller

18

SECTION 3.2.

Reaffirmation of Representations and Warranties by the Seller

22

Article

IV CONDITIONS PRECEDENT

SECTION 4.1.

Conditions Precedent to Closing

22

SECTION 4.2.

Conditions Precedent to Purchases

22

Article V

COVENANTS

SECTION 5.1.

Affirmative Covenants of Seller

23

SECTION 5.2.

Negative Covenants of the Seller

28

-i-


Article VI

ADMINISTRATION AND COLLECTION

SECTION 6.1.

Collection of Receivables

31

SECTION 6.2.

Rights of Purchaser

31

SECTION 6.3.

Special Accounts

32

SECTION 6.4.

Responsibilities of the Seller

32

SECTION 6.5.

Reports

32

Article

VII SELLER DEFAULTS

SECTION 7.1.

Seller Defaults

33

SECTION 7.2.

Remedies

35

Article

VIII INDEMNIFICATION; EXPENSES

SECTION 8.1.

Indemnities by the Seller

35

SECTION 8.2.

Other Costs and Expenses

38

Article

IX MISCELLANEOUS

SECTION 9.1.

Term of Agreement

38

SECTION 9.2.

Waivers; Amendments

39

SECTION 9.3.

Notices

39

SECTION 9.4.

Governing Law; Submission to Jurisdiction; Integration

40

SECTION 9.5.

Severability; Counterparts

40

SECTION 9.6.

Successors and Assigns

40

SECTION 9.7.

Waiver of Confidentiality

41

SECTION 9.8.

Confidentiality Agreement

41

SECTION 9.9.

Bankruptcy Petitions

41

SECTION 9.10.

Purchase Termination

42

SECTION 9.11.

Subordination

42

SECTION 9.12.

Characterization of the Transactions Contemplated by the Agreement

42

-ii-


EXHIBITS

EXHIBIT A

[RESERVED]

EXHIBIT B

[RESERVED]

EXHIBIT C

[RESERVED]

EXHIBIT D

Form of Special Account Letter

EXHIBIT E

Form of Subordinated Note

EXHIBIT F

List of Actions and Suits

EXHIBIT G

Location of Records

EXHIBIT H

List of Seller’s Subsidiaries, Divisions and Tradenames

EXHIBIT I

Form of Transferring Affiliate Letter

EXHIBIT J

List of Transferring Affiliates, Chief Executive Offices of Transferring Affiliates and Tradenames

EXHIBIT K

Form of Account Agent Agreement

-iii-


THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT

This THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (this “Agreement”) dated as of August 11, 2021, is entered into by and between NATIONAL MEDICAL CARE, INC., a Delaware corporation, as seller (the “Seller”), and NMC FUNDING CORPORATION, a Delaware corporation, as purchaser (the “Purchaser”).

PRELIMINARY STATEMENTS

WHEREAS, the Seller and the Purchaser are parties to that certain Second Amended and Restated Receivables Purchase Agreement dated as of January 17, 2013 (as amended prior to the date hereof, the “Existing Receivables Purchase Agreement”); and

WHEREAS, the parties hereto desire to amend and restate the Existing Receivables Purchase Agreement in its entirety.

NOW, THEREFORE, the parties hereby agree as follows:

ARTICLE I

DEFINITIONS

SECTION 1.1. Certain Defined Terms. Capitalized terms used and not otherwise defined herein have the meanings assigned to such terms in the TAA. 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 K hereto.

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

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

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

Aggregate Unpaids” has the meaning specified in the TAA.

Agreement” has the meaning specified in the Preamble hereto.


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

Base Rate” has the meaning specified in the TAA.

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

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.

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.

Closing Date” means August 11, 2021.

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 and any successor agency or agencies charged with such responsibilities.

Code” means the Internal Revenue Code of 1986, as amended. “Collection Account” has the meaning specified in the TAA.

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

2


Collection Date” means the date on which the TAA shall be terminated in accordance with its terms and all of the Aggregate Unpaids thereunder paid in full.

Commercial Obligor” means any Obligor referred to in clause (C) or (E) of the definition of “Obligor”.

Concentration Account” has the meaning specified in the TAA.

Concentration Account Agreement” has the meaning specified in the TAA.

Concentration Account Bank” has the meaning specified in the TAA.

Concentration Account Notice” has the meaning specified in the TAA.

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

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

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 Purchaser an Account Agent Agreement.

Eligible Receivable” has the meaning set forth in the TAA, except that, for purposes of this Agreement (a) the criteria listed in clause (ii) of the definition of Eligible Receivable in the TAA shall not be applicable and (b) references in clauses (iii) and (v) of such definition in the TAA to “the time of the initial creation of an interest therein hereunder” shall instead be deemed to mean and refer to “the time such Receivable was sold or transferred by the Seller to the Purchaser hereunder.”

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.

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

3


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).

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, 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” shall have the meaning specified in the TAA. “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.

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.

Indebtedness” or “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,

4


acceptances, or other instruments, (v) obligations in respect of leases as determined under IFRS 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.

Intermediate Concentration Account” has the meaning specified in the TAA.

Intermediate Concentration Account Agreement” has the meaning specified in the TAA.

Intermediate Concentration Account Bank” has the meaning specified in the TAA.

Intermediate Concentration Account Notice” has the meaning specified in the TAA.

Investor Report” has the meaning specified in the TAA.

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

L/C Issuer” has the meaning specified in the TAA.

Letter of Credit” has the meaning specified in the TAA.

Letter of Credit Application” has the meaning specified in the TAA.

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 Seller or any other Originating Entity to charge or collect a material portion of the Receivables or Related Security, (iii) the ability of (A) the Seller or any other 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 of any such provision or, if the Seller shall fail to do so, to perform or observe any such provision required to be performed or observed by the Seller under this Agreement or any other Transaction Document to which the Seller is party, in each case pursuant to the Parent Agreement, (iv) the ability of (A) any Transferring Affiliate to perform or observe in any material respect any provision of the Transferring Affiliate Letter or, in the case of any Designated Account Agent, the applicable Account Agent Agreement or (B) of FME KGaA or FMCH to cause the due and punctual performance and observation by such Transferring Affiliate or such Designated Account Agent of any such provision or, if such Transferring Affiliate or such Designated Account Agent shall fail to do so, to perform or observe any such provision, in each case, pursuant to the Parent Agreement, (v) the financial condition, operations, businesses or properties of FME KGaA, FMCH, the Seller or the Transferor or (vi) the interests of the Purchaser and/or its assignees under the Transaction Documents.

5


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.

Moody’s” means Moody’s Investors Service, Inc.

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

Net Investment” has the meaning specified in the TAA.

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; provided that 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, shall be deemed for purposes of this Agreement to be one Obligor with respect to such Receivable:

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

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

6


(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.

(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.

Parent Agreement” has the meaning specified in the TAA.

Parent Group” means, collectively, FME KGaA, FMCH, the Seller, the Originating Entities and their Subsidiaries and Affiliates (other than the Purchaser), and “Parent Group Member” means any such Person individually.

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 Seller Default” means an event which but for the lapse of time or the giving of notice, or both, would constitute a Seller Default.

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

Proceeds” means “proceeds” as defined in Section 9-102 of the UCC.

7


Purchase” means, on any Business Day, the sale, assignment, contribution, transfer and/or other conveyance of Receivables, together with the Related Assets with respect thereto, from the Seller to the Purchaser in accordance with the terms of Article II hereof.

Purchase Price” means, with respect to any Purchase on any date, the aggregate price to be paid to the Seller in connection therewith, which shall be an amount equal to (i) the Outstanding Balance of the Receivables that are the subject of such Purchase, minus any Contractual Adjustments in respect of such Receivables, multiplied by (ii) the Purchase Price Percentage then in effect.

Purchase Price Credit” means a credit in favor of the Purchaser against the Purchase Price otherwise due and payable by the Purchaser hereunder.

Purchase Price Percentage” means 97%, or such other percentage as may be agreed from time to time by the Purchaser and the Seller and which would provide the Purchaser with a reasonable return on its Purchases hereunder after taking into account (i) the time value of money based upon the anticipated dates of collection of such Receivables and the cost to the Purchaser of financing its investment in such Receivables during such period including, without limitation, any costs as may be associated with the procurement of Letters of Credit and (ii) the risk of nonpayment by the Obligors. The Seller and the Purchaser may agree from time to time to change the Purchase Price Percentage based on changes in the items described in clauses (i) and (ii) above, provided that any change to the Purchase Price Percentage shall apply only prospectively and shall not affect the Purchase Price in respect of Purchases made prior to the date on which the Purchaser and the Seller agree to make such change.

Purchaser” means NMC Funding Corporation, and its successors and permitted assigns.

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

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.

Recharacterization” has the meaning specified in Section 9.12(a).

Related Assets” has the meaning specified in Section 2.1(a) hereof.

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

(i)all of the Seller’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

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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 Seller under the Transferring Affiliate Letter, together with all financing statements filed in connection therewith against the Transferring Affiliates; and

(vi)

all Proceeds of any of the foregoing.

Responsible Officer” means any of the Chief Executive Officer, the President, the Chief Financial Officer, the Controller, the Treasurer or an Assistant Treasurer of the Seller.

Revolving Loan” has the meaning specified in Section 2.2(b).

Seller” means National Medical Care, Inc., a Delaware corporation, and its successors and permitted assigns.

Seller Default” has the meaning specified in Section 7.1.

Settlement Date” means (i) the last Business Day of each calendar month with respect to the immediately preceding calendar month and (ii) any additional day designated by the Purchaser.

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 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.

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

Subordinated Note” has the meaning specified in Section 2.2(b) hereof.

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.

TAA” means that certain Eighth Amended and Restated Transfer and Administration Agreement dated as of the Closing Date 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”, the Persons parties thereto as “Administrative Agents” and The Bank of Nova Scotia, as “Agent”, as the same has been or may hereafter be from time to time amended, restated, supplemented or otherwise modified.

Termination Date” means the date, occurring after the “Termination Date” under the TAA, which the parties hereto agree shall be the Termination Date for purposes of this Agreement.

Transaction Documents” has the meaning specified in the TAA.

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

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

US Government Obligor” means any Obligor that is the 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”.

Voting Stock” shall have the meaning specified in the TAA.

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

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Receivables Purchase Agreement in its entirety. This Agreement is not intended to constitute a novation of the Existing Receivables Purchase Agreement. Upon the effectiveness of this Agreement (the “Effective Date”), each reference to the Existing Receivables Purchase Agreement in any other document, instrument or agreement executed and/or delivered in connection therewith shall mean and be a reference to this Agreement.

ARTICLE II

PURCHASE AND SETTLEMENTS

SECTION 2.1. Purchases of Receivables; Agreement to Purchase. (a) Pursuant to the Existing Receivables Purchase Agreement, the Purchaser purchased from the Seller all of the Seller’s right, title and interest in and to each and every Receivable existing as of the Original Closing Date and Receivables arising thereafter. Subject to the terms and conditions hereinafter set forth, the Purchaser hereby purchases from the Seller, and the Seller hereby sells, transfers, assigns and otherwise conveys to the Purchaser, all of the Seller’s right, title and interest in and to each and every Receivable existing as of the Closing Date as well as each and every Receivable which may arise at any time thereafter until the Termination Date, together, in each case, with the Related Security, Collections and Proceeds with respect thereto (such Related Security, Collections and Proceeds, collectively, the “Related Assets”). All of the Seller’s right, title and interest in and to all Receivables and the Related Assets with respect thereto arising on each day prior to the Termination Date shall, without further action of any type being required on the part of the Purchaser or the Seller (and notwithstanding any delay in making payment of the Purchase Price therefor, or any delay in making any notation reflecting payment of such Purchase Price), be automatically transferred on such day to the Purchaser, whereupon the Purchaser shall have the obligation to pay the Purchase Price in respect thereof in the manner, at the time and otherwise in accordance with the terms specified in this Agreement. Prior to paying the Purchase Price hereunder in respect of any Purchase, the Purchaser may request of the Seller, and the Seller shall deliver, such approvals, opinions, information, reports or documents as the Purchaser may reasonably request.

(b)It is the intention of the parties hereto that each Purchase of Receivables made hereunder shall constitute a true sale of such Receivables and the Related Assets with respect thereto (including, in the case of Receivables, a “sale of accounts,” as such term is used in Article 9 of the UCC), which sales shall, in each case, be absolute and irrevocable and provide the Purchaser with the full benefits of ownership of such Receivables and Related Assets. Except for the Purchase Price Credits owed pursuant to Section 2.3 hereof, each sale of Receivables by the Seller to the Purchaser is made without recourse to the Seller; provided, however, that (i) the Seller shall be liable to the Purchaser for all representations, warranties and covenants made by the Seller pursuant to the terms of this Agreement or any other Transaction Document, and (ii) such sale does not constitute and is not intended to result in an assumption by the Purchaser of any obligation of the Seller, any Transferring Affiliate or any other Person arising under or in connection with the Receivables, the Related Assets and/or the related Contracts. In view of the intention of the parties hereto that the Purchases of Receivables made hereunder shall constitute sales of such Receivables rather than a loan secured by such Receivables, the Seller agrees on or prior to the date hereof to mark its master data processing records relating to the Receivables with a legend, acceptable to the Purchaser, evidencing that the

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Purchaser has purchased such Receivables as provided in this Agreement and to note in its financial statements that its Receivables have been sold to the Purchaser.

(c)Notwithstanding any other provision of this Agreement to the contrary, no Purchases shall be made hereunder from and after the time of any Event of Bankruptcy with respect to the Seller or the Purchaser.

SECTION 2.2. Payment for the Purchases. (a) The Purchase Price for each Purchase of Receivables hereunder shall be payable in full by the Purchaser to the Seller by one or any combination of the following means:

(i)by the issuance of equity in the manner contemplated in that certain Stockholder and Subscription Agreement dated as of August 28, 1997 between the Seller and the Purchaser or in such other manner as may from time to time be agreed as between the Seller and the Purchaser or as may be deemed to have been effected in accordance with the terms hereof (the action of the Seller giving rise to any such issuance of equity being a “Capital Contribution”);

(ii)by the delivery of immediately available funds, to the extent of funds then available to the Purchaser or then being made available to the Purchaser in connection with its subsequent sale of an undivided percentage ownership interest in such Receivables to the Agent (on behalf of any Conduit Investor or the Bank Investors, as applicable) under the TAA;

(iii)by the delivery of a Letter of Credit procured by and for the account of the Purchaser in accordance with Section 2.8, in form and substance satisfactory to the Seller, for the benefit of such beneficiary as shall have been designated by the Seller; and/or

(iv)

by the application of the proceeds of a Revolving Loan.

The Purchase Price for each Purchase shall be payable in full by the Purchaser to the Seller or its designee on the date of such Purchase, except that the Purchaser may, with respect to any such Purchase, offset against such Purchase Price any amounts owed by the Seller to the Purchaser hereunder and which have become due but remain unpaid.

(b)If the Purchase Price in respect of any Purchase shall exceed an amount equal to (i) the aggregate amount then being received by the Purchaser from any Transfers under the TAA plus (ii) the aggregate face amount of all Letters of Credit then being issued at the request of the Seller in connection with such Purchase, the Purchaser shall, with notice to the Seller, pay such shortfall (a “Purchase Price Shortfall”) by borrowing from the Seller a revolving loan (each a “Revolving Loan”), and the Seller, subject to the remaining provisions of this paragraph, irrevocably agrees to advance, and shall be deemed to have advanced, a Revolving Loan in the amount so specified by the Purchaser; provided, however, that no such Revolving Loan shall be made to the Purchaser, if, after giving effect thereto, either (x) the aggregate outstanding amount of the Revolving Loans would exceed the aggregate Outstanding Balance of the Eligible Receivables minus the aggregate Net Investment outstanding at such time under the TAA or (y) the Purchaser’s net worth would be less than an amount (the “Minimum Net Worth”) that is at such time the greater of (A) $5,000,000 or (B) three percent (3.00%) of the sum of the

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aggregate Net Investment and the aggregate face amount of all Letters of Credit outstanding at such time under the TAA. The Revolving Loans shall be evidenced by, and shall be payable in accordance with the terms and provisions of, a promissory note in the form of Exhibit E hereto (the “Subordinated Note”) and shall be payable solely from funds which the Purchaser is not required under the TAA to set aside for the benefit of, or otherwise pay over to, the Agent, any Conduit Investor and/or the Bank Investors.

(c)If, in respect of any Purchase, there shall continue to be a Purchase Price Shortfall after applying the proceeds of any Revolving Loan extended on the date of such Purchase, then the Seller shall be deemed to have made a Capital Contribution having a value equal to the otherwise unpaid portion of the total Purchase Price owed on such day.

(d)The respective Purchase Prices for the Purchases made during any calendar month shall be settled on a monthly basis on the Settlement Date occurring in the succeeding calendar month, such settlement to be made based on the information contained in the Investor Report in respect of such calendar month. With respect to any such settlement, each adjustment to the outstanding balance of the Subordinated Note made pursuant to this Article II and each Capital Contribution made by the Seller to the Purchaser pursuant to this Article II shall be deemed to have occurred and shall be effective as of the last Business Day of the calendar month to which such settlement relates. Notwithstanding the foregoing, to the extent the Purchaser receives either Collections or proceeds from any Incremental Transfers, which, in either case, it is not required to hold in trust for, or remit to, the Agent, any Conduit Investor and/or any of the Bank Investors pursuant to the TAA, then the Purchaser shall remit such funds to the Seller (net of any funds needed to pay existing expenses of the Purchaser which are then accrued and unpaid) in the following order of application: first to pay the Purchase Price for any Receivables Purchased from the Seller; second to pay amounts owed by the Purchaser to the Seller under the Subordinated Note; provided, that if on any Settlement Date it is determined that the aggregate amount of funds so remitted by the Purchaser to the Seller during any calendar month exceeded the aggregate of the amounts described in clauses first and second above due and payable by the Purchaser to the Seller during such calendar month, such excess funds shall be returned forthwith by the Seller to the Purchaser. The Purchaser will be responsible for payment of all fees and expenses in connection with the issuance of the Letters of Credit. The Purchaser will be the sole account party on all Letters of Credit and the Seller will have no recourse liability to any L/C Issuer or any reimbursement obligations in respect of any Letter of Credit.

SECTION 2.3. Purchase Price Credit Adjustments. (a) If on any day the Outstanding Balance of a Receivable is either (x) reduced as a result of any defective, rejected or returned merchandise or services, any discount, credit, Contractual Adjustment, rebate, dispute, warranty claim, repossessed or returned goods, chargeback, allowance, any billing adjustment or other adjustment, or (y) reduced or canceled as a result of a setoff or offset in respect of any claim by any Person (whether such claim arises out of the same or a related transaction or an unrelated transaction), the Purchaser shall be entitled to a Purchase Price Credit in an amount equal to the full amount of such reduction or cancellation. In addition, 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

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respect to a Receivable (whether on or after the date of any transfer thereof to the Purchaser 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” in the TAA or becomes a Diluted Government Program Receivable, then, in any such case, the Purchaser shall be entitled to a Purchase Price Credit in an amount equal the Outstanding Balance of such Receivable (determined without giving effect to any write-off with respect thereto). If any Purchase Price Credit to which the Purchaser is entitled pursuant to this Section 2.3 exceeds the Purchase Price of the Receivables to be sold hereunder on any date, then the Seller shall pay the remaining amount of such Purchase Price Credit to the Purchaser in cash on the next succeeding Business Day; provided that, if the Termination Date has not occurred, the Seller shall be allowed to deduct the remaining amount of such Purchase Price Credit from any indebtedness owed to it under the Subordinated Note.

(b)Any payment by an Obligor in respect of any indebtedness owed by it to the Seller shall, except as otherwise specified by such Obligor or otherwise required by contract or law and unless otherwise instructed by the Purchaser, be applied as a Collection of any Receivable of such Obligor which was included in a Purchase hereunder (starting with the oldest such Receivable) before being applied to any other receivable or other indebtedness of such Obligor.

SECTION 2.4. Payments and Computations, Etc. All amounts to be paid or deposited by the Seller hereunder shall be paid or deposited in accordance with the terms hereof no later than 11:00 a.m. (New York City time) on the day when due in immediately available funds. The Seller shall, to the extent permitted by law, pay to the Purchaser, upon demand, interest on all amounts not paid or deposited when due hereunder at a rate equal to 2% per annum plus the Base Rate. All computations of interest 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 the Purchaser of amounts payable by the Seller hereunder shall be binding upon the Seller absent manifest error.

SECTION 2.5. Transfer of Records to Purchaser. (a) In connection with the Purchases of Receivables hereunder, the Seller hereby sells, transfers, assigns and otherwise conveys to the Purchaser all of the Seller’s right and title to and interest in the Records relating to all Receivables included in any Purchase hereunder, without the need for any further documentation in connection with any such Purchase. In connection with such transfer, the Seller hereby grants to each of the Purchaser and the Collection Agent (including, without limitation, any successor Collection Agent appointed in accordance with the TAA) an irrevocable, non-exclusive license to use, without royalty or payment of any kind, all software now or hereafter used by the Seller to account for the Receivables, to the extent necessary to administer the Receivables, whether such software is owned by the Seller or is owned by others and used by the Seller under license agreements with respect thereto (the “Software”). As of the date hereof, with respect to all Software now existing, either (i) no consent by any licensor of the Seller to such grant is required, (ii) if any such consent is required, such consent has been obtained, or (iii) the data administered and managed with the use of such Software is in a form such that other types of software that are generally available may be used to administer and manage such data in the same fashion as then being administered and managed with the applicable Software. If after the date hereof the consent by any licensor of the Seller to such

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grant shall be required, the Seller shall promptly obtain such consent. The license granted hereby shall be irrevocable, and shall not expire until the date on which this Agreement shall terminate in accordance with its terms.

(b)The Seller shall take such action requested by the Purchaser and/or the Agent, from time to time hereafter, that may be reasonably necessary or appropriate to ensure that the Purchaser (and its assignees) has (i) an enforceable ownership interest in the Records relating to the Receivables purchased from the Seller hereunder and (ii) an enforceable right (whether by license or sublicense or otherwise) to use all of the computer software used to account for the Receivables and/or to recreate such Records.

SECTION 2.6. Protection of Ownership Interest of the Purchaser. (a) The Seller agrees that it will, and will cause each Transferring Affiliate 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 Purchaser or the Agent may reasonably request in order to perfect or protect the ownership interest of the Purchaser in the Receivables and Related Assets with respect thereto or to enable the Purchaser to exercise or enforce any of its rights and remedies hereunder. Without limiting the foregoing, the Seller will, upon the request of the Purchaser or the Agent, in order to accurately reflect the purchase and sale of the Receivables and Related Assets hereunder, execute and file such financing or continuation statements or amendments thereto or assignments thereof as may be requested by the Purchaser or the Agent. The Seller shall, upon request of the Purchaser or the Agent, obtain such additional search reports as the Purchaser or the Agent shall request. To the fullest extent permitted by applicable law, each of the Purchaser and the Agent shall be permitted to sign and file continuation statements and amendments thereto and assignments thereof without the Seller’s signature. The Seller shall not, and shall not permit any Transferring Affiliate to, change its respective name, identity or corporate structure (within the meaning of Section 9-507 of the UCC as in effect in any applicable state) nor relocate its respective chief executive office or any office where Records are kept unless it shall have: (i) given each of the Purchaser and the Agent at least thirty (30) days prior notice thereof and (ii) prepared at Seller’s expense and delivered to each of the Purchaser and the Agent all financing statements, instruments and other documents necessary to preserve and protect the Purchaser’s ownership interest in the Receivables and the Related Assets with respect thereto or requested by the Purchaser or the Agent in connection with such change or relocation. Any filings under the UCC or otherwise that are occasioned by such change in name or location shall be made at the expense of the Seller.

(b)In addition and without limiting the authority of the Purchaser or the Agent set forth in subsection (a) above, but subject to subsection (c) below, the Seller shall, and shall cause each Transferring Affiliate to (i) instruct any or all of the Special Account Banks (which instructions shall be maintained in full force and effect) 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

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event the Seller shall at any time determine, for any of the reasons described in subsection (c) below, that the Seller or any Transferring Affiliate shall be unable to comply fully with the requirements of this subsection (b), the Seller shall promptly so advise the Purchaser and the Agent, and the Purchaser, the Agent and the Seller shall commence discussions with a view toward implementing an alternative arrangement therefor satisfactory to the Purchaser and the Agent.

(c)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 2.7. Additional Transferring Affiliates. (a) If (i) one or more direct or indirect wholly-owned subsidiaries of the Seller (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 Seller and the Transferring Affiliates or (ii) the Seller 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 the Seller, any or all of the wholly-owned subsidiaries referred to in clauses (i) and (ii) may, with the prior written consent of the Purchaser and the Agent (which consent shall not be unreasonably withheld or delayed), become Transferring Affiliates under this Agreement upon delivery to the Purchaser and the 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 pursuant to Section 4.1, together with such other instruments, documents and agreements as either the Purchaser or the Agent may reasonably request in connection therewith.

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

SECTION 2.8. Letters of Credit. (a) Upon the request of the Seller, and on the terms and conditions for issuing Letters of Credit under the TAA (including any limitations therein on the amount of any such issuance), the Purchaser agrees to request one or more L/C Issuers to issue, on any date of Purchase specified by the Seller, Letters of Credit in favor of the beneficiaries specified by the Seller. The aggregate face amount of the Letters of Credit being issued on the date of any Purchase on behalf of the Seller shall constitute a credit against the aggregate Purchase Price payable by the Purchaser to the Seller on the date of such Purchase

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pursuant to Section 2.1. To the extent that the aggregate face amount of the Letters of Credit being issued on any Settlement Date exceeds the aggregate Purchase Price payable by the Purchaser to the Seller on such Settlement Date, such excess shall be deemed to be a (i) reduction in the outstanding principal balance of (and, to the extent necessary, the accrued but unpaid interest on) the Subordinated Note payable to the Seller and/or (ii) a reduction in the Purchase Price payable on the date of any Purchase immediately following the date any such Letter of Credit is issued. In the event that any such Letter of Credit issued pursuant to this Section 2.8 (i) expires or is cancelled or otherwise terminated with all or any portion of its face amount undrawn, (ii) has its face amount decreased (for a reason other than a drawing having been made thereunder) or (iii) the Purchaser’s Reimbursement Obligation in respect thereof is reduced for any reason other than by virtue of a payment made in respect of a drawing thereunder, then an amount equal to such undrawn amount, such decrease or such reduction, as the case may be, shall either be paid by the Purchaser in cash to the Seller on the next Settlement Date or, if the Purchaser does not then have cash available therefor, shall be deemed to be (x) first, added to the outstanding principal balance of the Subordinated Note issued to the Seller to the extent that such addition would not cause the Purchaser’s net worth to be less than the Minimum Net Worth, and (y) second¸ a Capital Contribution to the capital of the Purchaser. Under no circumstances shall the Seller (or any Affiliate thereof (other than the Purchaser)) have any reimbursement or recourse obligations in respect of any Letter of Credit.

(b)In the event that the Seller requests one or more Letters of Credit hereunder, the Seller shall on a timely basis provide the Purchaser with such information as is necessary for the Purchaser to obtain such Letters of Credit from one or more L/C Issuers, and shall otherwise comply with any requests for information made by the Purchaser or the applicable L/C Issuers to facilitate the issuance of such Letters of Credit.

(c)The Seller acknowledges the limitations on liability of each L/C Issuer contained in the TAA, including, without limitation, under Section 2.22 thereof.

ARTICLE III

REPRESENTATIONS AND WARRANTIES

SECTION 3.1. Representations and Warranties of the Seller. The Seller represents and warrants to the Purchaser that:

(a)Corporate Existence and Power. The Seller 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 Seller 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 Seller of this Agreement and the other Transaction

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Documents to which the Seller is a party are within the Seller’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 2.6 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 By-laws of the Seller or of any agreement, judgment, injunction, order, writ, decree or other instrument binding upon the Seller or result in the creation or imposition of any Adverse Claim on the assets of the Seller or any of its Subsidiaries (except as contemplated by Section 2.6 hereof).

(c)Binding Effect. Each of this Agreement and the other Transaction Documents to which the Seller is a party constitutes the legal, valid and binding obligation of the Seller, 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 Purchase hereunder, the Seller shall be the owner of all of the Receivables included in such Purchase, free and clear of all Adverse Claims. On or prior to each Purchase hereunder, all financing statements and other documents required to be recorded or filed, or notices to Obligors required to be given, in order to perfect and protect the ownership interest of the Purchaser against all creditors of and purchasers from the Seller will have been duly given to such Obligors or filed in each filing office necessary for such purpose, as applicable, 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 Seller (including, without limitation, each Investor Report and each Cash Collections Report (in each case, to the extent such Investor Report and Cash Collections Report is prepared by the Seller or any other Parent Group Member or contains any information supplied by the Seller or any such Parent Group Member), any reports delivered pursuant to Section 6.5 and the Seller’s financial statements) to the Purchaser, any Conduit Investor, any Bank Investor, the Agent or any Administrative Agent for purposes of or in connection with this Agreement or any other Transaction Document or any transaction contemplated hereby or thereby is, and all such information hereafter furnished by the Seller to the Purchaser, any Conduit Investor, any Bank 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 Seller has filed all tax returns (federal, state and local) required to be filed and has paid or made adequate provision for the payment of all taxes, assessments and other governmental charges.

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

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(h)Use of Proceeds. No proceeds of any Purchase will be used by the Seller 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 Seller are located at the address of the Seller indicated in Section 9.3 hereof and the offices where the Seller keeps substantially all its Records, are located at the address(es) described on Exhibit G or such other locations notified to the Purchaser and the Agent in accordance with Section 2.6 hereof in jurisdictions where all action required by Section 2.6 hereof has been taken and completed. The principal place of business and chief executive office of each Transferring Affiliate are located at the address of such Transferring Affiliate indicated in Exhibit J hereof and the offices where the each Transferring Affiliate keeps substantially all its Records, are located at the address(es) specified on Exhibit J with respect to such Transferring Affiliate or such other locations notified to the Purchaser and the Agent in accordance with Section 2.6 hereof in jurisdictions where all action required by Section 2.6 hereof has been taken and completed.

(j)Good Title. Upon each Purchase, the Purchaser shall acquire all legal and equitable title to, and a valid and perfected first priority ownership interest in, each Receivable that exists on the date of such Purchase and in the Related Security, Collections and other Proceeds with respect thereto free and clear of any Adverse Claim.

(k)Tradenames, Etc. As of the date hereof: (i) the Seller’s chief executive office is located at the address for notices set forth in Section 9.3 hereof; (ii) the Seller has no subsidiaries or divisions other than those listed on Exhibit H hereto; (iii) the Seller 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), except, in each case, as disclosed on Exhibit H hereto; and (iv) none of the Transferring Affiliates has, within the last five (5) years, operated under any tradename 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 disclosed on Exhibit J.

(l)Nature of Receivables. Each Receivable purchased by, or otherwise transferred to, the Purchaser hereunder shall be an “eligible asset” as defined in Rule 3a-7 under the Investment Company Act, of 1940, as amended, and, except as otherwise disclosed in writing on or prior to the date of such purchase or transfer, shall be an Eligible Receivable as of such date. Without limiting the generality of the foregoing, no Receivable that is or has been treated as an Eligible Receivable for any purpose hereunder or under the TAA was originated by any Transferring Affiliate following the date it ceased to be a direct or indirect wholly-owned Subsidiary of FMCH.

(m)Amount of Receivables. As of the date of each Investor Report issued under the TAA, such Investor Report set forth true, accurate and complete information as to the matters described therein.

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(n)Credit and Collection Policy. Since September 30, 2012, there have been no material changes in the Credit and Collection Policy other than as permitted hereunder. Since such date, no material adverse change has occurred in the overall rate of collection of the Receivables.

(o)Collections and Servicing. Since September 30, 2012, there has been no material adverse change in the ability of the Collection Agent (to the extent it is the Seller or any other Parent Group Member) to service and collect the Receivables.

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

(q)Not an Investment Company. The Seller 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 Seller and its ERISA Affiliates is in compliance in all material respects with ERISA and no lien exists in favor of the Pension Benefit Guaranty Corporation on any of the Receivables.

(s)Special Account Banks and Intermediate Concentration Account Banks. The names and addresses of all the Special Account Banks (and, if applicable, the Designated Account Agents in respect thereof), the Intermediate Concentration Account Banks, if any, together with the account numbers of the Special Accounts at such Special Account Banks and of the Intermediate Concentration Account Banks, are specified in the Account Schedule (or at such other Special Account Banks, with such other Special Accounts, Intermediate Concentration Accounts or with such other Designated Account Agents as have been notified to the Purchaser and the Agent in accordance with Section 5.2(e)). The Account Schedule sets forth all depositary accounts and locations to which Obligors are instructed to remit payments on the Receivables. Neither the Seller nor any Transferring Affiliate has granted to any Person dominion and control over any Special Account or Intermediate Concentration Account, or the right to take dominion and control over any Special Account or Intermediate Concentration Account at a future time or upon the occurrence of a future event and each Special Account and each Intermediate Concentration Account is otherwise free and clear of any Adverse Claim.

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

(u)Preference; Voidability (this Agreement). With respect to each Receivable transferred to the Purchaser under this Agreement, the Purchaser has given reasonably equivalent value to the Seller in consideration for such transfer of such Receivable and the Related Assets with respect thereto, no such transfer has been made for or on account of an antecedent debt owed by the Seller to the Purchaser and no such transfer is or may be voidable under any Section of the Bankruptcy Code.

(v)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

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the Transferring Affiliate Letter, such purchase being deemed to have been made on the date such Receivable was created (or on the Original Closing Date, in the case of a Receivable outstanding on such 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 (A) in cash, (B) by procuring a Letter of Credit for and at the direction of such Transferring Affiliate, (C) by way of a credit to such Transferring Affiliate in the appropriate intercompany account or (D) by any combination of the foregoing, 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.

(w)Preference; Voidability (Transferring Affiliates). The Seller shall have given reasonably equivalent value to each Transferring Affiliate in consideration for the transfer to the Seller of the Receivables and Related Security from such Transferring Affiliate, and each such transfer shall not have 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.

(x)Ownership. FME KGaA owns, directly or indirectly, 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 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 Purchaser is owned by the Seller, free and clear of any Adverse Claim.

(y)Representations and Warranties of the Transferring Affiliates. Each of the representations and warranties of the Transferring Affiliates set forth in the Transferring Affiliate Letter are true and correct in all material respects and the Seller hereby remakes all such representations and warranties for the benefit of the Purchaser.

(z)Leased Equipment. With respect to any dialysis or other medical equipment that has been leased by any Person to the Seller in respect of which such lessor has filed a UCC financing statement against the Seller (“Subject Leased Equipment”), (i) the arrangement relating to such Subject Leased Equipment is intended in good faith by such lessor and the Seller to be an “operating lease” and not a secured financing; (ii) the property covered by each such UCC financing statement is limited to the applicable Subject Leased Equipment and its proceeds; (iii) less than five percent (5.0%) of the Subject Leased Equipment is retained by the Seller, with the balance of the Subject Leased Equipment being used by Transferring Affiliates (and other affiliates that are not Transferring Affiliates) under unsecured intercompany

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usage or subleasing arrangements between the Seller and such Transferring Affiliates (or such other affiliates); and (iv) neither the Seller nor any lessor of Subject Leased Equipment has filed any UCC financing statement or similar instrument against any Transferring Affiliate in respect of any Subject Leased Equipment.

(aa)Anti-Corruption Laws and Sanctions. Policies and procedures have been implemented and maintained by or on behalf of the Seller that are designed to achieve compliance by the Seller and its Subsidiaries, directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, giving due regard to the nature of such Person’s business and activities, and the Seller, its Subsidiaries and, to the knowledge of the Seller, its officers, employees, directors and agents acting in any capacity in connection with or directly benefitting from the sale, transfer or assignment of the Receivables under the RPA, are in compliance, in all material respects, (i) with Anti-Corruption Laws, except for the matters described on Exhibit F, and (ii) applicable Sanctions. None of (a) the Seller or any of its

Subsidiaries or, to the knowledge of the Seller, any of its directors, officers, employees, or agents that will act in any capacity in connection with or directly benefit from the sale, transfer or assignment of the Receivables under the RPA, is a Sanctioned Person, and (b) neither the Seller nor any of its Subsidiaries is organized or resident in a Sanctioned Country. No sale, transfer or assignment of any Receivables or use of proceeds of any of the foregoing by the Seller has in any manner given rise to a violation of Anti-Corruption Laws or applicable Sanctions.

Any document, instrument, certificate or notice delivered to the Purchaser (or any of its assignees) hereunder shall be deemed a representation and warranty by the Seller.

SECTION 3.2. Reaffirmation of Representations and Warranties by the Seller. On each day that a Purchase is made hereunder, the Seller, by accepting the proceeds of such Purchase, 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.

ARTICLE IV

CONDITIONS PRECEDENT

SECTION 4.1. Conditions Precedent to Closing. The effectiveness of this Agreement is subject to the conditions precedent that (i) the Purchaser shall have received copies of each of the documents, instruments, certificates and opinions described in Section 4.1 of the TAA and (ii) each of the conditions precedent to the execution, delivery and effectiveness of the TAA shall have been satisfied and/or waived in accordance with the terms thereof.

SECTION 4.2. Conditions Precedent to Purchases. The obligation of the Purchaser to make a Purchase on any Business Day is subject to the conditions precedent that:

(a)the Seller shall have delivered to the Purchaser, in form and substance satisfactory to the Purchaser, all reports required to have been delivered by it pursuant to Section 6.5, together with such additional information as may be reasonably requested by the Purchaser; and

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(b) the representations and warranties set forth in Article III shall be true and correct on and as of the date of such Purchase as though made on and as of such date, both before and after giving effect to such Purchase and the application of the proceeds therefrom.

By accepting the proceeds of any Purchase, the Seller shall be deemed to have represented and warranted that the foregoing conditions precedent are satisfied.

Notwithstanding any failure or inability of the Seller to satisfy any of the foregoing conditions precedent on any date in respect of any Purchase, title to the Receivables and the Related Assets with respect thereto included in such Purchase shall vest in the Purchaser without any action required on the part of the Purchaser (but without impairment of its obligation to pay the Purchase Price in respect thereof in accordance with the terms of this Agreement), and the Purchaser (as owner of such Receivables) shall have a claim against the Seller arising in respect of the representations and warranties made by the Seller in connection with such Purchase.

ARTICLE V

COVENANTS

SECTION 5.1. Affirmative Covenants of Seller. At all times from the date hereof to the Collection Date, unless each of the Purchaser and the Agent shall otherwise consent in writing:

(a) Financial Reporting. The Seller will, and will cause 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 of the Purchaser and the Agent:

(i)Annual Reporting. As soon as available and in any event within 95 days after the close of the fiscal year of FMCH, a company-prepared consolidated balance sheet of FMCH and its Subsidiaries as of the end of such fiscal year and the related company-prepared consolidated statements of income and retained earnings for such fiscal year.

(ii)Quarterly Reporting. As soon as available and in any event within 50 days after the end of the second fiscal quarter of FMCH, a company-prepared consolidated balance sheet of FMCH and its Subsidiaries as of the end of such quarter and the related company-prepared consolidated statements of income and retained earnings for such quarterly period.

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.

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(iii)Compliance Certificate. Together with the financial statements required hereunder, a compliance certificate signed by a Responsible Officer stating that (x) the attached financial statements have been prepared in accordance with GAAP and accurately reflect the financial condition of the applicable Person and (y) to the best of such Person’s knowledge, no Seller Default or Potential Seller Default exists, or if any Seller Default or Potential Seller Default exists, stating the nature and status thereof.

(iv)Notice of Seller Default or Potential Seller Default. 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 Seller Default or each Potential Seller Default, a statement of a Responsible Officer setting forth details of such Seller Default or Potential Seller Default and the action which the Seller 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 any provision of 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. On an annual basis, at least 30 days prior to the Commitment Termination Date, a complete copy of the Credit and Collection Policy then in effect, together with a summary of any material changes from the most recent Credit and Collection Policy delivered to the Administrative Agents pursuant to Section 4.1(o) or Section 5.1(a) of the TAA.

(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 Seller or any ERISA Affiliate of 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 Seller or any ERISA Affiliates of 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 Seller).

(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 Agent’s execution of a confidentiality agreement in form and substance satisfactory to both the Seller and the Agent, as soon as possible and in any event (A) within five Business Days after any Originating Entity receives any subpoena, request for information, or any other document relating to any possible violation by any Originating

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Entity of, or failure by 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 Purchaser or 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 the Purchaser or the 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 any Originating Entity.

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

(b)Conduct of Business. The Seller (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 other Originating Entity to do each of the foregoing in respect of such Originating Entity; provided, however, that the Seller shall not be required to cause any Terminated Transferring Affiliate (DT) to carry on and conduct its business in substantially the same manner and in substantially the same fields of enterprise as it is presently or had conducted.

(c)Compliance with Laws. The Seller will, and will cause each other 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 Seller will, and will cause each other Originating Entity to, furnish to each of the Purchaser and the Agent from time to time such information with respect to the Receivables as the Purchaser or the Agent may reasonably request, including, without limitation, listings identifying the Obligor and the Outstanding Balance for each Receivable. The Seller will, and will cause each other Originating Entity to, at any time and from time to time during regular business hours permit the Purchaser, the Agent, or any of their respective 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 Seller or such other Originating Entity, as applicable, for the purpose of examining such Records, and to discuss matters relating to Receivables or the Seller’s or such other 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 Seller or such other Originating Entity, as applicable, having knowledge of such matters; provided, however, that the Purchaser acknowledges that in exercising the rights and privileges conferred in this Section 5.1(d) it or its agents or representatives may, from time to time, obtain knowledge of information, practices, books, correspondence and records (“Confidential

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Information”) identified to it in writing as being of a confidential nature or in which the Seller or another Originating Entity has a proprietary interest. The Purchaser 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 Seller 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 Seller; 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 5.1(d)), (ii) is required or appropriate in response to any summons or subpoena in connection with any litigation or (iii) is required by law to be disclosed; and provided, further, however, that such Confidential Information may be disclosed to (A) the Agent, any Conduit Investor, any Bank Investor, any Credit Support Provider and any Liquidity Provider, subject to the terms of Section 5.1(d) of the TAA, (B) the Agent’s or any such Person’s legal counsel, auditors and other business advisors, (C) any such Person’s government regulators and (D) any Conduit Investor’s rating agencies, 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 the Agent has agreed to keep confidential such Confidential Information as provided in clauses (x) and (y) above.

(e)Keeping of Records and Books of Account. The Seller will, and will cause each other 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 Seller will, and will cause each other Originating Entity to, give each of the Purchaser and the Agent notice of any material change in the administrative and operating procedures of the Seller or such other Originating Entity, as applicable, referred to in the previous sentence.

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

(g)Credit and Collection Policies. The Seller will, and will cause each other 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. The Seller shall, and shall cause each other Originating Entity to (i) 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 all Obligors to cause all Collections to be deposited directly into a Special

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Account, (iii) 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, and (iv) instruct (or 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 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, (v) 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 (vi) instruct the Concentration Account Bank to give to each Special Account Bank on each banking day notice to transfer to the Concentration Account all Collections on deposit during such banking day in the Special Accounts at such Special Account Bank (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, the Seller shall, by not later than the date that occurs six months after the Original Closing Date, (i) close, or cause the applicable Originating Entity to close, such Special Account and (ii) instruct, and cause each other 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 Seller shall, and shall cause each other 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 of its receipt thereof (or, if such day is not a Business Day, the next Business Day following such receipt) to the Concentration Account, or Intermediate Concentration Account, as applicable, all Collections received from time to time by the Seller or such other Originating Entity, as the case may be.”

(j)Sale Treatment. The Seller will not, and will not permit any Transferring Affiliate to, account for (including for accounting and tax purposes), or otherwise treat, the transactions contemplated by this Agreement, the Transferring Affiliate Letter in any manner other than as a sale of Receivables by the Seller to the Purchaser or by the applicable Transferring Affiliate to the Seller, as applicable. In addition, the Seller shall, and shall cause each Transferring Affiliate 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 transactions contemplated hereby, by the TAA , by the Transferring Affiliate Letter, and the interest of the Purchaser in the Transferred Assets.

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(k)Separate Business. The Seller acknowledges that the Agent, the Conduit Investors and the Bank Investors are entering into the transactions contemplated in the TAA in reliance upon the Purchaser’s identity as a separate legal entity from the Seller. Therefore, from and after the Original Closing Date, the Seller shall take all actions reasonably required to maintain the Purchaser’s status as a separate legal entity and to make it manifest to third parties that the Purchaser is an entity with assets and liabilities distinct from those of the Seller or any other member of the Parent Group. Without limiting the generality of the foregoing, the Seller shall (i) not hold itself out to third parties as liable for the debts of the Purchaser nor purport to own the Receivables or any of the other assets acquired by the Purchaser hereunder, (ii) shall take all other actions necessary on its part to ensure that the Purchaser is at all times in compliance with the covenants set forth in Section 5.1(k) of the TAA and (iii) shall cause all tax liabilities arising in connection with the transactions contemplated herein or otherwise to be allocated between the Seller and the Purchaser on an arm’s-length basis.

(l)Payment to the Transferring Affiliates. With respect to any Receivable purchased by the Seller from any Transferring Affiliate, the Seller shall cause such sale to be effected under, and in strict compliance with the terms of, the Transferring Affiliate Letter, including, without limitation, the terms relating to the amount and timing of payments to be made to each Transferring Affiliate in respect of the purchase price for such Receivable.

(m)Performance and Enforcement of the Transferring Affiliate Letter. The Seller shall timely perform the obligations required to be performed by the Seller, and shall vigorously enforce the rights and remedies accorded to the Seller, under the Transferring Affiliate Letter. The Seller shall take all actions to perfect and enforce its rights and interests (and the rights and interests of the Purchaser, the Agent, the Conduit Investors and the Bank Investors, as assignees of the Seller) under the Transferring Affiliate Letter as the Purchaser or the 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.

(n)Anti-Corruption Laws and Sanctions. Policies and procedures will be maintained and enforced by or on behalf of the Seller that are designed in good faith and in a commercially reasonable manner to promote and achieve compliance, in the reasonable judgment of the Seller, by the Seller and its directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, in each case giving due regard to the nature of the Seller’s business and activities.

SECTION 5.2. Negative Covenants of the Seller. At all times from the date hereof to the Collection Date, unless the Agent shall otherwise consent in writing:

(a)No Sales, Liens, Etc. Except as otherwise provided herein, the Seller will not, and will not permit any other 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 any other

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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 Seller will not, and will not permit any other 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 Seller will not, and will not permit any other 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 Seller will not, and will not permit any other Originating Entity to, merge with or into or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions), all or substantially all of its assets (whether now owned or hereafter acquired and except as contemplated in the Transaction Documents) to any Person, except that (i) any Transferring Affiliate may merge or consolidate with any other Transferring Affiliate if, but only if, each of the Purchaser and the Agent shall have received at least ten Business Days’ prior written notice of such merger or consolidation and (ii) the Seller may merge or consolidate with any other Person if, but only if, (x) immediately after giving effect to such merger or consolidation, no Seller Default or Potential Seller Default would exist and (y) each of the Purchaser and the Agent shall have received a written agreement, in form and substance satisfactory to each of the Purchaser and the Agent, executed by the corporation resulting from such merger or consolidation, under which agreement such corporation shall become the Seller hereunder and the Collection Agent under the TAA, and shall assume the duties, obligations and liabilities of the Seller and the Collection Agent under this Agreement, the TAA, 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 of the TAA; provided, however, that the Seller shall not be required to comply with this covenant in connection with any merger, consolidation, transfer, lease or other disposition of assets by an Originating Entity (other than the Seller) if the aggregate Outstanding Balance of all Receivables originated by all other Originating Entities with respect to which the Seller is in compliance with this covenant is at least $1,050,000,000.

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

(i)add or terminate any bank as a Special Account Bank from those listed in the Account Schedule hereto, or make any change in its instructions to Obligors regarding payments to be made to any Special Account Bank; provided that the Seller may, and may permit any Originating Entity to, (A) add any bank as a Special Account Bank for purposes of this Agreement at any time following delivery to the Agent of written notice of such addition and a Special Account Letter duly executed by such bank,

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and (B) terminate any Special Account Bank at any time following delivery to the Agent of written notice of such termination and evidence satisfactory to the Agent that the affected Obligors shall have been instructed to remit all subsequent Collections to another Special Account; or

(ii)

make any change in the instructions contained in any Special Account

Letter; or

(iii)add or terminate any Person as a Designated Account Agent from those listed in the Account Schedule 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 Seller may, and may permit any Originating Entity to,(A) add 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 the Agent of written notice of such addition and an Account Agent Agreement duly executed by such Person, and (B) terminate any Designated Account Agent at any time following delivery to the Agent of written notice of such termination and evidence satisfactory to the Agent that either an Originating Entity or a new Designated Account Agent shall have been added in accordance with the terms of this Agreement to succeed such terminated Designated Account Agent in respect of the applicable Special Account or the affected Obligors shall have been instructed to remit all subsequent Collections to another Special Account.

(f)Deposits to Special Accounts, Intermediate Concentration Account and the Concentration Account. The Seller will not, and will not permit any of the other 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 except to the extent permitted in accordance with Section 5.2(f) of the TAA.

(g)Change of Name, Etc. The Seller will not, and will not permit any other Originating Entity to, change its name, identity or structure or the location of its chief executive office, unless at least 10 days prior to the effective date of any such change the Seller delivers to the Agent (i) such documents, instruments or agreements, executed by the Seller and/or the affected Originating Entities, as are necessary to reflect such change and to continue the perfection of the Purchaser’s ownership interests in the Affected Assets and (ii) new or revised Special Account Letters or Intermediate Concentration Account Letter executed by the Special Account Banks or the Intermediate Concentration Account Bank which reflect such change and enable the Agent to continue to exercise its rights contained in Section 2.8 of the TAA.

(h)Amendment to Transferring Affiliate Letter, Etc.. The Seller will not, and will not permit any other Originating Entity to, (i) amend, modify, or supplement the Transferring Affiliate Letter 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

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any Initial Transfer Document, in each case except with the prior written consent of the Purchaser, the Agent and each Administrative Agent; nor shall the Seller take, or permit any other Originating Entity to take, any other action under any of the Initial Transfer Documents that shall have a material adverse effect on the Purchaser, the Agent, any Conduit Investor or any Bank Investor or which is inconsistent with the terms of this Agreement.

(i)ERISA Matters. The Seller will not, and will not permit any other 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 Seller, 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 Seller, 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 Seller, in the aggregate, involve a payment of money or an incurrence of liability by the Seller, any Originating Entity or any ERISA Affiliate thereof, in an amount in excess of $500,000.

(j)Anti-Corruption Laws and Sanctions . The Seller will not sell, transfer or assign any Receivables, and shall procure that its directors, officers, employees and agents shall not use, the proceeds of any sale, transfer or assignment of any Receivables (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (B) for the purpose of funding or financing any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, in each case to the extent doing so would violate any Sanctions, or (C) in any other manner that would result in liability to any party hereto under any applicable Sanctions or the violation of any Sanctions by any such Person.

ARTICLE VI

ADMINISTRATION AND COLLECTION

SECTION 6.1. Collection of Receivables. The servicing, administering and collection of the Receivables shall be conducted by the Collection Agent. For so long as the Person acting as Collection Agent is the Seller, the Seller shall perform its duties as Collection Agent under the TAA in accordance with the terms thereof, it being understood that it shall hold all Receivables, Related Assets, Records and Collections which it receives from time to time solely in its capacity as Collection Agent and shall not claim or retain any legal or beneficial title or interest therein. If at any time the Collection Agent is a Person other than the Seller, the Seller agrees promptly to provide all information requested by the Collection Agent in connection with the performance of its responsibilities under the TAA, and agrees to exert its best efforts to assist any successor Collection Agent in assuming and performing its duties as Collection Agent.

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SECTION 6.2. Rights of Purchaser. At any time:

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

(ii)The Seller shall, at the Purchaser’s request (or at the request of the Agent, as assignee of the Purchaser) and at the Seller’s expense, give notice of the Purchaser’s ownership of Receivables and/or the Agent’s interest in the Receivables to each Obligor and direct that payments be made directly to the Purchaser (or the Agent, as the case may be) or its designee.

(iii)The Seller shall, at the Purchaser’s or the Agent’s request, (A) assemble all of the Records, and shall make the same available to the Purchaser, the Agent or its designee at a place selected by the Purchaser, 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 Purchaser and 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.

Notwithstanding the foregoing clauses (i), (ii) and (iii), neither the Purchaser nor any of its assigns shall at any time direct, or cause 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 such Originating Entity in respect of such Receivables or Related Security directly to either the Intermediate Concentration Account or the Concentration Account or to the Purchaser, the Purchaser’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.

SECTION 6.3. Special Accounts. The Seller hereby transfers to the Purchaser, and shall cause each of the Transferring Affiliates to transfer to the Purchaser, effective concurrently with the initial Purchase hereunder, all right, title and interest of such Originating Entity in and to each Special Account, together with each lock-box related thereto and all agreements between such Originating Entity and the applicable Special Account Bank. The Seller hereby authorizes the Purchaser and its assigns to take, to the extent permitted by applicable law, any and all steps in the Seller’s or any other Originating Entity’s name (which power, in the case of each Transferring Affiliate, the Seller is authorized to grant pursuant to authority granted to the Seller under the Transferring Affiliate Letter) and on behalf of the Seller and such Originating Entity necessary or desirable, in the determination of the Purchaser or such assign, to collect all amounts due under any and all Receivables, including, without limitation, endorsing the Seller’s or such Originating Entity’s name on checks and other instruments representing Collections and enforcing such Receivables and the related Contracts; provided, however, that neither the Purchaser 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 payment of amounts due or to become due to the Seller or any Transferring Affiliate in respect of such Receivables or Related Security directly to either the

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Intermediate Concentration Account or the Concentration Account or to the Purchaser, the Purchaser’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.

SECTION 6.4. Responsibilities of the Seller. Anything herein to the contrary notwithstanding, the Seller shall, and/or shall cause each other Originating Entity to, (i) perform all of such Person’s obligations under the Contracts related to the Receivables to the same extent as if interests in such Receivables had not been sold hereunder and under the Transferring Affiliate Letter, and the exercise by the Purchaser of its rights hereunder and under the Transferring Affiliate Letter shall not relieve 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 Purchaser nor any of its assignees 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.

SECTION 6.5. Reports. On or prior to each Settlement Date, the Seller shall prepare and forward to the Purchaser a report setting forth the following with respect to the immediately preceding calendar month: (i) the aggregate Outstanding Balance of Receivables included in the Purchases occurring during such month, (ii) the aggregate Purchase Price payable to the Seller in respect of such Purchases, specifying the Purchase Price Percentage in effect for such month and the aggregate Purchase Price Credits deducted in calculating such aggregate Purchase Price, (iii) the aggregate amount of funds received by the Seller during such month and the aggregate amount of any amounts drawn under any Letters of Credit, in each case which are to be applied toward the aggregate Purchase Price owing for such month pursuant to Section 2.2(d), (iv) the increase or decrease in the amount outstanding under the Subordinated Note as of the end of such month after giving effect to the application of funds toward the aggregate Purchase Price, (v) the amount of any capital contribution made by the Seller to the Purchaser as of the end of such month and (vi) such other information concerning the Receivables as the Purchaser may reasonably request. Promptly following any request therefor by the Purchaser, the Seller shall prepare and provide to the Purchaser a listing by Obligor of all Receivables together with an aging of such Receivables.

ARTICLE VII

SELLER DEFAULTS

SECTION 7.1. Seller Defaults. The occurrence of any one or more of the following events shall constitute a Seller Default:

(a) the Seller shall fail to make any payment or deposit to be made by it hereunder when due; or

(b) any representation, warranty, certification or statement made or deemed made by the Seller in this Agreement, by FME KGaA or FMCH under the Parent Agreement, or by the Seller, 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

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pursuant hereto or thereto, shall prove to have been incorrect in any material respect when made or deemed made; or

(c) the Seller 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 Seller Default 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 Seller Default unless a senior officer of the Seller (including, the Treasurer, any Assistant Treasurer, General Counsel or any assistant or associate general counsel of the Seller) shall have known of the occurrence of such Potential Seller Default 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), 5.2(a), 5.2(c), 5.2(d), 5.2(e), 5.2(f), 5.2(g), 5.2(h) or 6.2; 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) failure of the Seller, FME KGaA, FMCH 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 €250,000,000 (or its equivalent in any currency) was created or is governed; or the default by the Seller, FME KGaA, FMCH 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, FME KGaA, FMCH or any Transferring Affiliate greater than €250,000,000 (or its equivalent in any currency) 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, FME KGaA, FMCH or any Transferring Affiliate greater than €250,000,000 (or its equivalent in any currency) 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 Seller, any other Originating Entity, FME KGaA or FMCH; provided that, in the case of any Event of Bankruptcy relating to any Transferring Affiliate, such Event of Bankruptcy shall not constitute a Seller Default hereunder if at such time the “Percentage Factor” (as defined in the TAA) does not exceed the “Maximum Percentage Factor” (as defined in the TAA) after reducing the “Net Receivables Balance” (as defined in the TAA) by an amount equal to the aggregate Outstanding Balance of all Receivables otherwise included in the calculation of the 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

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(f) after giving effect to any Purchase hereunder, the Purchaser shall, for any reason, fail or cease to have all right, title and interest in and to all of the Receivables which are to be included in such Purchase, together with the Related Security and Collections with respect thereto, free and clear of any Adverse Claim, subject only to the interests therein of the Agent, on behalf of the Conduit Investors and the Bank Investors; or

(g) the Transferring Affiliate Letter 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 Purchaser, the Agent, any Conduit Investor or any Bank 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

(h) either FMCH or the Seller shall enter into any transaction or merger whereby it is not the surviving entity; or

(i) there shall have occurred any material adverse change in the operations of any of FMCH or the Seller since December 31, 2011 or any other Material Adverse Effect shall have occurred; or

(j) 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

(k) (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, 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) or a Change of Control (as defined under the TAA).

SECTION 7.2. Remedies. (a) Upon the occurrence of any Seller Default, the Purchaser 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.

ARTICLE VIII

INDEMNIFICATION; EXPENSES

SECTION 8.1. Indemnities by the Seller. Without limiting any other rights which the Purchaser may have hereunder or under applicable law, the Seller hereby agrees to

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indemnify the Purchaser and any successors and permitted assigns (including, without limitation, the Conduit Investors, the Bank Investors, the Agent, the Administrative Agents, the Collateral Agents, the Liquidity Providers and the Credit Support Providers) 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 any Liquidity Provider, any Credit Support Provider, the Agent, any Administrative Agent, any Collateral Agent or the Purchaser, 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 Seller or any Parent Group Member (including any Parent Group Member, in its capacity as the Collection Agent) and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise arising out of or as a result of this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Purchaser and its assigns of Receivables and Related Assets 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 Seller 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 Parent Agreement, the Transferring Affiliate Letter, 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 to vest and maintain vested in the Purchaser a first priority ownership interest in the Affected Assets 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

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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 (if a Parent Group Member or designee thereof) to perform its duties or obligations in accordance with the provisions of the TAA; 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 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;

(xi)the commingling by the Seller, any other Originating Entity or the Collection Agent (if a Parent Group Member or designee thereof) of Collections of Receivables at any time with other funds;

(xii)any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Transfers by the Seller or any other Originating Entity, the ownership of any Receivable, Related Security or Contract or any interest therein;

(xiii)the failure of any Special Account Bank or any Designated Account Agent 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 Seller, any Originating Entity or the Agent (to the extent such Person is entitled to give such instructions in accordance with the terms of the Transaction Documents) whether by reason of the exercise of set-off rights or otherwise;

(xiv)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 Seller to qualify to do business or file any notice of business activity report or any similar report;

(xv)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

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set-aside any such transfer or any transfer of any Receivable hereunder under statutory provisions or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code;

(xvi)any action taken by the Seller, any other 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 any applicable Liquidity Provider Agreement, Credit Support Agreement or the credit support furnished by any applicable Credit Support Provider to the Seller 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 Seller 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;

(xvii)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 Seller or any Parent Group Member;

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

(xix)without duplication of any amounts paid by the Seller pursuant to Section 2.3, any cancellation or voiding of a Receivable, any Contractual Adjustment, or any other event or circumstance which gives arise to a “Deemed Collection” under the TAA or a “Purchase Price Credit” under this Agreement.

SECTION 8.2. Other Costs and Expenses. (a) The Seller agrees, upon receipt of a written invoice, to pay or cause to be paid, and to save the Purchaser harmless against liability for the payment of, all reasonable out-of-pocket expenses (including, without limitation, the out-of-pocket expenses payable by the Purchaser under Section 8.4 of the TAA) or intangible, documentary or recording taxes incurred by or on behalf of the Purchaser or any other Indemnified Party (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 Purchaser’s ownership of Receivables and Related Assets with respect thereto) 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 the Purchaser’s enforcement or preservation of rights (including, without limitation, the perfection and protection of the transfers of Receivables and Related Assets under

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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.

(b) If the Seller fails to perform any of its agreements or obligations under this Agreement, following expiration of any applicable cure period, the Purchaser (or any assignee thereof) may (but shall not be required to) perform, or cause performance of, such agreement or obligation, and the reasonable expenses of the Purchaser (or any such assignee) incurred in connection therewith shall be payable by the Seller upon the Purchaser’s (or any such assignee’s) written demand therefor.

ARTICLE IX

MISCELLANEOUS

SECTION 9.1. Term of Agreement. This Agreement shall terminate on the date after the Collection Date on which (i) no further Purchases are to be made hereunder, (ii) the aggregate Outstanding Balance of Receivables conveyed to the Purchaser hereunder has been reduced to zero or written off in accordance with the Credit and Collection Policy and (iii) the Seller has paid the Purchaser all indemnities, adjustments and other amounts which may be owed to the Purchaser hereunder; provided, however, that (x) the rights and remedies of the Purchaser with respect to any representation and warranty made or deemed to be made by the Seller pursuant to this Agreement, (y) the indemnification and payment provisions of Article VII, and

(z) the agreements set forth in Section 9.9 hereof, shall be continuing and shall survive any termination of this Agreement.

SECTION 9.2. Waivers; Amendments. No failure or delay on the part of the Purchaser 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. No provision of this Agreement or the Subordinated Note may be amended, supplemented, modified or waived except in writing by the Seller, the Purchaser, the Agent and each Administrative Agent. It is expressly understood and acknowledged that the prior written consent of the Agent shall be required in order for the Purchaser to grant a consent, authorization or approval requested by the Seller hereunder, or for the Purchaser to agree to any amendment, waiver or other modification to the terms or conditions of this Agreement.

SECTION 9.3. Notices. Except as provided below, all communications and notices provided for hereunder shall be in writing (including writing delivered by way of mail, email, telecopy or other electronic transmission) and shall be given to the other party at its mailing address, email address, or telecopy number set forth below or at such other mailing address, email 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 email or telecopy when such telecopy is transmitted to the email address or telecopy number specified in this Section 9.3 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

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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 9.3.

If to the Purchaser:

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 Seller:

National Medical Care, Inc.

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

SECTION 9.4. 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 SELLER 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. The Seller 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 9.4 shall affect the right of the Purchaser to bring any action or proceeding against the Seller or any of its 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

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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 Seller hereby appoints 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 the Purchaser or any of its assignees.

SECTION 9.5. Severability; Counterparts; Electronic Signatures. 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. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same instrument. The words “execution,” signed,” “signature,” and words of like import in this Agreement or in any other certificate, agreement, exhibit or document related to this Agreement or the other Transaction Documents shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act , any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code, and any other applicable law. 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 9.6. Successors and Assigns. This Agreement shall be binding on the parties hereto and their respective successors and assigns; provided, however, that the Seller may not 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 of the Purchaser and the Agent. The Purchaser 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 Seller. Without limiting the foregoing, the Seller acknowledges that the Purchaser, pursuant to the TAA, shall assign to the Agent, on behalf of the Conduit Investors or the Bank Investors, as the case

41


may be, all of its rights, remedies, powers and privileges hereunder and that each of the Agent, the Conduit Investors and such Bank Investors may further assign such rights, remedies, powers and privileges to the extent permitted in the TAA. The Seller agrees that the Agent, as the assignee of the Purchaser, shall, subject to the terms of the TAA, have the right to enforce this Agreement and to exercise directly all of the Purchaser’s rights and remedies under this Agreement (including, without limitation, the right to give or withhold any consents or approvals of the Purchaser to be given or withheld hereunder) and the Seller agrees to cooperate fully with the Agent in the exercise of such rights and remedies. The Seller further agrees to give to the Agent copies of all notices, reports and other documents it is required to give to the Purchaser hereunder and to permit the Agent the rights of inspection and audit granted to the Purchaser hereunder. In addition, the Seller agrees that to the extent the Purchaser is herein permitted to take any action or to provide any information or report, the Agent may similarly so direct and require (with or without the concurrence of the Purchaser) the Seller to take such action or to provide such information or report.

SECTION 9.7. Waiver of Confidentiality. The Seller hereby consents to the disclosure of any non-public information with respect to it received by the Purchaser, any Conduit Investor, the Agent, any Bank Investor or any Administrative Agent to any of the Purchaser, any Conduit Investor, the Agent, any nationally recognized rating agency rating any Conduit Investor’s Commercial Paper, 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 or the TAA.

SECTION 9.8. Confidentiality Agreement. The Seller hereby agrees that it will not disclose, and will cause each Parent Group Member to refrain from disclosing, the contents of this Agreement or any other proprietary or confidential information of the Purchaser, any Conduit Investor, the Agent, any Administrative Agent, any Collateral Agent, any Liquidity Provider or any Bank Investor to any other Person except (i) its auditors and attorneys, employees or financial advisors (other than any commercial bank) and any nationally recognized rating agency provided such auditors, attorneys, employees financial advisors or rating agencies are informed of the highly confidential nature of such information or (ii) following notice thereof to the Agent, as otherwise required by applicable law (including the federal securities laws) or order of a court of competent jurisdiction.

SECTION 9.9. Bankruptcy Petitions. (a) The Seller 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 Seller will cause each Parent Group Member to not, institute against, or join any other Person in instituting against, any 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 or under the laws of Canada or any province or territory of Canada. For purposes of the foregoing, the term "Conduit Investor" shall include each party identified as a Conduit Investor for purposes of Section 10.9 of the TAA. The provisions of this Section shall survive the termination of this Agreement.

(b) The Seller hereby covenants and agrees that, prior to the date which is one year and one day after this Agreement shall have terminated in accordance with its terms, it will

42


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.

SECTION 9.10. Purchase Termination. The Seller’s obligation to sell, transfer, assigns and otherwise convey Receivables and Related Assets to the Purchaser hereunder may be terminated at any time by the Seller by giving written notice thereof to Purchaser and the Agent of the Seller’s election to discontinue Purchases hereunder, in which event the Purchase Termination Date (as defined in the TAA) shall thereafter occur on the date specified therefor by the Seller in such notice, but in any event not less than 60 days after the Agent’s receipt of such notice.

SECTION 9.11. Subordination. The Seller agrees that any indebtedness, obligation or claim, it may from time to time hold or otherwise have (including, without limitation any obligation or claim arising in connection with the Revolving Loans) against the Purchaser or any assets or properties of the Purchaser, whether arising hereunder or otherwise existing, shall be subordinate in right of payment to the prior payment in full of any indebtedness or obligation of the Purchaser owing to the Agent, any Administrative Agent, any Conduit Investor or any Bank Investor under the TAA. The subordination provision contained herein is for the direct benefit of, and may be enforced by, the Agent, any Administrative Agent, any Conduit Investor, any Bank Investor and/or any of their respective assignees under the TAA.

SECTION 9.12. Characterization of the Transactions Contemplated by the Agreement. (a) It is the intention of the parties that each Purchase hereunder 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 this Agreement should be deemed a financing and not a sale or such sale shall for any reason be ineffective or unenforceable (any of the foregoing a “Recharacterization”), 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 now or hereafter arising that are sold to the Purchaser pursuant to this Agreement, together with the Related Assets with respect thereto, and that this Agreement shall constitute a security agreement under applicable law.

(b) In the case of any Recharacterization, each of the Seller and the Purchaser represents and warrants that each remittance of Collections by the Seller to the Purchaser hereunder will have been (i) in payment of a debt incurred by the Seller in the ordinary course of business or financial affairs of the Seller and the Purchaser and (ii) made in the ordinary course of business or financial affairs of the Seller and the Purchaser. In addition, to further protect the interests of the Purchaser and its assigns, the Seller hereby grants to the Purchaser (for the benefit of itself and the other Indemnified Parties) a first priority perfected and continuing security interest in all of the Seller’s right, title and interest in, to and under the Receivables arising after the Termination Date, together with the Related Assets with respect thereto. The security interests deemed granted and granted pursuant to the two preceding sentences shall secure all obligations of the Seller hereunder and under the other Transaction Documents

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(including, without limitation, all indemnification and other obligations of the Seller under Article VIII of this Agreement). The Seller hereby assigns to the Purchaser all of its rights and remedies under the Transferring Affiliate Letter (and all instruments, documents and agreements executed in connection therewith) with respect to the Receivables and the Related Assets and with respect to any obligations thereunder of any Originating Entity with respect to the Receivables and the Related Assets (including, without limitation, all security interests granted by the Transferring Affiliates under the Transferring Affiliate Letter and all indemnification obligations of the Transferring Affiliates under Section 17 of the Transferring Affiliate Letter).

SECTION 9.13. Perfection Representations. The Perfection Representations shall be a part of the Agreement for all purposes. The Seller hereby makes the representations and warranties set forth in the Perfection Representations as of the date of each sale of Receivables hereunder. The Perfection Representations shall survive termination of this Agreement.

[Remainder of page intentionally left blank]

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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amended and Restated Receivables Purchase Agreement as of the date first written above.

NMC FUNDING CORPORATION,

as Purchaser

By:

Name:

Title:

NATIONAL MEDICAL CARE, INC.,

as Seller

By:

Name:

Title:

Signature Page to Third Amended and Restated Receivables Purchase Agreement

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EXHIBIT A

[RESERVED]

46


EXHIBIT B

[RESERVED]

47


EXHIBIT C

[RESERVED]

48


EXHIBIT D

to

THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT

FORM OF SPECIAL ACCOUNT LETTER

49


EXHIBIT E

to

THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT

FORM OF SUBORDINATED NOTE

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EXHIBIT F

To

THIRD AMENDED AND RESTATED

RECEIVABLES PURCHASE AGREEMENT

LIST OF ACTIONS AND SUITS

SECTIONS 3.1(g) and 3.1(k)(iv)

3.1(g)(i)Seller:See below under Legal and Regulatory Matters

3.1(g)(ii)Affiliates:The “Legal and Regulatory Matters” section of the most recent annual report on Form 20-F or report on Form 6-K for the quarter, as applicable, and such other Form 6-Ks referencing therein any actions, suits or proceedings, each as filed by Fresenius Medical Care AG & Co. KGaA (“FME KGaA” or the “Company”) with the U.S. Securities and Exchange Commission (“SEC”) under the Securities Exchange Act of 1934 is hereby incorporated by reference as if fully set forth herein.

Such filings can be found on the SEC website at the following link: https://www.sec.gov/cgi- bin/browse-edgar?action=getcompany&CIK=0001333141&owner=exclude&count=40&hidefilings=0

The following are excerpts from the report on Form 6-K of FME KGaA filed with the Securities and Exchange Commission on July 30, 2021 for the period ending June 30, 2021 (in thousands, except share and per share data):

Legal and Regulatory Matters

The Company is routinely involved in claims, lawsuits, regulatory and tax audits, investigations and other legal matters arising, for the most part, in the ordinary course of its business of providing health care services and products. Legal matters that the Company currently deems to be material or noteworthy are described below. The Company records its litigation reserves for certain legal proceedings and regulatory matters to the extent that the Company determines an unfavorable outcome is probable and the amount of loss can be reasonably estimated. For the other matters described below, the Company believes that the loss probability is remote and/or the loss or range of possible losses cannot be reasonably estimated at this time. The outcome of litigation and other legal matters is always difficult to predict accurately and outcomes that are not consistent with the Company’s view of the merits can occur. The Company believes that it has valid defenses to the legal matters pending against it and is defending itself vigorously. Nevertheless, it is possible that the resolution of one or more of the legal matters currently pending or threatened could have a material adverse effect on its business, results of operations and financial condition.

Beginning in 2012, the Company received certain communications alleging conduct in countries outside the United States that might violate the Foreign Corrupt Practices Act or other anti-bribery laws. The Company conducted investigations with the assistance of outside counsel and, in a continuing dialogue, advised the Securities and Exchange Commission (“SEC”) and the United States Department of Justice (“DOJ”) about these investigations. The DOJ and the SEC also conducted their own investigations, in which the Company cooperated. In the course of this dialogue, the Company identified and reported to the DOJ and the SEC, and took remedial actions with respect to, conduct that resulted in the DOJ and the SEC seeking monetary penalties including disgorgement of profits and other remedies. This conduct revolved principally around the Company's products business in countries outside the United States.

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On March 29, 2019, the Company entered into a non-prosecution agreement (“NPA”) with the DOJ and a separate agreement with the SEC intended to resolve fully and finally the U.S. government allegations against the Company arising from the investigations. Both agreements included terms starting August 2, 2019. The DOJ NPA is scheduled to terminate on August 2, 2022 and the dismissal of the SEC Order is scheduled to occur on November 30, 2022. The Company paid a combined total in penalties and disgorgement of approximately $231,715 (€205,854) to the DOJ and the SEC in connection with these agreements. The entire amount paid to the DOJ and the SEC was reserved for in charges that the Company recorded in 2017 and 2018 and announced in 2018. As part of the resolution, the Company agreed to certain self-reporting obligations and to retain an independent compliance monitor. Due to COVID-19 pandemic restrictions, the monitorship program faced certain delays, but the Company is working to have all its obligations under the resolution with the DOJ and SEC completed in 2022.

In 2015, the Company self-reported to the German prosecutor conduct with a potential nexus to Germany and continues to cooperate with government authorities in Germany in their review of the conduct that prompted the Company's and United States government investigations.

Since 2012, the Company has made and continues to make further significant investments in its compliance and financial controls and in its compliance, legal and financial organizations. The Company's remedial actions included separation from those employees responsible for the above-mentioned conduct. The Company is dealing with post-FCPA review matters on various levels. The Company continues to be fully committed to compliance with the FCPA and other applicable anti-bribery laws.

On October 30, 2020, Mexico’s primary social security and health care agency filed a civil complaint in the United States District Court for the District of Massachusetts (Boston) asserting claims for common law fraud against the Company and FMCH. 2020 Civ. 11927-IT (E. D. Mass.). The allegations of the complaint rely on the Company’s resolution under the FCPA. After both FMCH and the Company moved to dismiss the complaint, the plaintiff moved on June 23, 2021 to dismiss the complaint voluntarily without prejudice. The court granted plaintiff’s motion the same day.

FMCH's insurers agreed to the settlement in 2017 of personal injury litigation related to FMCH's Granuflo® and Naturalyte® acid concentrate products and funded $220,000 (€179,284) of the settlement fund under a reciprocal reservation of rights. FMCH accrued a net expense of $60,000 (€48,896) in connection with the settlement, including legal fees and other anticipated costs. Following the settlement, FMCH's insurers in the AIG group initiated litigation against FMCH seeking to be indemnified by FMCH for their $220,000 (€179,284) outlay and FMCH initiated litigation against the AIG group to recover defense and indemnification costs FMCH had borne. National Union Fire Insurance v. Fresenius Medical Care, 2016 Index No. 653108 (Supreme Court of New York for New York County).

Discovery in the litigation is complete. The AIG group abandoned certain of its coverage claims and submitted expert reports on damages asserting that, if AIG prevails on all its remaining claims, it should recover $60,000 (€48,896). FMCH contests all of AIG’s claims and submitted expert reports supporting rights to recover $108,000 (€88,012) from AIG, in addition to the $220,000 (€179,284) already funded. A trial date has not been set in the matter.

In August 2014, FMCH received a subpoena from the United States Attorney’s Office (“USAO”) for the District of Maryland inquiring into FMCH's contractual arrangements with hospitals and physicians involving contracts relating to the management of in-patient acute dialysis services. On August 27, 2020, after the USAO declined to pursue the matter by intervening, the United States District Court for Maryland unsealed a 2014 relator’s qui tam complaint that gave rise to the investigation. United States ex rel. Martin Flanagan v. Fresenius Medical Care Holdings, Inc., 2014 Civ. 00665 (D. Maryland). The relator has served the complaint and litigation is proceeding. In response to FMCH’s motion to dismiss the unsealed

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complaint, the relator filed an amended complaint on February 5, 2021 making broad allegations about financial relationships between FMCH and nephrologists.

In July 2015, the Attorney General for Hawaii issued a civil complaint under the Hawaii False Claims Act alleging a conspiracy pursuant to which certain Liberty Dialysis subsidiaries of FMCH overbilled Hawaii Medicaid for Liberty's Epogen® administrations to Hawaii Medicaid patients during the period from 2006 through 2010, prior to the time of FMCH's acquisition of Liberty. Hawaii v. Liberty Dialysis—Hawaii, LLC et al., Case No. 15-1-1357-07 (Hawaii 1st Circuit). The State alleges that Liberty acted unlawfully by relying on incorrect and unauthorized billing guidance provided to Liberty by Xerox State Healthcare LLC, which acted as Hawaii's contracted administrator for its Medicaid program reimbursement operations during the relevant period. With discovery concluded, the State has specified that its demands for relief relate to $7,700 (€6,275) in overpayments on approximately twenty thousand “claims” submitted by Liberty. After prevailing on motions by Xerox to preclude it from doing so, FMCH is pursuing third-party claims for contribution and indemnification against Xerox. The State's False Claims Act complaint was filed after Liberty initiated an administrative action challenging the State's recoupment of alleged overpayments from sums currently owed to Liberty. The civil litigation and administrative action are proceeding in parallel. Trial in the civil litigation has been postponed because of COVID-19-related administrative issues and has been rescheduled for January 2022.

On August 31, 2015, FMCH received a subpoena under the False Claims Act from the United States Attorney for the District of Colorado (Denver) inquiring into FMCH’s participation in and management of dialysis facility joint ventures in which physicians are partners. FMCH continues to cooperate in the Denver USAO investigation, which has come to focus on purchases and sales of minority interests in ongoing outpatient facilities between FMCH and physician groups.

On November 25, 2015, FMCH received a subpoena under the False Claims Act from the United States Attorney for the Eastern District of New York (Brooklyn) also inquiring into FMCH’s involvement in certain dialysis facility joint ventures in New York. On September 26, 2018, the Brooklyn USAO declined to intervene on the qui tam complaint filed under seal in 2014 that gave rise to this investigation. CKD Project LLC v. Fresenius Medical Care, 2014 Civ. 06646 (E.D.N.Y. November 12, 2014). The court unsealed the complaint, allowing the relator to proceed on its own. On January 27, 2021, the Magistrate Judge recommended dismissal of the complaint with prejudice and without leave to amend. The relator is appealing the Magistrate Judge’s recommendation.

Beginning October 6, 2015, the United States Attorney for the Eastern District of New York (Brooklyn) has led an investigation, through subpoenas issued under the False Claims Act, of utilization and invoicing by FMCH’s subsidiary Azura Vascular Care for a period beginning after FMCH’s acquisition of American Access Care LLC ("AAC") in October 2011. FMCH is cooperating in the Brooklyn USAO investigation. The Brooklyn USAO has indicated that its investigation is nationwide in scope and is focused on whether certain access procedures performed at Azura facilities were medically unnecessary and whether certain physician assistants employed by Azura exceeded their permissible scope of practice. Allegations against AAC arising in districts in Connecticut, Florida and Rhode Island relating to utilization and invoicing were settled in 2015.

On November 18, 2016, FMCH received a subpoena under the False Claims Act from the United States Attorney for the Eastern District of New York (Brooklyn) seeking documents and information relating to the operations of Shiel Medical Laboratory, Inc. (“Shiel”), which FMCH acquired in October 2013. In the course of cooperating in the investigation and preparing to respond to the subpoena, FMCH identified falsifications and misrepresentations in documents submitted by a Shiel salesperson that relate to the integrity of certain invoices submitted by Shiel for laboratory testing for patients in long term care facilities. On February 21, 2017, FMCH terminated the employee and notified the United States Attorney of the termination and its circumstances. The terminated employee's conduct is expected to result in demands for

53


FMCH to refund overpayments and to pay related penalties under applicable laws, but the monetary value of such payment demands cannot yet be reasonably estimated. FMCH contends that, under the asset sale provisions of its 2013 Shiel acquisition, it is not responsible for misconduct by the terminated employee or other Shiel employees prior to the date of the acquisition. The Brooklyn USAO continues to investigate a range of issues involving Shiel, including allegations of improper compensation (kickbacks) to physicians, and has disclosed that multiple sealed qui tam complaints underlie the investigation.

On December 12, 2017, FMCH sold to Quest Diagnostics certain Shiel operations that are the subject of this Brooklyn subpoena, including the misconduct reported to the United States Attorney. Under the Quest Diagnostics sale agreement, FMCH retains responsibility for responding to the Brooklyn investigation and for liabilities arising from conduct occurring after its 2013 acquisition of Shiel and prior to its sale of Shiel to Quest Diagnostics. FMCH is cooperating in the investigation.

In May 2017, the United States Attorney for the Middle District of Tennessee (Nashville) issued identical subpoenas to FMCH and two subsidiaries under the False Claims Act concerning FMCH's retail pharmaceutical business. The subpoenas, and the subsequent investigation in which FMCH cooperated, were apparently predicated on but were not limited to a complaint filed on November 6, 2015 by two former employees. United States ex rel. Keasler et al. v. Fresenius Medical Care Rx, LLC, 03:15-Civ-01183 (M.D. Tenn. 2015). On July 9, 2021, the United States declined to intervene in the matter. On July 13, 2021, the Court allowed the relators’ complaint to be unsealed. The relators may elect to serve the complaint.

On March 12, 2018, Vifor Fresenius Medical Care Renal Pharma Ltd. and Vifor Fresenius Medical Care Renal Pharma France S.A.S. (collectively, “VFMCRP”) (see note 3), filed a complaint for patent infringement against Lupin Atlantis Holdings SA and Lupin Pharmaceuticals Inc. (collectively, “Lupin”), and Teva Pharmaceuticals USA, Inc. (“Teva”) in the U.S. District Court for the District of Delaware (Case 1:18-cv-00390-MN, “first complaint”). The patent infringement action is in response to Lupin and Teva’s filings of Abbreviated New Drug Applications ("ANDA") with the U.S. Food and Drug Administration ("FDA") for generic versions of Velphoro®. Velphoro® is protected by patents listed in the FDA’s Approved Drug Products with Therapeutic Equivalence Evaluations, also known as the Orange Book. The complaint was filed within the 45-day period provided for under the Hatch-Waxman legislation, and triggered a stay of FDA approval of the ANDAs for 30 months (specifically, up to July 29, 2020 for Lupin’s ANDA; and August 6, 2020 for Teva’s ANDA. In response to another ANDA being filed for a generic Velphoro®, VFMCRP filed a complaint for patent infringement against Annora Pharma Private Ltd., and Hetero Labs Ltd. (collectively, “Annora”), in the U.S. District Court for the District of Delaware on December 17, 2018. The case was settled among the parties, thus terminating the court action on August 4, 2020. On May 26, 2020, VFMCRP filed a further complaint for patent infringement against Lupin in the U.S. District Court for the District of Delaware (Case No. 1:20-cv-00697-MN) in response to Lupin’s ANDA for a generic version of Velphoro® and on the basis of a newly listed patent in the Orange Book. On July 6, 2020, VFMCRP filed an additional complaint for patent infringement against Lupin and Teva in the U.S. District Court for the District of Delaware (Case No. 1:20-cv-00911-MN, “second complaint”) in response to the companies’ ANDA for generic versions of Velphoro® and on the basis of two newly listed patents in the Orange Book. All cases involving Lupin as defendant were settled among the parties, thus terminating the corresponding court actions on December 18, 2020. In relation to the remaining pending cases and the defendant Teva, trial took place for the first complaint between January 19 and 22, 2021. Another patent newly listed in the Orange Book was added to the second complaint on June 23, 2021. Trial is scheduled for the second complaint for June 2022.

On December 17, 2018, FMCH was served with a subpoena under the False Claims Act from the United States Attorney for the District of Colorado (Denver) as part of an investigation of allegations against DaVita, Inc. involving transactions between FMCH and DaVita. The subject transactions include sales and purchases of dialysis facilities, dialysis-related products and pharmaceuticals, including dialysis machines and dialyzers, and contracts for certain administrative services. FMCH is cooperating in the investigation.

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On June 28, 2019, certain FMCH subsidiaries filed a complaint against the United States seeking to recover monies owed to them by the United States Department of Defense under the Tricare program, and to preclude Tricare from recouping monies previously paid. Bio-Medical Applications of Georgia, Inc., et al.v. United States, CA 19-947, United States Court of Federal Claims. Tricare provides reimbursement for dialysis treatments and other medical care provided to members of the military services, their dependents and retirees. The litigation challenges unpublished administrative actions by Tricare administrators reducing the rate of compensation paid for dialysis treatments provided to Tricare beneficiaries based on a recasting or “crosswalking” of codes used and followed in invoicing without objection for many years. Tricare administrators have acknowledged the unpublished administrative action and declined to change or abandon it. On July 8, 2020, the U.S. government filed its answer (and confirmed their position). The parties will proceed to discovery. The court has not yet set a date for trial in this matter. FMCH has imposed a constraint on revenue otherwise recognized from the Tricare program that it believes, in consideration of facts currently known, sufficient to account for the risk of this litigation.

On August 21, 2020, FMCH was served with a subpoena from the United States Attorney for the District of Massachusetts requesting information and documents related to urgent care centers that FMCH owned, operated, or controlled as part of its ChoiceOne and Medspring urgent care operations prior to its divestiture of and exit from that line of business in 2018. The subpoena appears to be related to an ongoing investigation of alleged upcoding in the urgent care industry, which has resulted in certain published settlements under the federal False Claims Act. FMCH is cooperating in the investigation.

On March 25, 2021, FMCH received a grand jury subpoena issued from the United States District Court for the Northern District of Texas (Dallas). The subpoena seeks documents comprising communications between employees of FMCH and DaVita and partially overlaps in content the 2018 Denver subpoena. The Dallas subpoena is part of a separate investigation by the Anti-Trust Division of the Department of Justice into possible employee “no poaching” and similar agreements to refrain from competition and is related to the indictment in United States v. Surgical Care Affiliates, 3:2021-Cr-0011 (N.D. Tex.) and United States v. DaVita, Inc. et al., 1:21-cr00229 (D.Col.). The unnamed co-conspirators described in the Surgical Care Affiliates and DaVita indictments do not include FMCH, the Company, or any of their employees. FMCH is cooperating in the investigation.

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, insurance plans and suppliers, 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 marketing and distribution of such products, the operation of manufacturing facilities, laboratories, dialysis clinics and other health care facilities, and environmental and occupational health and safety. With respect to its development, manufacture, marketing and distribution of medical products, if such compliance is not maintained, the Company could be subject to significant adverse regulatory actions by the FDA and comparable regulatory authorities outside the U.S. These regulatory actions could include warning letters or other enforcement notices from the FDA, and/or comparable foreign regulatory authority which may require the Company to expend significant time and resources in order to implement appropriate corrective actions. If the Company does not address matters raised in warning letters or other enforcement notices to the satisfaction of the FDA and/or comparable regulatory authorities outside the U.S., these regulatory authorities could take additional actions, including product recalls, injunctions against the distribution of products or operation of manufacturing plants, civil penalties, seizures of the Company’s products and/or criminal prosecution. FMCH completed remediation efforts with respect to one pending FDA warning letter and is awaiting confirmation as to whether the letter is now closed. The Company must also comply with the laws of the United States, including the federal

55


Anti-Kickback Statute, the federal False Claims Act, the federal Stark Law, the federal Civil Monetary Penalties Law and the federal Foreign Corrupt Practices Act as well as 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 whistleblower actions. By virtue of this regulatory environment, the Company’s business activities and practices are subject to extensive review by regulatory authorities and private parties, and continuing audits, 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 whistleblower actions, which are initially filed under court seal.

The Company operates many facilities and handles the personal data ("PD") of its patients and beneficiaries throughout the United States and other parts of the world and engages with other business associates to help it carry out its health care activities. 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 and its business associates. On occasion, the Company or its business associates may experience a breach under the Health Insurance Portability and Accountability Act Privacy Rule and Security Rules, the EU’s General Data Protection Regulation and or other similar laws ("Data Protection Laws") when there has been impermissible use, access, or disclosure of unsecured PD or when the Company or its business associates neglect to implement the required administrative, technical and physical safeguards of its electronic systems and devices, or a data breach that results in impermissible use, access or disclosure of personal identifying information of its employees, patients and beneficiaries. On those occasions, the Company must comply with applicable breach notification requirements.

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 its employees. On occasion, the Company may identify instances where employees or other agents deliberately, recklessly or inadvertently contravene the Company’s policies or violate applicable law. The actions of such persons may subject the Company and its subsidiaries to liability under the Anti-Kickback Statute, the Stark Law, the False Claims Act, Data Protection Laws, the Health Information Technology for Economic and Clinical Health Act and the Foreign Corrupt Practices Act, among other laws and comparable state laws or laws of other countries.

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.

56


In Germany, the tax audits for the years 2006 through 2009 have been substantially completed. The German tax authorities have indicated a re-qualification of dividends received in connection with intercompany mandatorily redeemable preferred shares into fully taxable interest payments for these and subsequent years until 2013. The Company has defended its position and will avail itself of appropriate remedies. The Company is also subject to ongoing and future tax audits in the U.S., Germany and other jurisdictions in the ordinary course of business. Tax authorities routinely pursue adjustments to the Company’s tax returns and disallowances of claimed tax deductions. When appropriate, the Company defends these adjustments and disallowances and asserts its own claims. A successful tax related claim against the Company or any of its subsidiaries could have a material adverse effect upon its business, financial condition and results of operations.

Other than those individual contingent liabilities mentioned above, the current estimated amount of the Company's other known individual contingent liabilities is immaterial.

3.1(k)(iv)Tradenames:Renal Care GroupFresenius Renal Technologies

National Nephrology AssociatesFresenius Renal Therapies

TruBlu Logistics (FUSA Mfg)Fresenius Kidney Care

Fresenius Renal PharmaceuticalsFresenius USA

Merger:On September 25, 2018, American Access Care of Bucks County, LLC, American Access Care of Pittsburgh, LLC, Gynesis Healthcare of

Pennsylvania, Inc. and PD Solutions of Pennsylvania, merged into

Physicians Dialysis Company, Inc.

On September 25, 2018, Mercy Dialysis Center, Inc. merged into Bio- Medical Applications of Wisconsin, Inc.

57


EXHIBIT G

to

THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT

LOCATION OF RECORDS

58


EXHIBIT H

to

THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT

LIST OF SELLER’S SUBSIDIARIES, DIVISIONS AND TRADENAMES

SECTION 3.1(k)

Subsidiaries and Divisions [Section 3.1(k)(ii)]:

Wholly owned subsidiaries:

Bio-Medical Applications Management Company, Inc.

Bio-Medical Applications of Illinois, Inc.

Fresenius Medical Care Dialysis Services - Oregon, LLC

Fresenius Medical Care Insurance Group, LLC

Fresenius Medical Care of Illinois, LLC

Fresenius Medical Seamless Care, LLC

Fresenius Medical Care Ventures Holding Company, Inc.

Haemo-Stat, Inc.

NMC A, LLC

NMC Funding Corporation

NMC Services, Inc.

QCI Holdings, Inc.

Quality Care Dialysis Center of Vega Baja, Inc.

Renal Research Institute, LLC

Spectra Renal Research, LLC

U.S. Vascular Access Holdings, LLC

Elevate365, LLC

New Highway Realty, LLC

Netherland Realty, LLC

Muskegon New Realty, LLC

Houston Coffee Real Estate, LLC

Partially owned subsidiaries (other member is another wholly owned entity):

QualiCenters Eugene-Springfield, Ltd. (49%)

QualiCenters Inland Northwest L.L.C. (30%)

QualiCenters Salem LLC (40%)

Fresenius Seamless Care of Atlanta, LLC (4.8%)

Fresenius Seamless Care of Delaware, LLC (8.2%)

Tradenames [Section 3.1(k)(iii)]:

Seller:

Fresenius Medical Care North America

59


EXHIBIT I

to

THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT

FORM OF TRANSFERRING AFFILIATE LETTER

60


EXHIBIT J

to

THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT

LIST OF TRANSFERRING AFFILIATES, CHIEF EXECUTIVE

OFFICES OF TRANSFERRING AFFILIATES AND TRADENAMES

SECTIONS 2.7(b), 3.1(i) and 3.1(k)(iv)

3.1(i) Place of Business:

For each Transferring Affiliate, the principal place of business, chief executive office, and the offices where each Transferring Affiliate keeps substantially all its Records is 920 Winter Street, Waltham, MA 02451 and such other locations listed in Exhibit G.

Transferring Affiliate

State of Incorporation

1.

Apheresis Care Group, Inc.

Delaware

2.

Bio-Medical Applications Management Company, Inc.

Delaware

3.

Bio-Medical Applications of Alabama, Inc.

Delaware

4.

Bio-Medical Applications of Amarillo, Inc.

Delaware

5.

Bio-Medical Applications of Anacostia, Inc.

Delaware

6.

Bio-Medical Applications of Aquadilla, Inc.

Delaware

7.

Bio-Medical Applications of Arecibo, Inc.

Delaware

8.

Bio-Medical Applications of Arkansas, Inc.

Delaware

9.

Bio-Medical Applications of Bayamon, Inc.

Delaware

10.

Bio-Medical Applications of Blue Springs, Inc.

Delaware

11.

Bio-Medical Applications of Caguas, Inc.

Delaware

12.

Bio-Medical Applications of California, Inc.

Delaware

13.

Bio-Medical Applications of Camarillo, Inc.

Delaware

14.

Bio-Medical Applications of Carolina, Inc.

Delaware

15.

Bio-Medical Applications of Clinton, Inc.

Delaware

16.

Bio-Medical Applications of Columbia Heights, Inc.

Delaware

17.

Bio-Medical Applications of Connecticut, Inc.

Delaware

18.

Bio-Medical Applications of Delaware, Inc.

Delaware

19.

Bio-Medical Applications of Dover, Inc.

Delaware

20.

Bio-Medical Applications of Eureka, Inc.

Delaware

21.

Bio-Medical Applications of Fayetteville, Inc.

Delaware

22.

Bio-Medical Applications of Florida, Inc.

Delaware

23.

Bio-Medical Applications of Fremont, Inc.

Delaware

24.

Bio-Medical Applications of Fresno, Inc.

Delaware

25.

Bio-Medical Applications of Georgia, Inc.

Delaware

26.

Bio-Medical Applications of Guayama, Inc.

Delaware

27.

Bio-Medical Applications of Humacao, Inc.

Delaware

28.

Bio-Medical Applications of Illinois, Inc.

Delaware

61


Transferring Affiliate

State of Incorporation

29.

Bio-Medical Applications of Indiana, Inc.

Delaware

30.

Bio-Medical Applications of Kansas, Inc.

Delaware

31.

Bio-Medical Applications of Kentucky, Inc.

Delaware

32.

Bio-Medical Applications of Los Gatos, Inc.

Delaware

33.

Bio-Medical Applications of Louisiana, LLC

Delaware

34.

Bio-Medical Applications of Maine, Inc.

Delaware

35.

Bio-Medical Applications of Manchester, Inc.

Delaware

36.

Bio-Medical Applications of Maryland, Inc.

Delaware

37.

Bio-Medical Applications of Massachusetts, Inc.

Delaware

38.

Bio-Medical Applications of Mayaguez, Inc.

Delaware

39.

Bio-Medical Applications of Michigan, Inc.

Delaware

40.

Bio-Medical Applications of Minnesota, Inc.

Delaware

41.

Bio-Medical Applications of Mississippi, Inc.

Delaware

42.

Bio-Medical Applications of Missouri, Inc.

Delaware

43.

Bio-Medical Applications of New Hampshire, Inc.

Delaware

44.

Bio-Medical Applications of New Jersey, Inc.

Delaware

45.

Bio-Medical Applications of New Mexico, Inc.

Delaware

46.

Bio-Medical Applications of North Carolina, Inc.

Delaware

47.

Bio-Medical Applications of Northeast D.C., Inc.

Delaware

48.

Bio-Medical Applications of Ohio, Inc.

Delaware

49.

Bio-Medical Applications of Oklahoma, Inc.

Delaware

50.

Bio-Medical Applications of Pennsylvania, Inc.

Delaware

51.

Bio-Medical Applications of Ponce, Inc.

Delaware

52.

Bio-Medical Applications of Puerto Rico, Inc.

Delaware

53.

Bio-Medical Applications of Rhode Island, Inc.

Delaware

54.

Bio-Medical Applications of Rio Piedras, Inc.

Delaware

55.

Bio-Medical Applications of San German, Inc.

Delaware

56.

Bio-Medical Applications of San Juan, Inc.

Delaware

57.

Bio-Medical Applications of South Carolina, Inc.

Delaware

58.

Bio-Medical Applications of Southeast Washington, Inc.

Delaware

59.

Bio-Medical Applications of Tennessee, Inc.

Delaware

60.

Bio-Medical Applications of Texas, Inc.

Delaware

61.

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

Delaware

62.

Bio-Medical Applications of Virginia, Inc.

Delaware

63.

Bio-Medical Applications of West Virginia, Inc.

Delaware

64.

Bio-Medical Applications of Wisconsin, Inc.

Delaware

65.

Bio-Medical Applications of Wyoming, LLC

Delaware

66.

Brevard County Dialysis, LLC

Florida

67.

Clayton County Dialysis, LLC

Georgia

68.

Clermont Dialysis Center, LLC

Georgia

69.

College Park Dialysis, LLC

Georgia

70.

Columbus Area Renal Alliance, LLC

Delaware

71.

Conejo Valley Dialysis, Inc.

California

72.

Dialysis America Georgia, LLC

Delaware

62


Transferring Affiliate

State of Incorporation

73.

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

New Jersey

74.

Dialysis Centers of America - Illinois, Inc.

Illinois

75.

Dialysis Management Corporation

Texas

76.

Dialysis Services of Atlanta, Inc.

Georgia

77.

Dialysis Services of Cincinnati, Inc.

Ohio

78.

Dialysis Specialists of Marietta, Ltd.

Ohio

79.

Dialysis Specialists of Topeka, Inc.

Kansas

80.

Douglas County Dialysis, LLC

Georgia

81.

Du Page Dialysis Ltd.

Illinois

82.

Everest Healthcare Holdings, Inc.

Delaware

83.

Everest Healthcare Indiana, Inc.

Indiana

84.

Everest Healthcare Ohio, Inc.

Ohio

85.

Everest Healthcare Rhode Island, Inc.

Delaware

86.

Everest Healthcare Texas, L.P.

Delaware

87.

FMS Delaware Dialysis, LLC

Delaware

88.

FMS Philadelphia Dialysis, LLC

Delaware

89.

Fondren Dialysis Clinic, Inc.

Texas

90.

Fort Scott Regional Dialysis Center, Inc.

Missouri

91.

Four State Regional Dialysis Center, Inc.

Missouri

92.

Fresenius Kidney Care Guam, LLC

Delaware

93.

Fresenius Kidney Care Pittsburgh, LLC

Delaware

94.

Fresenius Management Services, Inc.

Delaware

95.

Fresenius Medical Care – South Texas Kidney, LLC

Delaware

96.

Fresenius Medical Care Dialysis Services Colorado, LLC

Delaware

97.

Fresenius Medical Care Dialysis Services-Oregon, LLC

Oregon

98.

Fresenius Medical Care Harston Hall, LLC

Delaware

99.

Fresenius Medical Care Holdings, Inc.

New York

100.

Fresenius Medical Care of Illinois, LLC

Delaware

101.

Fresenius Medical Care of Montana, LLC

Delaware

102.

Fresenius Medical Care Ventures, LLC

Delaware

103.

Fresenius Medical Care-OSUIM Kidney Centers, LLC

Delaware

104.

Fresenius USA Manufacturing, Inc.

Delaware

105.

Fresenius USA Marketing, Inc.

Delaware

106.

Fresenius USA, Inc.

Massachusetts

107.

Gulf Region Mobile Dialysis, Inc.

Delaware

108.

Haemo-Stat, Inc.

California

109.

Hauppauge Dialysis Center, LLC

New York

110.

Henry Dialysis Center, LLC

Georgia

111.

Holton Dialysis Clinic, LLC

Georgia

112.

Home Dialysis of Muhlenberg County, Inc.

Kentucky

113.

Homestead Artificial Kidney Center, Inc.

Florida

114.

Inland Northwest Renal Care Group, LLC

Washington

115.

Jefferson County Dialysis, Inc.

Arkansas

116.

KDCO, Inc.

Missouri

63


Transferring Affiliate

State of Incorporation

117.

Kentucky Renal Care Group, LLC

Delaware

118.

Little Rock Dialysis, Inc.

Arkansas

119.

Maumee Dialysis Services, LLC

Delaware

120.

Metro Dialysis Center - Normandy, Inc.

Missouri

121.

Metro Dialysis Center - North, Inc.

Missouri

122.

National Medical Care, Inc.

Delaware

123.

National Nephrology Associates of Texas, L.P.

Texas

124.

New York Dialysis Services, Inc.

New York

125.

NNA of Alabama, Inc.

Alabama

126.

NNA of East Orange, L.L.C.

New Jersey

127.

NNA of Georgia, Inc.

Delaware

128.

NNA of Harrison, L.L.C.

New Jersey

129.

NNA of Louisiana, LLC

Louisiana

130.

NNA of Oklahoma, Inc.

Nevada

131.

NNA of Oklahoma, L.L.C.

Oklahoma

132.

NNA of Rhode Island, Inc.

Rhode Island

133.

NNA of Toledo, Inc.

Ohio

134.

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

New Jersey

135.

NNA-Saint Barnabas, L.L.C.

New Jersey

136.

Northern New Jersey Dialysis, L.L.C.

Delaware

137.

NRA-Ada, Oklahoma, LLC

Delaware

138.

NRA-Augusta, Georgia, LLC

Georgia

139.

NRA-Bamberg, South Carolina, LLC

Tennessee

140.

NRA-Crossville, Tennessee, LLC

Tennessee

141.

NRA-Farmington, Missouri, LLC

Delaware

142.

NRA-Georgetown, Kentucky, LLC

Delaware

143.

NRA-Hogansville, Georgia, LLC

Delaware

144.

NRA-Holly Hill, South Carolina, LLC

Tennessee

145.

NRA-Hollywood, South Carolina, LLC

Delaware

146.

NRA-Inpatient Dialysis, LLC

Tennessee

147.

NRA-LaGrange, Georgia, LLC

Delaware

148.

NRA-Mt. Pleasant, South Carolina, LLC

Tennessee

149.

NRA-New Castle, Indiana, LLC

Delaware

150.

NRA-Newnan Acquisition, LLC

Tennessee

151.

NRA-Orangeburg, South Carolina, LLC

Tennessee

152.

NRA-Palmetto, Georgia, LLC

Delaware

153.

NRA-Princeton, Kentucky, LLC

Tennessee

154.

NRA-Roanoke, Alabama, LLC

Tennessee

155.

NRA-South City, Missouri, LLC

Delaware

156.

NRA-St. Louis (Home Therapy Center), Missouri, LLC

Delaware

157.

NRA-St. Louis, Missouri, LLC

Delaware

158.

NRA-Talladega, Alabama, LLC

Tennessee

159.

NRA-Valdosta (North), Georgia, LLC

Delaware

160.

NRA-Valdosta, Georgia, LLC

Delaware

64


Transferring Affiliate

State of Incorporation

161.

NRA-Washington County, Missouri, LLC

Delaware

162.

NRA-Winchester, Indiana, LLC

Delaware

163.

QualiCenters Albany, Ltd.

Colorado

164.

QualiCenters Bend LLC

Colorado

165.

QualiCenters Coos Bay, Ltd.

Colorado

166.

QualiCenters Eugene-Springfield, Ltd.

Colorado

167.

QualiCenters Inland Northwest L.L.C.

Colorado

168.

QualiCenters Pueblo LLC

Colorado

169.

QualiCenters Salem LLC

Colorado

170.

RAI Care Centers of Alabama, LLC

Delaware

171.

RAI Care Centers of Florida I, LLC

Delaware

172.

RAI Care Centers of Florida II, LLC

Delaware

173.

RAI Care Centers of Georgia I, LLC

Delaware

174.

RAI Care Centers of Illinois I, LLC

Delaware

175.

RAI Care Centers of Illinois II, LLC

Delaware

176.

RAI Care Centers of Maryland I, LLC

Delaware

177.

RAI Care Centers of Michigan I, LLC

Delaware

178.

RAI Care Centers of Michigan II, LLC

Delaware

179.

RAI Care Centers of Nebraska II, LLC

Delaware

180.

RAI Care Centers of North Carolina II, LLC

Delaware

181.

RAI Care Centers of Northern California I, LLC

Delaware

182.

RAI Care Centers of Northern California II, LLC

Delaware

183.

RAI Care Centers of Oakland II, LLC

Delaware

184.

RAI Care Centers of South Carolina I, LLC

Delaware

185.

RAI Care Centers of Southern California I, LLC

Delaware

186.

RAI Care Centers of Southern California II, LLC

Delaware

187.

RAI Care Centers of Virginia I, LLC

Delaware

188.

RCG Bloomington, LLC

Delaware

189.

RCG East Texas, LLP

Delaware

190.

RCG Indiana, L.L.C.

Delaware

191.

RCG Irving, LLP

Delaware

192.

RCG Martin, LLC

Delaware

193.

RCG Memphis East, LLC

Delaware

194.

RCG Mississippi, Inc.

Delaware

195.

RCG Pensacola, LLC

Delaware

196.

RCG Robstown, LLP

Delaware

197.

RCG University Division, Inc.

Tennessee

198.

Reliant Renal Care Lapeer Home Choice, LLC

Delaware

199.

Renal Care Group, Inc.

Delaware

200.

Renal Care Group Alaska, Inc.

Alaska

201.

Renal Care Group East, Inc.

Pennsylvania

202.

Renal Care Group Maplewood, LLC

Delaware

203.

Renal Care Group Northwest, Inc.

Delaware

204.

Renal Care Group of the Midwest, Inc.

Kansas

65


Transferring Affiliate

State of Incorporation

205.

Renal Care Group of the Ozarks, LLC

Delaware

206.

Renal Care Group of the Rockies, LLC

Delaware

207.

Renal Care Group of the South, Inc.

Delaware

208.

Renal Care Group of the Southeast, Inc.

Florida

209.

Renal Care Group South New Mexico, LLC

Delaware

210.

Renal Care Group Southwest Michigan, LLC

Delaware

211.

Renal Care Group Southwest, L.P.

Delaware

212.

Renal Care Group Terre Haute, LLC

Delaware

213.

Renal Care Group Texas, Inc.

Texas

214.

Renal Care Group Toledo, LLC

Delaware

215.

Renal Care Group-Harlingen, L.P.

Delaware

216.

RenalPartners, Inc.

Delaware

217.

Renex Dialysis Clinic of Bloomfield, Inc.

New Jersey

218.

Renex Dialysis Clinic of Bridgeton, Inc.

Missouri

219.

Renex Dialysis Clinic of Creve Coeur, Inc.

Missouri

220.

Renex Dialysis Clinic of Maplewood, Inc.

Missouri

221.

Renex Dialysis Clinic of Orange, Inc.

New Jersey

222.

Renex Dialysis Clinic of Pittsburgh, Inc.

Pennsylvania

223.

Renex Dialysis Clinic of South Georgia, Inc.

Georgia

224.

Renex Dialysis Clinic of St. Louis, Inc.

Missouri

225.

Renex Dialysis Clinic of University City, Inc.

Missouri

226.

Renex Dialysis Facilities, Inc.

Mississippi

227.

Saint Louis Renal Care, LLC

Delaware

228.

San Diego Dialysis Services, Inc.

Delaware

229.

Santa Barbara Community Dialysis Center, Inc.

California

230.

Smyrna Dialysis Center, LLC

Georgia

231.

SSKG, Inc.

Illinois

232.

St. Louis Regional Dialysis Center, Inc.

Missouri

233.

STAT Dialysis Corporation

Delaware

234.

Stone Mountain Dialysis Center, LLC

Georgia

235.

Stuttgart Dialysis, LLC

Arkansas

236.

Tappahannock Dialysis Center, Inc.

Virginia

237.

Terrell Dialysis Center, L.L.C.

Delaware

238.

Warrenton Dialysis Facility, Inc.

Virginia

239.

West End Dialysis Center, Inc.

Virginia

240.

WSKC Dialysis Services, Inc.

Illinois

3.1(k)(iv)Tradenames:Renal Care GroupFresenius Renal Technologies

National Nephrology AssociatesFresenius Renal Therapies

TruBlu Logistics (FUSA Mfg)Fresenius Kidney Care

Fresenius Renal PharmaceuticalsFresenius USA

3.1(k)(iv)Merger:On September 25, 2018, American Access Care of Bucks County, LLC,

American Access Care of Pittsburgh, LLC, Gynesis Healthcare of

66


Pennsylvania, Inc. and PD Solutions of Pennsylvania, merged into

Physicians Dialysis Company, Inc.

On September 25, 2018, Mercy Dialysis Center, Inc. merged into Bio-

Medical Applications of Wisconsin, Inc.

67


EXHIBIT K

to

THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT

FORM OF ACCOUNT AGENT AGREEMENT

68


FORM OF

FOURTH AMENDED AND RESTATED PARENT AGREEMENT


EXECUTION VERSION

FOURTH AMENDED AND RESTATED PARENT AGREEMENT

This FOURTH AMENDED AND RESTATED PARENT AGREEMENT (this “Agreement”), dated as of August 11, 2021, made by FRESENIUS MEDICAL CARE HOLDINGS, INC., a New York corporation (“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, 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 THE BANK OF NOVA SCOTIA, as agent (the “Agent”) for the Investors under (and 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 Second Amended and Restated Transferring Affiliate Letter (as the same has been and may from time to time be amended, restated, supplemented or otherwise modified, the “Transferring Affiliate Letter”) dated as of the date of this Agreement 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 Third 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 the date of this Agreement 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, to NMC Funding in accordance with the terms thereof.

(3)NMC Funding has entered into that certain Eighth 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 the date of this Agreement 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.

(4)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.

(5)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, 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.

(6)NMC, the Transferring Affiliates (as such group is from time to time comprised) 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 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.

(7)FMCH and FME KGaA are parties to that certain Third Amended and Restated Parent Agreement dated as of December 20, 2018 (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 the part of such Transferring Affiliate to be performed and observed under the Transferring Affiliate Letter, and (iii) 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) and (iii) 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”).

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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.

Reference is made to the obligations of Parent Group Members under: (i) Sections 3.1(bb), 3.3(l), 5.1(o), 5.2(k), 5.3(i) and 5.4(e) of the TAA; (ii) any similar provisions under the Transaction Documents, and (iii) any general covenant to comply with laws, to the extent such covenant would include laws specifically described in any of the foregoing provisions (collectively, the “Sanctions Provisions”). Notwithstanding anything contained herein to the contrary, the obligations and corresponding representations and warranties of FME KGaA under this Agreement to cause any Parent Group Member to comply with any Sanctions Provision shall be limited to the extent that such compliance by FME KGaA with such obligation would expose any Person or any director, officer or employee thereof to any liability under EU Regulation (EC) 2271/96 or Section 7 of the German Foreign Trade Regulation.

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 ownership interest or 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 collection from or disposition of any Receivable or Related Security or any interest therein;

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(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 ownership interest or 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 ownership interest or 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 ownership interest or security interest that NMC Funding, any Investor, any Administrative Agent or the Agent hereafter acquires, whether or not such claim, 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

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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.

(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

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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, 2020, 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 GAAP (as defined in the TAA), and since December 31, 2020, 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 GAAP (as defined in the TAA), 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.

(l)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

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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 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 AG Wirtschaftsprüfungsgesellschaft, PricewaterhouseCoopers GmbH Wirtschaftsprüfungsgesellschaft, or such 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 Subsidiaries as of the end of such quarter and the related company-prepared consolidated statements of income and retained earnings for such quarterly period

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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 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, 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 otherwise stated 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 debt ratings, if any, a written certification of its public 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.

(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.

(c)If not otherwise described in the consolidated financial statements or in the other materials and information provided pursuant to Section 6(a)(iv) of this Agreement or in Section 5.01(a) of the TAA, for so long as the FME KGaA Credit Facility contains a requirement

8


to provide a written summary of material changes in GAAP (which term, as used in this Agreement, shall have the meaning assigned to it in the TAA) to the administrative agent and lenders thereunder, FME KGaA shall provide a written summary of material changes in (x) GAAP or in the consistent application thereof to the extent that either affects the numeric value of any financial ratio or requirement herein or in any other Transaction Document and (y) accounting policies or financial reporting practices in connection with the preparation of consolidated financial statements or other materials and information provided pursuant to Section 6(a)(iv) of this 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 writing delivered by way of mail, email, telecopier, telegraphic or cable communication) and mailed, emailed, 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: Christian Wagner, (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 other party. All such notices and other communications shall, when mailed, emailed, telecopied, telegraphed or cabled, be effective when deposited in the mails, emailed, 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.

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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 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.

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(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 1301 Avenue of the Americas, 42nd floor, 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 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. For purposes of the foregoing, the term "Conduit Investor" shall include each party

11


identified as a Conduit Investor for purposes of Section 10.9 of the TAA. The provisions of this Section shall survive the termination of this Agreement.

SECTION 17. Execution in Counterparts; Electronic Signatures. 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. The words “execution,” signed,” “signature,” and words of like import in this Agreement or in any other certificate, agreement, exhibit or document related to this Agreement shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code, and any other applicable law.

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]

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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

represented by

Fresenius Medical Care Management AG
(General Partner)

By:

/s/ Rice Powell

Name:

Rice Powell

Title:

Member of the Management Board

By:

/s/ Helen Giza

Name:

Helen Giza

Title:

Member of the Management Board

FRESENIUS MEDICAL CARE HOLDINGS, INC.

By:

/s/ Mark Fawcett

Name:

Mark Fawcett

Title:

Vice President & Treasurer

Accepted and Agreed as of the date first above written:

NMC FUNDING CORPORATION

By:

Name:

Title:

THE BANK OF NOVA SCOTIA,

as Agent

By:

Name:

Title:

Signature Page to Fourth Amended and Restated
Parent Agreement


EXHIBIT Q

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

LIST OF TRANSFERRING AFFILIATES

Transferring Affiliate

    

State of
Incorporation

1.

Apheresis Care Group, Inc.

Delaware

2.

Bio-Medical Applications Management Company, Inc.

Delaware

3.

Bio-Medical Applications of Alabama, Inc.

Delaware

4.

Bio-Medical Applications of Amarillo, Inc.

Delaware

5.

Bio-Medical Applications of Anacostia, Inc.

Delaware

6.

Bio-Medical Applications of Aquadilla, Inc.

Delaware

7.

Bio-Medical Applications of Arecibo, Inc.

Delaware

8.

Bio-Medical Applications of Arkansas, Inc.

Delaware

9.

Bio-Medical Applications of Bayamon, Inc.

Delaware

10.

Bio-Medical Applications of Blue Springs, Inc.

Delaware

11.

Bio-Medical Applications of Caguas, Inc.

Delaware

12.

Bio-Medical Applications of California, Inc.

Delaware

13.

Bio-Medical Applications of Camarillo, Inc.

Delaware

14.

Bio-Medical Applications of Carolina, Inc.

Delaware

15.

Bio-Medical Applications of Clinton, Inc.

Delaware

16.

Bio-Medical Applications of Columbia Heights, Inc.

Delaware

17.

Bio-Medical Applications of Connecticut, Inc.

Delaware

18.

Bio-Medical Applications of Delaware, Inc.

Delaware

19.

Bio-Medical Applications of Dover, Inc.

Delaware

20.

Bio-Medical Applications of Eureka, Inc.

Delaware

21.

Bio-Medical Applications of Fayetteville, Inc.

Delaware

22.

Bio-Medical Applications of Florida, Inc.

Delaware

23.

Bio-Medical Applications of Fremont, Inc.

Delaware

24.

Bio-Medical Applications of Fresno, Inc.

Delaware

25.

Bio-Medical Applications of Georgia, Inc.

Delaware

26.

Bio-Medical Applications of Guayama, Inc.

Delaware

27.

Bio-Medical Applications of Humacao, Inc.

Delaware

28.

Bio-Medical Applications of Illinois, Inc.

Delaware

29.

Bio-Medical Applications of Indiana, Inc.

Delaware

30.

Bio-Medical Applications of Kansas, Inc.

Delaware

31.

Bio-Medical Applications of Kentucky, Inc.

Delaware

32.

Bio-Medical Applications of Los Gatos, Inc.

Delaware

33.

Bio-Medical Applications of Louisiana, LLC

Delaware

34.

Bio-Medical Applications of Maine, Inc.

Delaware

Q-1


Transferring Affiliate

    

State of
Incorporation

35.

Bio-Medical Applications of Manchester, Inc.

Delaware

36.

Bio-Medical Applications of Maryland, Inc.

Delaware

37.

Bio-Medical Applications of Massachusetts, Inc.

Delaware

38.

Bio-Medical Applications of Mayaguez, Inc.

Delaware

39.

Bio-Medical Applications of Michigan, Inc.

Delaware

40.

Bio-Medical Applications of Minnesota, Inc.

Delaware

41.

Bio-Medical Applications of Mississippi, Inc.

Delaware

42.

Bio-Medical Applications of Missouri, Inc.

Delaware

43.

Bio-Medical Applications of New Hampshire, Inc.

Delaware

44.

Bio-Medical Applications of New Jersey, Inc.

Delaware

45.

Bio-Medical Applications of New Mexico, Inc.

Delaware

46.

Bio-Medical Applications of North Carolina, Inc.

Delaware

47.

Bio-Medical Applications of Northeast D.C., Inc.

Delaware

48.

Bio-Medical Applications of Ohio, Inc.

Delaware

49.

Bio-Medical Applications of Oklahoma, Inc.

Delaware

50.

Bio-Medical Applications of Pennsylvania, Inc.

Delaware

51.

Bio-Medical Applications of Ponce, Inc.

Delaware

52.

Bio-Medical Applications of Puerto Rico, Inc.

Delaware

53.

Bio-Medical Applications of Rhode Island, Inc.

Delaware

54.

Bio-Medical Applications of Rio Piedras, Inc.

Delaware

55.

Bio-Medical Applications of San German, Inc.

Delaware

56.

Bio-Medical Applications of San Juan, Inc.

Delaware

57.

Bio-Medical Applications of South Carolina, Inc.

Delaware

58.

Bio-Medical Applications of Southeast Washington, Inc.

Delaware

59.

Bio-Medical Applications of Tennessee, Inc.

Delaware

60.

Bio-Medical Applications of Texas, Inc.

Delaware

61.

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

Delaware

62.

Bio-Medical Applications of Virginia, Inc.

Delaware

63.

Bio-Medical Applications of West Virginia, Inc.

Delaware

64.

Bio-Medical Applications of Wisconsin, Inc.

Delaware

65.

Bio-Medical Applications of Wyoming, LLC

Delaware

66.

Brevard County Dialysis, LLC

Florida

67.

Clayton County Dialysis, LLC

Georgia

68.

Clermont Dialysis Center, LLC

Georgia

69.

College Park Dialysis, LLC

Georgia

70.

Columbus Area Renal Alliance, LLC

Delaware

71.

Conejo Valley Dialysis, Inc.

California

72.

Dialysis America Georgia, LLC

Delaware

73.

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

New Jersey

74.

Dialysis Centers of America - Illinois, Inc.

Illinois

75.

Dialysis Management Corporation

Texas

76.

Dialysis Services of Atlanta, Inc.

Georgia

77.

Dialysis Services of Cincinnati, Inc.

Ohio

Q-2


Transferring Affiliate

    

State of
Incorporation

78.

Dialysis Specialists of Marietta, Ltd.

Ohio

79.

Dialysis Specialists of Topeka, Inc.

Kansas

80.

Douglas County Dialysis, LLC

Georgia

81.

Du Page Dialysis Ltd.

Illinois

82.

Everest Healthcare Holdings, Inc.

Delaware

83.

Everest Healthcare Indiana, Inc.

Indiana

84.

Everest Healthcare Ohio, Inc.

Ohio

85.

Everest Healthcare Rhode Island, Inc.

Delaware

86.

Everest Healthcare Texas, L.P.

Delaware

87.

FMS Delaware Dialysis, LLC

Delaware

88.

FMS Philadelphia Dialysis, LLC

Delaware

89.

Fondren Dialysis Clinic, Inc.

Texas

90.

Fort Scott Regional Dialysis Center, Inc.

Missouri

91.

Four State Regional Dialysis Center, Inc.

Missouri

92.

Fresenius Kidney Care Guam, LLC

Delaware

93.

Fresenius Kidney Care Pittsburgh, LLC

Delaware

94.

Fresenius Management Services, Inc.

Delaware

95.

Fresenius Medical Care – South Texas Kidney, LLC

Delaware

96.

Fresenius Medical Care Dialysis Services Colorado, LLC

Delaware

97.

Fresenius Medical Care Dialysis Services-Oregon, LLC

Oregon

98.

Fresenius Medical Care Harston Hall, LLC

Delaware

99.

Fresenius Medical Care Holdings, Inc.

New York

100.

Fresenius Medical Care of Illinois, LLC

Delaware

101.

Fresenius Medical Care of Montana, LLC

Delaware

102.

Fresenius Medical Care Ventures, LLC

Delaware

103.

Fresenius Medical Care-OSUIM Kidney Centers, LLC

Delaware

104.

Fresenius USA Manufacturing, Inc.

Delaware

105.

Fresenius USA Marketing, Inc.

Delaware

106.

Fresenius USA, Inc.

Massachusetts

107.

Gulf Region Mobile Dialysis, Inc.

Delaware

108.

Haemo-Stat, Inc.

California

109.

Hauppauge Dialysis Center, LLC

New York

110.

Henry Dialysis Center, LLC

Georgia

111.

Holton Dialysis Clinic, LLC

Georgia

112.

Home Dialysis of Muhlenberg County, Inc.

Kentucky

113.

Homestead Artificial Kidney Center, Inc.

Florida

114.

Inland Northwest Renal Care Group, LLC

Washington

115.

Jefferson County Dialysis, Inc.

Arkansas

116.

KDCO, Inc.

Missouri

117.

Kentucky Renal Care Group, LLC

Delaware

118.

Little Rock Dialysis, Inc.

Arkansas

119.

Maumee Dialysis Services, LLC

Delaware

120.

Metro Dialysis Center - Normandy, Inc.

Missouri

Q-3


Transferring Affiliate

    

State of
Incorporation

121.

Metro Dialysis Center - North, Inc.

Missouri

122.

National Medical Care, Inc.

Delaware

123.

National Nephrology Associates of Texas, L.P.

Texas

124.

New York Dialysis Services, Inc.

New York

125.

NNA of Alabama, Inc.

Alabama

126.

NNA of East Orange, L.L.C.

New Jersey

127.

NNA of Georgia, Inc.

Delaware

128.

NNA of Harrison, L.L.C.

New Jersey

129.

NNA of Louisiana, LLC

Louisiana

130.

NNA of Oklahoma, Inc.

Nevada

131.

NNA of Oklahoma, L.L.C.

Oklahoma

132.

NNA of Rhode Island, Inc.

Rhode Island

133.

NNA of Toledo, Inc.

Ohio

134.

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

New Jersey

135.

NNA-Saint Barnabas, L.L.C.

New Jersey

136.

Northern New Jersey Dialysis, L.L.C.

Delaware

137.

NRA-Ada, Oklahoma, LLC

Delaware

138.

NRA-Augusta, Georgia, LLC

Georgia

139.

NRA-Bamberg, South Carolina, LLC

Tennessee

140.

NRA-Crossville, Tennessee, LLC

Tennessee

141.

NRA-Farmington, Missouri, LLC

Delaware

142.

NRA-Georgetown, Kentucky, LLC

Delaware

143.

NRA-Hogansville, Georgia, LLC

Delaware

144.

NRA-Holly Hill, South Carolina, LLC

Tennessee

145.

NRA-Hollywood, South Carolina, LLC

Delaware

146.

NRA-Inpatient Dialysis, LLC

Tennessee

147.

NRA-LaGrange, Georgia, LLC

Delaware

148.

NRA-Mt. Pleasant, South Carolina, LLC

Tennessee

149.

NRA-New Castle, Indiana, LLC

Delaware

150.

NRA-Newnan Acquisition, LLC

Tennessee

151.

NRA-Orangeburg, South Carolina, LLC

Tennessee

152.

NRA-Palmetto, Georgia, LLC

Delaware

153.

NRA-Princeton, Kentucky, LLC

Tennessee

154.

NRA-Roanoke, Alabama, LLC

Tennessee

155.

NRA-South City, Missouri, LLC

Delaware

156.

NRA-St. Louis (Home Therapy Center), Missouri, LLC

Delaware

157.

NRA-St. Louis, Missouri, LLC

Delaware

158.

NRA-Talladega, Alabama, LLC

Tennessee

159.

NRA-Valdosta (North), Georgia, LLC

Delaware

160.

NRA-Valdosta, Georgia, LLC

Delaware

161.

NRA-Washington County, Missouri, LLC

Delaware

162.

NRA-Winchester, Indiana, LLC

Delaware

163.

QualiCenters Albany, Ltd.

Colorado

Q-4


Transferring Affiliate

    

State of
Incorporation

164.

QualiCenters Bend LLC

Colorado

165.

QualiCenters Coos Bay, Ltd.

Colorado

166.

QualiCenters Eugene-Springfield, Ltd.

Colorado

167.

QualiCenters Inland Northwest L.L.C.

Colorado

168.

QualiCenters Pueblo LLC

Colorado

169.

QualiCenters Salem LLC

Colorado

170.

RAI Care Centers of Alabama, LLC

Delaware

171.

RAI Care Centers of Florida I, LLC

Delaware

172.

RAI Care Centers of Florida II, LLC

Delaware

173.

RAI Care Centers of Georgia I, LLC

Delaware

174.

RAI Care Centers of Illinois I, LLC

Delaware

175.

RAI Care Centers of Illinois II, LLC

Delaware

176.

RAI Care Centers of Maryland I, LLC

Delaware

177.

RAI Care Centers of Michigan I, LLC

Delaware

178.

RAI Care Centers of Michigan II, LLC

Delaware

179.

RAI Care Centers of Nebraska II, LLC

Delaware

180.

RAI Care Centers of North Carolina II, LLC

Delaware

181.

RAI Care Centers of Northern California I, LLC

Delaware

182.

RAI Care Centers of Northern California II, LLC

Delaware

183.

RAI Care Centers of Oakland II, LLC

Delaware

184.

RAI Care Centers of South Carolina I, LLC

Delaware

185.

RAI Care Centers of Southern California I, LLC

Delaware

186.

RAI Care Centers of Southern California II, LLC

Delaware

187.

RAI Care Centers of Virginia I, LLC

Delaware

188.

RCG Bloomington, LLC

Delaware

189.

RCG East Texas, LLP

Delaware

190.

RCG Indiana, L.L.C.

Delaware

191.

RCG Irving, LLP

Delaware

192.

RCG Martin, LLC

Delaware

193.

RCG Memphis East, LLC

Delaware

194.

RCG Mississippi, Inc.

Delaware

195.

RCG Pensacola, LLC

Delaware

196.

RCG Robstown, LLP

Delaware

197.

RCG University Division, Inc.

Tennessee

198.

Reliant Renal Care Lapeer Home Choice, LLC

Delaware

199.

Renal Care Group, Inc.

Delaware

200.

Renal Care Group Alaska, Inc.

Alaska

201.

Renal Care Group East, Inc.

Pennsylvania

202.

Renal Care Group Maplewood, LLC

Delaware

203.

Renal Care Group Northwest, Inc.

Delaware

204.

Renal Care Group of the Midwest, Inc.

Kansas

205.

Renal Care Group of the Ozarks, LLC

Delaware

206.

Renal Care Group of the Rockies, LLC

Delaware

Q-5


Transferring Affiliate

    

State of
Incorporation

207.

Renal Care Group of the South, Inc.

Delaware

208.

Renal Care Group of the Southeast, Inc.

Florida

209.

Renal Care Group South New Mexico, LLC

Delaware

210.

Renal Care Group Southwest Michigan, LLC

Delaware

211.

Renal Care Group Southwest, L.P.

Delaware

212.

Renal Care Group Terre Haute, LLC

Delaware

213.

Renal Care Group Texas, Inc.

Texas

214.

Renal Care Group Toledo, LLC

Delaware

215.

Renal Care Group-Harlingen, L.P.

Delaware

216.

RenalPartners, Inc.

Delaware

217.

Renex Dialysis Clinic of Bloomfield, Inc.

New Jersey

218.

Renex Dialysis Clinic of Bridgeton, Inc.

Missouri

219.

Renex Dialysis Clinic of Creve Coeur, Inc.

Missouri

220.

Renex Dialysis Clinic of Maplewood, Inc.

Missouri

221.

Renex Dialysis Clinic of Orange, Inc.

New Jersey

222.

Renex Dialysis Clinic of Pittsburgh, Inc.

Pennsylvania

223.

Renex Dialysis Clinic of South Georgia, Inc.

Georgia

224.

Renex Dialysis Clinic of St. Louis, Inc.

Missouri

225.

Renex Dialysis Clinic of University City, Inc.

Missouri

226.

Renex Dialysis Facilities, Inc.

Mississippi

227.

Saint Louis Renal Care, LLC

Delaware

228.

San Diego Dialysis Services, Inc.

Delaware

229.

Santa Barbara Community Dialysis Center, Inc.

California

230.

Smyrna Dialysis Center, LLC

Georgia

231.

SSKG, Inc.

Illinois

232.

St. Louis Regional Dialysis Center, Inc.

Missouri

233.

STAT Dialysis Corporation

Delaware

234.

Stone Mountain Dialysis Center, LLC

Georgia

235.

Stuttgart Dialysis, LLC

Arkansas

236.

Tappahannock Dialysis Center, Inc.

Virginia

237.

Terrell Dialysis Center, L.L.C.

Delaware

238.

Warrenton Dialysis Facility, Inc.

Virginia

239.

West End Dialysis Center, Inc.

Virginia

240.

WSKC Dialysis Services, Inc.

Illinois

Q-6


EXHIBIT R

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

FORM OF ACCOUNT AGENT AGREEMENT

[Attached]

R-1


ACCOUNT AGENT AGREEMENT

Account Agent Agreement (this “Agreement”), dated as of August 11, 2021, 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 The Bank of Nova Scotia, 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 Second Amended and Restated Transferring Affiliate Letter dated as of August 11, 2021 (as the same may from time to time be amended, restated, supplemented or otherwise modified, the “Transferring Affiliate Letter”) 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 Third Amended and Restated Receivables Purchase Agreement dated as of August 11, 2021 (as the same may from time to time be amended, restated, supplemented or otherwise modified, the “Receivables Agreement”) 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, to NMC Funding in accordance with the terms thereof.

(3)NMC Funding has entered into that certain Eighth Amended and Restated Transfer and Administration Agreement dated as of August 11, 2021 (as the same may from time to time be amended, restated, supplemented or otherwise modified, the “TAA”) with NMC, as the “Collection Agent” thereunder, certain “Investors” and “Administrative Agents” from time to time party thereto (together, 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.

(4)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.

(5)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.

-1-


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.

(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.

-2-


(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.

(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 9-313, 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.

(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

-3-


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 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]

-4-


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:

By:

Mark Fawcett,

Senior Vice President & Treasurer

By:

Mark Fawcett,

Senior Vice President & Treasurer

By:

Mark Fawcett,

Senior Vice President & Treasurer

Accepted and agreed as of
the date first above written:

NMC Funding Corporation

By:

Mark Fawcett,

Senior Vice President & Treasurer

The Bank of Nova Scotia., as Agent

By:

Name:

Title:

Signature Page to Account Agent Agreement Dated as of August 11, 2021


EXHIBIT S

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

LIST OF CLOSING DOCUMENTS

[Attached]

S-1


EIGHTH AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT

Dated as of August 11, 2021

NMC FUNDING CORPORATION,

as Transferor

List of Amendment Documents

Seller and Collection Agent:

    

National Medical Care, Inc. (“NMC”)

Purchaser and Transferor:

NMC Funding Corporation (“NMC Funding”)

Parent:

Fresenius Medical Care AG & Co. KGaA (“FME KGaA”)

Transferring Affiliates:

The entities specified on Schedule A hereto

New Transferring Affiliates:

The entities specified on Schedule B hereto

Outgoing Transferring Affiliates:

The entities specified on Schedule C hereto

Agent:

The Bank of Nova Scotia (“Scotia”)

Bank Investors and Administrative Agents (the “Banks”):

The Bank of Nova Scotia

The Bank of Tokyo-Mitsubishi UFJ, Ltd.

Credit Agricole Corporate and Investment Bank, New York
PNC Bank, National Association

Royal Bank of Canada

The Toronto-Dominion Bank
Reliant Trust

Conduit Investors (the “Conduits”):

Atlantic Asset Securitization LLC
GTA Lending LLC

Liberty Street Funding LLC
Thunder Bay Funding LLC
Victory Receivables Corporation

Retiring Administrative Agent and Bank Investor:

Barclays Bank PLC (“Barclays”)

Retiring Conduit Investor:

Sheffield Receivables Company, LLC

Counsel to National Medical Care, Inc. and NMC Funding Corporation:

Arent Fox LLP (“Arent Fox”)

Counsel to the Agent on behalf of the Banks and the Conduits:

Sidley Austin LLP (“Sidley”)


No.

Documents

A.

Program Documents

1.

Eighth Amended and Restated Transfer and Administration Agreement (“TAA”)

2.

Third Amended and Restated Receivables Purchase Agreement

3.

Second Amended and Restated Transferring Affiliate Letter

4.

Fourth Amended and Restated Parent Agreement

5.

Twelfth Amended and Restated Investor Fee Letter

6.

Agent Fee Letter

7.

Barclays Payout Letter

8.

Transfer Certificate

B.

Opinions

9.

Opinion of Karen A. Gledhill

10.

Opinion of Arent Fox LLP relating to corporate, enforceability, security interest and other matters

11.

Opinion of Arent Fox LLP relating to true sale and non-consolidation

12.

Opinion of German in-house counsel

13.

Opinion of German outside counsel


No.

Documents

Certificates

14.

Certificate of the Secretary of the Transferor, certifying (a) the Certificate of Incorporation of the Transferor, (b) By-Laws of the Transferor, (c) resolutions of the Transferor’s Board of Directors approving the execution, delivery and performance by the Transferor of the transaction documents to which it is a party and (d) Good Standing Certificate for the Transferor from the Secretary of State of Delaware

15.

Certificate of the Secretary of the Collection Agent, certifying (a) the Certificate of Incorporation, (b) By-Laws of the Collection Agent, (c) resolutions of the Collection Agent’s Board of Directors approving the execution, delivery and performance by the Collection Agent of the transaction documents to which it is a party and (d) Good Standing Certificate for the Collection Agent from the Secretary of State of Delaware

16.

Certificate of the Secretary of each New Transferring Affiliate listed on Schedule B, certifying (a) its Certificate of Incorporation, Certificate of Formation or equivalent document, (b) its by-laws, limited liability company agreement or equivalent document, if any, (c) resolutions of its Board of Directors (or equivalent governing body) approving the execution, delivery and performance of the transaction documents to which it is a party and (d) Good Standing Certificate from the relevant jurisdiction of organization

17.

Good Standing Certificate for each New Transferring Affiliate from the relevant jurisdiction of organization

18.

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

C.

Lien Searches and Security Interest Documentation

19.

Tax lien and judgment searches for the Transferor and the Collection Agent

20.

UCC lien searches for Transferor and the Collection Agent

21.

UCC lien searches for each New Transferring Affiliate

S-3


No.

Documents

22.

UCC-1 financing statement for each New Transferring Affiliate specified in Schedule B, to be filed with the Secretary of State of the related State

23.

UCC-3 termination statements for each Outgoing Transferring Affiliate specified in Schedule C, to be filed with the Secretary of State of the related State

24.

UCC-3 continuation statement for NMC, NMC Funding and each Transferring Affiliate specified in Schedule D, filed or to be filed with the Secretary of State of the related State [Pre- and Post-Closing, prior to lapse date]

25.

Authorization to file UCC-3 continuation statements and termination statements

D. Bank Account Documentation

26.

Special Account Letter for Reliant Renal Care Lapeer Home Choice, LLC

27.

Special Account Letter for Fresenius Kidney Care Guam, LLC [Post-Closing]

28.

Additional Designated Account Agreements [Post-Closing]

E. Additional Documentation for Outgoing Transfer Affiliates

29.

Removal Supplement for each Outgoing Transferring Affiliate specified in Schedule C

F. Other Documentation

30.

Investor Report dated as of June 30, 2021

31.

Cash Collections Report dated as of June 30, 2021

S-4


No.

Documents

32.

Evidence of Payment of NMC Federal Tax Liens

33.

Evidence of IRS Release of NMC Federal Tax Liens

S-5


SCHEDULE A

List of Transferring Affiliates1

Transferring Affiliate

    

State of
Incorporation

1.

Apheresis Care Group, Inc.

Delaware

2.

Bio-Medical Applications Management Company, Inc.

Delaware

3.

Bio-Medical Applications of Alabama, Inc.

Delaware

4.

Bio-Medical Applications of Amarillo, Inc.

Delaware

5.

Bio-Medical Applications of Anacostia, Inc.

Delaware

6.

Bio-Medical Applications of Aquadilla, Inc.

Delaware

7.

Bio-Medical Applications of Arecibo, Inc.

Delaware

8.

Bio-Medical Applications of Arkansas, Inc.

Delaware

9.

Bio-Medical Applications of Bayamon, Inc.

Delaware

10.

Bio-Medical Applications of Blue Springs, Inc.

Delaware

11.

Bio-Medical Applications of Caguas, Inc.

Delaware

12.

Bio-Medical Applications of California, Inc.

Delaware

13.

Bio-Medical Applications of Camarillo, Inc.

Delaware

14.

Bio-Medical Applications of Carolina, Inc.

Delaware

15.

Bio-Medical Applications of Clinton, Inc.

Delaware

16.

Bio-Medical Applications of Columbia Heights, Inc.

Delaware

17.

Bio-Medical Applications of Connecticut, Inc.

Delaware

18.

Bio-Medical Applications of Delaware, Inc.

Delaware

19.

Bio-Medical Applications of Dover, Inc.

Delaware

20.

Bio-Medical Applications of Eureka, Inc.

Delaware

21.

Bio-Medical Applications of Fayetteville, Inc.

Delaware

22.

Bio-Medical Applications of Florida, Inc.

Delaware

23.

Bio-Medical Applications of Fremont, Inc.

Delaware

24.

Bio-Medical Applications of Fresno, Inc.

Delaware

25.

Bio-Medical Applications of Georgia, Inc.

Delaware

26.

Bio-Medical Applications of Guayama, Inc.

Delaware

27.

Bio-Medical Applications of Humacao, Inc.

Delaware

28.

Bio-Medical Applications of Illinois, Inc.

Delaware

29.

Bio-Medical Applications of Indiana, Inc.

Delaware

30.

Bio-Medical Applications of Kansas, Inc.

Delaware

31.

Bio-Medical Applications of Kentucky, Inc.

Delaware

32.

Bio-Medical Applications of Los Gatos, Inc.

Delaware

33.

Bio-Medical Applications of Louisiana, LLC

Delaware

34.

Bio-Medical Applications of Maine, Inc.

Delaware

35.

Bio-Medical Applications of Manchester, Inc.

Delaware

36.

Bio-Medical Applications of Maryland, Inc.

Delaware

37.

Bio-Medical Applications of Massachusetts, Inc.

Delaware

38.

Bio-Medical Applications of Mayaguez, Inc.

Delaware

39.

Bio-Medical Applications of Michigan, Inc.

Delaware


1 Excludes Outgoing Transferring Affiliates but includes New Transferring Affiliate


Transferring Affiliate

    

State of
Incorporation

40.

Bio-Medical Applications of Minnesota, Inc.

Delaware

41.

Bio-Medical Applications of Mississippi, Inc.

Delaware

42.

Bio-Medical Applications of Missouri, Inc.

Delaware

43.

Bio-Medical Applications of New Hampshire, Inc.

Delaware

44.

Bio-Medical Applications of New Jersey, Inc.

Delaware

45.

Bio-Medical Applications of New Mexico, Inc.

Delaware

46.

Bio-Medical Applications of North Carolina, Inc.

Delaware

47.

Bio-Medical Applications of Northeast D.C., Inc.

Delaware

48.

Bio-Medical Applications of Ohio, Inc.

Delaware

49.

Bio-Medical Applications of Oklahoma, Inc.

Delaware

50.

Bio-Medical Applications of Pennsylvania, Inc.

Delaware

51.

Bio-Medical Applications of Ponce, Inc.

Delaware

52.

Bio-Medical Applications of Puerto Rico, Inc.

Delaware

53.

Bio-Medical Applications of Rhode Island, Inc.

Delaware

54.

Bio-Medical Applications of Rio Piedras, Inc.

Delaware

55.

Bio-Medical Applications of San German, Inc.

Delaware

56.

Bio-Medical Applications of San Juan, Inc.

Delaware

57.

Bio-Medical Applications of South Carolina, Inc.

Delaware

58.

Bio-Medical Applications of Southeast Washington, Inc.

Delaware

59.

Bio-Medical Applications of Tennessee, Inc.

Delaware

60.

Bio-Medical Applications of Texas, Inc.

Delaware

61.

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

Delaware

62.

Bio-Medical Applications of Virginia, Inc.

Delaware

63.

Bio-Medical Applications of West Virginia, Inc.

Delaware

64.

Bio-Medical Applications of Wisconsin, Inc.

Delaware

65.

Bio-Medical Applications of Wyoming, LLC

Delaware

66.

Brevard County Dialysis, LLC

Florida

67.

Clayton County Dialysis, LLC

Georgia

68.

Clermont Dialysis Center, LLC

Georgia

69.

College Park Dialysis, LLC

Georgia

70.

Columbus Area Renal Alliance, LLC

Delaware

71.

Conejo Valley Dialysis, Inc.

California

72.

Dialysis America Georgia, LLC

Delaware

73.

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

New Jersey

74.

Dialysis Centers of America - Illinois, Inc.

Illinois

75.

Dialysis Management Corporation

Texas

76.

Dialysis Services of Atlanta, Inc.

Georgia

77.

Dialysis Services of Cincinnati, Inc.

Ohio

78.

Dialysis Specialists of Marietta, Ltd.

Ohio

79.

Dialysis Specialists of Topeka, Inc.

Kansas

80.

Douglas County Dialysis, LLC

Georgia

81.

Du Page Dialysis Ltd.

Illinois

82.

Everest Healthcare Holdings, Inc.

Delaware

83.

Everest Healthcare Indiana, Inc.

Indiana

84.

Everest Healthcare Ohio, Inc.

Ohio

85.

Everest Healthcare Rhode Island, Inc.

Delaware

S-A-2


Transferring Affiliate

    

State of
Incorporation

86.

Everest Healthcare Texas, L.P.

Delaware

87.

FMS Delaware Dialysis, LLC

Delaware

88.

FMS Philadelphia Dialysis, LLC

Delaware

89.

Fondren Dialysis Clinic, Inc.

Texas

90.

Fort Scott Regional Dialysis Center, Inc.

Missouri

91.

Four State Regional Dialysis Center, Inc.

Missouri

92.

Fresenius Kidney Care Guam, LLC

Delaware

93.

Fresenius Kidney Care Pittsburgh, LLC

Delaware

94.

Fresenius Management Services, Inc.

Delaware

95.

Fresenius Medical Care – South Texas Kidney, LLC

Delaware

96.

Fresenius Medical Care Dialysis Services Colorado, LLC

Delaware

97.

Fresenius Medical Care Dialysis Services-Oregon, LLC

Oregon

98.

Fresenius Medical Care Harston Hall, LLC

Delaware

99.

Fresenius Medical Care Holdings, Inc.

New York

100.

Fresenius Medical Care of Illinois, LLC

Delaware

101.

Fresenius Medical Care of Montana, LLC

Delaware

102.

Fresenius Medical Care Ventures, LLC

Delaware

103.

Fresenius Medical Care-OSUIM Kidney Centers, LLC

Delaware

104.

Fresenius USA Manufacturing, Inc.

Delaware

105.

Fresenius USA Marketing, Inc.

Delaware

106.

Fresenius USA, Inc.

Massachusetts

107.

Gulf Region Mobile Dialysis, Inc.

Delaware

108.

Haemo-Stat, Inc.

California

109.

Hauppauge Dialysis Center, LLC

New York

110.

Henry Dialysis Center, LLC

Georgia

111.

Holton Dialysis Clinic, LLC

Georgia

112.

Home Dialysis of Muhlenberg County, Inc.

Kentucky

113.

Homestead Artificial Kidney Center, Inc.

Florida

114.

Inland Northwest Renal Care Group, LLC

Washington

115.

Jefferson County Dialysis, Inc.

Arkansas

116.

KDCO, Inc.

Missouri

117.

Kentucky Renal Care Group, LLC

Delaware

118.

Little Rock Dialysis, Inc.

Arkansas

119.

Maumee Dialysis Services, LLC

Delaware

120.

Metro Dialysis Center - Normandy, Inc.

Missouri

121.

Metro Dialysis Center - North, Inc.

Missouri

122.

National Medical Care, Inc.

Delaware

123.

National Nephrology Associates of Texas, L.P.

Texas

124.

New York Dialysis Services, Inc.

New York

125.

NNA of Alabama, Inc.

Alabama

126.

NNA of East Orange, L.L.C.

New Jersey

127.

NNA of Georgia, Inc.

Delaware

128.

NNA of Harrison, L.L.C.

New Jersey

129.

NNA of Louisiana, LLC

Louisiana

130.

NNA of Oklahoma, Inc.

Nevada

131.

NNA of Oklahoma, L.L.C.

Oklahoma

S-A-3


Transferring Affiliate

    

State of
Incorporation

132.

NNA of Rhode Island, Inc.

Rhode Island

133.

NNA of Toledo, Inc.

Ohio

134.

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

New Jersey

135.

NNA-Saint Barnabas, L.L.C.

New Jersey

136.

Northern New Jersey Dialysis, L.L.C.

Delaware

137.

NRA-Ada, Oklahoma, LLC

Delaware

138.

NRA-Augusta, Georgia, LLC

Georgia

139.

NRA-Bamberg, South Carolina, LLC

Tennessee

140.

NRA-Crossville, Tennessee, LLC

Tennessee

141.

NRA-Farmington, Missouri, LLC

Delaware

142.

NRA-Georgetown, Kentucky, LLC

Delaware

143.

NRA-Hogansville, Georgia, LLC

Delaware

144.

NRA-Holly Hill, South Carolina, LLC

Tennessee

145.

NRA-Hollywood, South Carolina, LLC

Delaware

146.

NRA-Inpatient Dialysis, LLC

Tennessee

147.

NRA-LaGrange, Georgia, LLC

Delaware

148.

NRA-Mt. Pleasant, South Carolina, LLC

Tennessee

149.

NRA-New Castle, Indiana, LLC

Delaware

150.

NRA-Newnan Acquisition, LLC

Tennessee

151.

NRA-Orangeburg, South Carolina, LLC

Tennessee

152.

NRA-Palmetto, Georgia, LLC

Delaware

153.

NRA-Princeton, Kentucky, LLC

Tennessee

154.

NRA-Roanoke, Alabama, LLC

Tennessee

155.

NRA-South City, Missouri, LLC

Delaware

156.

NRA-St. Louis (Home Therapy Center), Missouri, LLC

Delaware

157.

NRA-St. Louis, Missouri, LLC

Delaware

158.

NRA-Talladega, Alabama, LLC

Tennessee

159.

NRA-Valdosta (North), Georgia, LLC

Delaware

160.

NRA-Valdosta, Georgia, LLC

Delaware

161.

NRA-Washington County, Missouri, LLC

Delaware

162.

NRA-Winchester, Indiana, LLC

Delaware

163.

QualiCenters Albany, Ltd.

Colorado

164.

QualiCenters Bend LLC

Colorado

165.

QualiCenters Coos Bay, Ltd.

Colorado

166.

QualiCenters Eugene-Springfield, Ltd.

Colorado

167.

QualiCenters Inland Northwest L.L.C.

Colorado

168.

QualiCenters Pueblo LLC

Colorado

169.

QualiCenters Salem LLC

Colorado

170.

RAI Care Centers of Alabama, LLC

Delaware

171.

RAI Care Centers of Florida I, LLC

Delaware

172.

RAI Care Centers of Florida II, LLC

Delaware

173.

RAI Care Centers of Georgia I, LLC

Delaware

174.

RAI Care Centers of Illinois I, LLC

Delaware

175.

RAI Care Centers of Illinois II, LLC

Delaware

176.

RAI Care Centers of Maryland I, LLC

Delaware

177.

RAI Care Centers of Michigan I, LLC

Delaware

S-A-4


Transferring Affiliate

    

State of
Incorporation

178.

RAI Care Centers of Michigan II, LLC

Delaware

179.

RAI Care Centers of Nebraska II, LLC

Delaware

180.

RAI Care Centers of North Carolina II, LLC

Delaware

181.

RAI Care Centers of Northern California I, LLC

Delaware

182.

RAI Care Centers of Northern California II, LLC

Delaware

183.

RAI Care Centers of Oakland II, LLC

Delaware

184.

RAI Care Centers of South Carolina I, LLC

Delaware

185.

RAI Care Centers of Southern California I, LLC

Delaware

186.

RAI Care Centers of Southern California II, LLC

Delaware

187.

RAI Care Centers of Virginia I, LLC

Delaware

188.

RCG Bloomington, LLC

Delaware

189.

RCG East Texas, LLP

Delaware

190.

RCG Indiana, L.L.C.

Delaware

191.

RCG Irving, LLP

Delaware

192.

RCG Martin, LLC

Delaware

193.

RCG Memphis East, LLC

Delaware

194.

RCG Mississippi, Inc.

Delaware

195.

RCG Pensacola, LLC

Delaware

196.

RCG Robstown, LLP

Delaware

197.

RCG University Division, Inc.

Tennessee

198.

Reliant Renal Care Lapeer Home Choice, LLC

Delaware

199.

Renal Care Group, Inc.

Delaware

200.

Renal Care Group Alaska, Inc.

Alaska

201.

Renal Care Group East, Inc.

Pennsylvania

202.

Renal Care Group Maplewood, LLC

Delaware

203.

Renal Care Group Northwest, Inc.

Delaware

204.

Renal Care Group of the Midwest, Inc.

Kansas

205.

Renal Care Group of the Ozarks, LLC

Delaware

206.

Renal Care Group of the Rockies, LLC

Delaware

207.

Renal Care Group of the South, Inc.

Delaware

208.

Renal Care Group of the Southeast, Inc.

Florida

209.

Renal Care Group South New Mexico, LLC

Delaware

210.

Renal Care Group Southwest Michigan, LLC

Delaware

211.

Renal Care Group Southwest, L.P.

Delaware

212.

Renal Care Group Terre Haute, LLC

Delaware

213.

Renal Care Group Texas, Inc.

Texas

214.

Renal Care Group Toledo, LLC

Delaware

215.

Renal Care Group-Harlingen, L.P.

Delaware

216.

RenalPartners, Inc.

Delaware

217.

Renex Dialysis Clinic of Bloomfield, Inc.

New Jersey

218.

Renex Dialysis Clinic of Bridgeton, Inc.

Missouri

219.

Renex Dialysis Clinic of Creve Coeur, Inc.

Missouri

220.

Renex Dialysis Clinic of Maplewood, Inc.

Missouri

221.

Renex Dialysis Clinic of Orange, Inc.

New Jersey

222.

Renex Dialysis Clinic of Pittsburgh, Inc.

Pennsylvania

223.

Renex Dialysis Clinic of South Georgia, Inc.

Georgia

S-A-5


Transferring Affiliate

    

State of
Incorporation

224.

Renex Dialysis Clinic of St. Louis, Inc.

Missouri

225.

Renex Dialysis Clinic of University City, Inc.

Missouri

226.

Renex Dialysis Facilities, Inc.

Mississippi

227.

Saint Louis Renal Care, LLC

Delaware

228.

San Diego Dialysis Services, Inc.

Delaware

229.

Santa Barbara Community Dialysis Center, Inc.

California

230.

Smyrna Dialysis Center, LLC

Georgia

231.

SSKG, Inc.

Illinois

232.

St. Louis Regional Dialysis Center, Inc.

Missouri

233.

STAT Dialysis Corporation

Delaware

234.

Stone Mountain Dialysis Center, LLC

Georgia

235.

Stuttgart Dialysis, LLC

Arkansas

236.

Tappahannock Dialysis Center, Inc.

Virginia

237.

Terrell Dialysis Center, L.L.C.

Delaware

238.

Warrenton Dialysis Facility, Inc.

Virginia

239.

West End Dialysis Center, Inc.

Virginia

240.

WSKC Dialysis Services, Inc.

Illinois

S-A-6


SCHEDULE B

List of New Transferring Affiliates

Fresenius Kidney Care Guam, LLC

Reliant Renal Care Lapeer Home Choice, LLC

S-B-1


SCHEDULE C

List of Outgoing Transferring Affiliates

Fresenius Medical Care West Bexar, LLC

Northeast Alabama Kidney Clinic, Inc.

NRA-Varnville, South Carolina, LLC

Renex Dialysis Clinic of Tampa, Inc.

Physicians Dialysis Company, Inc.

S-C-1


SCHEDULE D

List of UCC-3 Continuation Statements Filed or to be Filed

[attached]

S-D-1


DEBTOR

JURISDICTION

DATE
FILED

FILE NUMBER

LAPSE
DATE

UCC-3
CONTINUATIONS

1.

Bio-Medical Applications Management Company, Inc.

Secretary of State of Delaware

12/26/01

20020188270

12/26/21

2.

Bio-Medical Applications of Alabama, Inc.

Secretary of State of Delaware

12/26/01

20020201248

12/26/21

3.

Bio-Medical Applications of Anacostia, Inc.

Secretary of State of Delaware

12/26/01

20020201040

12/26/21

4.

Bio-Medical Applications of Aquadilla, Inc.

Secretary of State of Delaware

12/26/01

20020201362

12/26/21

5.

Bio-Medical Applications of Arecibo, Inc.

Secretary of State of Delaware

12/26/01

20020201446

12/26/21

6.

Bio-Medical Applications of Arkansas, Inc.

Secretary of State of Delaware

12/26/01

20020207492

12/26/21

7.

Bio-Medical Applications of Bayamon, Inc.

Secretary of State of Delaware

12/26/01

20020207500

12/26/21

8.

Bio-Medical Applications of Blue Springs, Inc.

Secretary of State of Delaware

12/26/01

20020185151

12/26/21

9.

Bio-Medical Applications of Caguas, Inc.

Secretary of State of Delaware

12/26/01

20020207484

12/26/21

10.

Bio-Medical Applications of California, Inc.

Secretary of State of Delaware

12/26/01

20020207468

12/26/21

11.

Bio-Medical Applications of Camarillo, Inc.

Secretary of State of Delaware

12/26/01

20020207476

12/26/21

12.

Bio-Medical Applications of Carolina, Inc.

Secretary of State of Delaware

12/26/01

20020196109

12/26/21

13.

Bio-Medical Applications of Clinton, Inc.

Secretary of State of Delaware

12/26/01

20020185128

12/26/21

14.

Bio-Medical Applications of Columbia Heights, Inc.

Secretary of State of Delaware

12/26/01

20020205660

12/26/21

15.

Bio-Medical Applications of Connecticut, Inc.

Secretary of State of Delaware

12/26/01

20020205645

12/26/21

S-D-2


DEBTOR

JURISDICTION

DATE
FILED

FILE NUMBER

LAPSE
DATE

UCC-3
CONTINUATIONS

16.

Bio-Medical Applications of Delaware, Inc.

Secretary of State of Delaware

12/26/01

20020205611

12/26/21

17.

Bio-Medical Applications of Dover, Inc.

Secretary of State of Delaware

12/26/01

20020185110

12/26/21

18.

Bio-Medical Applications of Eureka, Inc.

Secretary of State of Delaware

12/26/01

20020205603

12/26/21

19.

Bio-Medical Applications of Fayetteville, Inc.

Secretary of State of Delaware

12/26/01

20020201701

12/26/21

20.

Bio-Medical Applications of Florida, Inc.

Secretary of State of Delaware

12/26/01

20020205587

12/26/21

21.

Bio-Medical Applications of Fremont, Inc.

Secretary of State of Delaware

12/26/01

20020205579

12/26/21

22.

Bio-Medical Applications of Fresno, Inc.

Secretary of State of Delaware

12/26/01

20020205553

12/26/21

23.

Bio-Medical Applications of Georgia, Inc.

Secretary of State of Delaware

12/26/01

20020205546

12/26/21

24.

Bio-Medical Applications of Guayama, Inc.

Secretary of State of Delaware

12/26/01

20020205496

12/26/21

25.

Bio-Medical Applications of Humacao, Inc.

Secretary of State of Delaware

12/26/01

20020205231

12/26/21

26.

Bio-Medical Applications of Illinois, Inc.

Secretary of State of Delaware

12/26/01

20020206932

12/26/21

27.

Bio-Medical Applications of Indiana, Inc.

Secretary of State of Delaware

12/26/01

20020206908

12/26/21

28.

Bio-Medical Applications of Kansas, Inc.

Secretary of State of Delaware

12/26/01

20020206882

12/26/21

29.

Bio-Medical Applications of Kentucky, Inc.

Secretary of State of Delaware

12/26/01

20020206866

12/26/21

30.

Bio-Medical Applications of Los Gatos, Inc.

Secretary of State of Delaware

12/26/01

20020206841

12/26/21

S-D-3


DEBTOR

JURISDICTION

DATE
FILED

FILE NUMBER

LAPSE
DATE

UCC-3
CONTINUATIONS

31.

Bio-Medical Applications of Louisiana, LLC

Secretary of State of Delaware

12/26/01

20020206874

12/21/21

32.

Bio-Medical Applications of Maine, Inc.

Secretary of State of Delaware

12/26/01

20020206825

12/26/21

33.

Bio-Medical Applications of Manchester, Inc.

Secretary of State of Delaware

12/26/01

20020187165

12/26/21

34.

Bio-Medical Applications of Maryland, Inc.

Secretary of State of Delaware

12/26/01

20020205686

12/26/21

35.

Bio-Medical Applications of Massachusetts

Secretary of State of Delaware

12/26/01

20020205694

12/26/21

36.

Bio-Medical Applications of Mayaguez, Inc.

Secretary of State of Delaware

12/26/01

20020191555

12/26/21

37.

Bio-Medical Applications of Michigan, Inc.

Secretary of State of Delaware

12/26/01

20020191498

12/26/21

38.

Bio-Medical Applications of Minnesota, Inc.

Secretary of State of Delaware

12/26/01

20020191373

12/26/21

39.

Bio-Medical Applications of Mississippi, Inc.

Secretary of State of Delaware

12/26/01

20020191027

12/26/21

40.

Bio-Medical Applications of Missouri, Inc.

Secretary of State of Delaware

12/26/01

20020189518

12/26/21

41.

Bio-Medical Applications of New Hampshire, Inc.

Secretary of State of Delaware

12/26/01

20020189468

12/26/21

42.

Bio-Medical Applications of New Jersey, Inc.

Secretary of State of Delaware

12/26/01

20020203095

12/26/21

43.

Bio-Medical Applications of New Mexico, Inc.

Secretary of State of Delaware

12/26/01

20020187793

12/26/21

44.

Bio-Medical Applications of North Carolina, Inc.

Secretary of State of Delaware

12/26/01

20020189351

12/26/21

45.

Bio-Medical Applications of Northeast D.C., Inc.

Secretary of State of Delaware

12/26/01

20020188668

12/26/21

S-D-4


DEBTOR

JURISDICTION

DATE
FILED

FILE NUMBER

LAPSE
DATE

UCC-3
CONTINUATIONS

46.

Bio-Medical Applications of Ohio, Inc.

Secretary of State of Delaware

12/26/01

20020188478

12/26/21

47.

Bio-Medical Applications of Oklahoma, Inc.

Secretary of State of Delaware

12/26/01

20020188114

12/26/21

48.

Bio-Medical Applications of Pennsylvania, Inc.

Secretary of State of Delaware

12/26/01

20020188056

12/26/21

49.

Bio-Medical Applications of Ponce, Inc.

Secretary of State of Delaware

12/26/01

20020187827

12/26/21

50.

Bio-Medical Applications of Puerto Rico, Inc.

Secretary of State of Delaware

12/26/01

20020187694

12/26/21

51.

Bio-Medical Applications of Rhode Island, Inc.

Secretary of State of Delaware

12/26/01

20020187629

12/26/21

52.

Bio-Medical Applications of Rio Piedras, Inc.

Secretary of State of Delaware

12/26/01

20020185862

12/26/21

53.

Bio-Medical Applications of San German, Inc.

Secretary of State of Delaware

12/26/01

20020186035

12/26/21

54.

Bio-Medical Applications of San Juan, Inc.

Secretary of State of Delaware

12/26/01

20020185938

12/26/21

55.

Bio-Medical Applications of South Carolina, Inc.

Secretary of State of Delaware

12/26/01

20020185912

12/26/21

56.

Bio-Medical Applications of Southeast Washington, Inc.

Secretary of State of Delaware

12/26/01

20020185854

12/26/21

57.

Bio-Medical Applications of Tennessee, Inc.

Secretary of State of Delaware

12/26/01

20020186084

12/26/21

58.

Bio-Medical Applications of Texas, Inc.

Secretary of State of Delaware

12/26/01

20020186282

12/26/21

59.

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

Secretary of State of Delaware

12/26/01

20020186134

12/26/21

60.

Bio-Medical Applications of Virginia, Inc.

Secretary of State of Delaware

12/26/01

20020185425

12/26/21

S-D-5


DEBTOR

JURISDICTION

DATE
FILED

FILE NUMBER

LAPSE
DATE

UCC-3
CONTINUATIONS

61.

Bio-Medical Applications of West Virginia, Inc.

Secretary of State of Delaware

12/26/01

20020185383

12/26/21

62.

Bio-Medical Applications of Wisconsin, Inc.

Secretary of State of Delaware

12/26/01

20020185292

12/26/21

63.

Brevard County Dialysis, LLC

Secretary of State of Florida

10/20/06

200603954586

10/20/21

64.

Clayton County Dialysis, LLC

Fulton County, Georgia

10/24/06

060-2006-13060

10/24/21

65.

Clermont Dialysis Center, LLC

Fulton County, Georgia

10/24/06

060-2006-13061

10/24/21

66.

Columbus Area Renal Alliance, LLC

Secretary of State of Delaware

10/20/06

20063667532

10/20/21

67.

Conejo Valley Dialysis, Inc.

Secretary of State of California

12/27/01

0136260218

12/27/21

68.

Dialysis America Georgia, LLC

Secretary of State of Delaware

12/26/01

20020185920

12/26/21

69.

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

Secretary of State of New Jersey

12/26/01

2079480

12/26/21

70.

Dialysis Centers of America- Illinois, Inc.

Secretary of State of Illinois

10/20/06

011457185

10/20/21

71.

Dialysis Management Corporation

Secretary of State of Texas

10/24/06

06-0035129107

10/24/21

72.

Dialysis Services of Atlanta, Inc.

Fulton County, Georgia

10/24/06

060-2006-13064

10/24/21

73.

Dialysis Services of Cincinnati, Inc.

Secretary of State of Ohio

12/27/01

OH00043224499

12/27/21

74.

Dialysis Specialists of Topeka, Inc.

Secretary of State of Kansas

08/05/11

6824973

08/05/21

File-Stamped UCC-3 CONT received; dated 7/28/21

75.

Douglas County Dialysis, LLC

Fulton County, Georgia

10/24/06

060-2006-013065

10/24/21

S-D-6


DEBTOR

JURISDICTION

DATE
FILED

FILE NUMBER

LAPSE
DATE

UCC-3
CONTINUATIONS

76.

Du Page Dialysis, Ltd.

Secretary of State of Illinois

01/09/02

004569725

01/09/22

77.

Everest Healthcare Holdings, Inc.

Secretary of State of Delaware

12/26/01

20020182554

12/26/21

78.

Everest Healthcare Indiana, Inc.

Secretary of State of Indiana

12/26/01

200100009985327

12/26/21

79.

Everest Healthcare Ohio, Inc.

Secretary of State of Ohio

12/27/01

OH00043224277

12/27/21

80.

Everest Healthcare Rhode Island, Inc.

Secretary of State of Delaware

12/26/01

20020182430

12/26/21

81.

Everest Healthcare Texas, L.P.

Secretary of State of Delaware

12/26/01

20020182372

12/26/21

82.

FMS Delaware Dialysis, LLC

Secretary of State of Delaware

08/09/11

20113075309

08/09/21

File-Stamped UCC-3 CONT received; dated 7/28/21

83.

Fondren Dialysis Clinic, Inc.

Secretary of State of Texas

10/24/06

06-0035129096

10/24/21

84.

Fort Scott Regional Dialysis Center, Inc.

Secretary of State of Missouri

10/20/06

20060114434G

10/20/21

85.

Four State Regional Dialysis Center, Inc.

Secretary of State of Missouri

10/20/06

20060114435H

10/20/21

86.

Fresenius Management Services, Inc.

Secretary of State of Delaware

12/26/01

20020182265

12/26/21

87.

Fresenius Medical Care - South Texas Kidney, LLC

Secretary of State of Delaware

08/09/11

20113075432

08/09/21

File-Stamped UCC-3 CONT received; dated 7/28/21

88.

Fresenius Medical Care Harston Hall, LLC

Secretary of State of Delaware

08/09/11

20113075515

08/09/21

File-Stamped UCC-3 CONT received; dated 7/28/21

S-D-7


DEBTOR

JURISDICTION

DATE
FILED

FILE NUMBER

LAPSE
DATE

UCC-3
CONTINUATIONS

89.

Fresenius Medical Care of Montana, LLC

Secretary of State of Delaware

08/09/11

20113075689

08/09/21

File-Stamped UCC-3 CONT received; dated 7/28/21

90.

Fresenius Medical Care-OSUIM Kidney Centers, LLC

Secretary of State of Delaware

08/09/11

20113075754

08/09/21

File-Stamped UCC-3 CONT received; dated 7/28/21

91.

Fresenius USA Marketing, Inc.

Secretary of State of Delaware

12/26/01

20020182232

12/26/21

92.

Fresenius USA, Inc.

Secretary of Commonwealth of Massachusetts

12/27/01

200107918400

12/27/21

93.

Gulf Region Mobile Dialysis, Inc.

Secretary of State of Delaware

12/26/01

20011791206

12/26/21

94.

Haemo-Stat, Inc.

Secretary of State of California

12/27/01

0136260283

12/27/21

95.

Hauppauge Dialysis Center, LLC

Department of State of New York

12/07/16

201612070579314

12/07/21

96.

Henry Dialysis Center, LLC

Fulton County, Georgia

10/24/06

060-2006-013066

10/24/21

97.

Holton Dialysis Clinic, LLC

Fulton County, Georgia

10/24/06

060-2006-013067

10/24/21

98.

Home Dialysis of Muhlenberg County, Inc.

Secretary of State of Kentucky

12/26/01

2001-1743498-99

12/26/21

99.

Inland Northwest Renal Care Group, LLC

Department of Licensing of Washington

08/09/11

2011-223-7057-0

08/09/21

File-Stamped UCC-3 CONT received; dated 7/29/21

100.

Jefferson County Dialysis, Inc.

Secretary of State of Arkansas

10/20/06

7128907001

10/20/21

101.

KDCO, Inc.

Secretary of State of Missouri

10/20/06

20060114436J

10/20/21

S-D-8


DEBTOR

JURISDICTION

DATE
FILED

FILE NUMBER

LAPSE
DATE

UCC-3
CONTINUATIONS

102.

Kentucky Renal Care Group, LLC

Secretary of State of Delaware

10/20/06

20063667607

10/20/21

103.

Little Rock Dialysis, Inc.

Secretary of State of Arkansas

10/20/06

7128907038

10/20/21

104.

Maumee Dialysis Services, LLC

Secretary of State of Delaware

10/20/06

20063667573

10/20/21

105.

National Medical Care, Inc.

Secretary of State of Delaware

12/26/01

20020185185

12/26/21

106.

National Medical Care, Inc.

Secretary of State of Delaware

12/26/01

20020185219

12/26/21

107.

National Nephrology Associates of Texas, L.P.

Secretary of State of Texas

10/24/06

06-0035128853

10/24/21

108.

NMC Funding Corporation

Secretary of State of Delaware

12/26/01

20020185342

12/26/21

109.

NNA of Alabama, Inc.

Secretary of State of Alabama

10/20/06

06-0917064

10/20/21

110.

NNA of East Orange, L.L.C.

Secretary of State of New Jersey

10/20/06

2384971-6

10/20/21

111.

NNA of Georgia, Inc.

Secretary of State of Delaware

10/20/06

20063667581

10/20/21

112.

NNA of Harrison, L.L.C.

Secretary of State of New Jersey

10/20/06

2384972-3

10/20/21

113.

NNA of Louisiana, LLC

East Baton Rouge of Louisiana

08/05/11

17-1367592

08/05/21

File-Stamped UCC-3 CONT received; dated 7/29/21

114.

NNA of Oklahoma, Inc.

Secretary of State of Nevada

10/19/06

2006035286-9

10/19/21

115.

NNA of Oklahoma, L.L.C.

County Clerk of Oklahoma County, Oklahoma

10/20/06

2006012728533

10/20/21

S-D-9


DEBTOR

JURISDICTION

DATE
FILED

FILE NUMBER

LAPSE
DATE

UCC-3
CONTINUATIONS

116.

NNA of Rhode Island, Inc.

Secretary of State of Rhode Island

10/20/06

200604199050

10/20/21

117.

NNA of Toledo, Inc.

Secretary of State of Ohio

10/20/06

OH00107867650

10/20/21

118.

NNA-Saint Barnabas, L.L.C.

Secretary of State of New Jersey

10/20/06

2384974-7

10/20/21

119.

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

Secretary of State of New Jersey

10/20/06

2384975-4

10/20/21

120.

Northern New Jersey Dialysis, L.L.C.

Secretary of State of Delaware

12/26/01

20020183651

12/26/21

121.

RAI Care Centers of Virginia I, LLC

Secretary of State of Delaware

12/06/16

20167560012

12/06/21

122.

RCG Bloomington, LLC

Secretary of State of Delaware

10/20/06

20063667755

10/20/21

123.

RCG East Texas, LLP

Secretary of State of Delaware

10/20/06

20063667680

10/20/21

124.

RCG Indiana, L.L.C.

Secretary of State of Delaware

10/20/06

20063667706

10/20/21

125.

RCG Irving, LLP

Secretary of State of Delaware

10/20/06

20063667722

10/20/21

126.

RCG Martin, LLC

Secretary of State of Delaware

10/20/06

20063667847

10/20/21

127.

RCG Memphis East, LLC

Secretary of State of Delaware

10/20/06

20063667888

10/20/21

128.

RCG Mississippi, Inc.

Secretary of State of Delaware

10/20/06

20063667839

10/20/21

129.

RCG Pensacola, LLC

Secretary of State of Delaware

08/09/11

20113075846

08/09/21

File-Stamped UCC-3 CONT received; dated 7/28/21

130.

RCG University Division, Inc.

Secretary of State of Tennessee

10/24/06

306-167052

10/24/21

S-D-10


DEBTOR

JURISDICTION

DATE
FILED

FILE NUMBER

LAPSE
DATE

UCC-3
CONTINUATIONS

131.

Renal Care Group Alaska, Inc.

Department of Natural Resources of Alaska

10/20/06

2006-619964-3

10/20/21

132.

Renal Care Group East, Inc.

Secretary of Commonwealth of Pennsylvania

10/20/06

20061020402225

10/20/21

133.

Renal Care Group Northwest, Inc.

Secretary of State of Delaware

10/20/06

20063667995

10/20/21

134.

Renal Care Group of the Midwest, Inc.

Secretary of State of Kansas

08/05/11

6824965

08/05/21

File-Stamped UCC-3 CONT received; dated 7/28/21

135.

Renal Care Group of the Ozarks, LLC

Secretary of State of Delaware

10/20/06

20063668464

10/20/21

136.

Renal Care Group of the South, Inc.

Secretary of State of Delaware

10/20/06

20063668100

10/20/21

137.

Renal Care Group of the Southeast, Inc.

Secretary of State of Florida

10/20/06

200603954462

10/20/21

138.

Renal Care Group South New Mexico, LLC

Secretary of State of Delaware

10/20/06

20063668126

10/20/21

139.

Renal Care Group Southwest, L.P.

Secretary of State of Delaware

10/20/06

20063668191

10/20/21

140.

Renal Care Group Terre Haute, LLC

Secretary of State of Delaware

08/09/11

20113075978

08/09/21

File-Stamped UCC-3 CONT received; dated 7/28/21

141.

Renal Care Group Texas, Inc.

Secretary of State of Texas

10/24/06

06-0035128520

10/24/21

142.

Renal Care Group, Inc.

Secretary of State of Delaware

10/20/06

20063668241

10/20/21

143.

RenalPartners, Inc

Secretary of State of Delaware

10/20/06

20063668282

10/20/21

S-D-11


DEBTOR

JURISDICTION

DATE
FILED

FILE NUMBER

LAPSE
DATE

UCC-3
CONTINUATIONS

144.

Renex Dialysis Clinic of Bloomfield, Inc

Secretary of State of New Jersey

08/05/11

26060965

08/05/21

File-Stamped UCC-3 CONT received; dated 7/29/21

145.

Renex Dialysis Clinic of Bridgeton, Inc.

Secretary of State of Missouri

10/20/06

20060114446K

10/20/21

146.

Renex Dialysis Clinic of Creve Coeur, Inc.

Secretary of State of Missouri

10/20/06

20060114447M

10/20/21

147.

Renex Dialysis Clinic of Maplewood, Inc.

Secretary of State of Missouri

10/20/06

20060114448A

10/20/21

148.

Renex Dialysis Clinic of Orange, Inc.

Secretary of State of New Jersey

10/20/06

2384977-8

10/20/21

149.

Renex Dialysis Clinic of Pittsburgh, Inc.

Secretary of Commonwealth of Pennsylvania

10/20/06

2006102402287

10/20/21

150.

Renex Dialysis Clinic of South Georgia, Inc.

Fulton County, Georgia

10/24/06

060-2006-013069

10/24/21

151.

Renex Dialysis Clinic of St. Louis, Inc.

Secretary of State of Missouri

10/20/06

20060114449B

10/20/21

152.

Renex Dialysis Clinic of University City, Inc.

Secretary of State of Missouri

10/20/06

20060114451F

10/20/21

153.

Renex Dialysis Facilities, Inc

Secretary of State of Mississippi

10/20/06

20060229272C

10/20/21

154.

San Diego Dialysis Services, Inc.

Secretary of State of Delaware

12/26/01

20020185748

12/26/21

155.

Santa Barbara Community Dialysis Center, Inc.

Secretary of State of California

12/27/01

0136260308

12/27/21

156.

Smyrna Dialysis Center, LLC

Fulton County, Georgia

10/24/06

060-2006-013070

10/24/21

S-D-12


DEBTOR

JURISDICTION

DATE
FILED

FILE NUMBER

LAPSE
DATE

UCC-3
CONTINUATIONS

157.

SSKG, Inc.

Secretary of State of Illinois

10/20/06

011457177

10/20/21

158.

STAT Dialysis Corporation

Secretary of State of Delaware

10/20/06

20063668340

10/20/21

159.

Stone Mountain Dialysis Center, LLC

Fulton County, Georgia

10/24/06

060-2006-013071

10/24/21

160.

Stuttgart Dialysis, LLC

Secretary of State of Arkansas

10/20/06

7128907083

10/20/21

161.

Terrell Dialysis Center, L.L.C.

Secretary of State of Delaware

12/26/01

20020183164

12/26/21

162.

WSKC Dialysis Services, Inc.

Secretary of State of Illinois

01/09/02

004569717

01/09/22

S-D-13


EXHIBIT T

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

FORM OF AGREED UPON PROCEDURES REPORT

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. As part of this agreed upon procedures engagement, we have mutually determined that materiality will be $XXXX. Differences below this threshold 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 March 20  .

1A. For Renal Therapies Group (RTG) and Fresenius Kidney Care (FKC), obtain the March 20 Monthly Investor Reports (IR) from management and compare gross receivables (line item 1), all components of the Net Receivables Balance calculation (line items 6-24), Self-Pay Receivables (line items 28-33), Accrued but not billed Receivables (line items 34-36), all components of the Monthly Activity calculation (line items 37-47) 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 the March 20 Monthly Investor Report (IR), recalculate the individual components of the Loss Reserve, Dilution Reserve, Discount Reserve, Servicing Fee Reserve, Dilution Ratio, Loss-to-Liquidation Ratio and the Default Ratio from data obtained from NMC’s internal systems and verify with ratios reported.

1C. For FKC, obtain from management a list of dilutive items, inclusive of write-offs < 270 days on disputed claims, contractual adjustments, void & re-bills, and other dilutions, issued in March 20   select 60 and complete the following:

Inquire with management for an explanation of each dilutive item. Document management’s response.

i.

Obtain from management a list of each obligor, amount (include both the voided amount and the rebilled amount) and reason for the issuance of the credit memo. Document management’s response in the Report in table format.

ii.

Calculate and document in the Report the average dilution horizon for each sample selected above. The dilution horizon is defined as the period from which a credit memo is issued relative to the original date which the invoice was issued, except for Void & re-bills which will be calculated as the average of the original and ending claim dates to the void & re-bill date for those claims.

T-1


Ø

Calculate the weighted average (by dollar amount) dilution horizon for the entire sample

1D. For RTG obtain from management a list of credit memos issued in March 20 , haphazardly select 20 credit memos and complete the following for each selection:

i.

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.

ii.

Document in which monthly activity line item the credit memos were reported.

iii.

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.

1E. For FKC, obtain from management a list of contractual adjustments issued in March 20   , haphazardly select 20 and complete the following for each selection:

i.

Document management’s explanations for each contractual adjustment.

ii.

Obtain from management a list of each obligor, amount and reason for the issuance of the contractual adjustment. Document management’s response in the Report in table format.

2A. Obtain from management the agings as represented in the March 20 ​ ​Investor Reports and compare amounts to the Company’s ATB and to the GL (RTG and FKC). 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.

2B. For RTG and FKC 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 FKC, select 60 claims from the March 31, 20 ​ ​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.

2D. For FKC, for March 20   , 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 appropriate system to determine if the cash received was applied to the proper claim.

2E. For RTG, obtain from management the March 2021 monthly cash collections report, haphazardly select 20 cash receipts for RTG and determine if cash was applied to the correct invoices/claims.

2F. For RTG, from the 20 invoices/claims selected in March 20 ​ ​in Procedure 2E, determine if the invoices/claims were aged properly in March 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.

T-2


3A. For RTG and FKC, obtain from management a list of payment terms. Document the list of payment terms received from management.

3B. For RTG and FKC, 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 RTG and FKC, compare the monthly write-off amounts as represented in the March 20 IR to the monthly activity in the March 20 roll-forward of the allowance for doubtful accounts. Document management’s explanation for any differences greater than $100,000.

4B. For RTG, obtain from management a listing of the 20 largest RTG accounts that were written-off in March 20 . For FKC, obtain a listing of written off claims in March 20 and haphazardly select 60 write-offs. Request of management the reason for the write-off and note the response.

4C. For RTG and FKC, inquire of management and note the response of the following:

i.

What is the methodology for reserving expected bad debts?

ii.

Has the Company reserved for any non-delinquent or non-defaulted accounts?

iii.

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 RTG and FKC, 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.

5. For RTG and FKC, obtain a list of the primary obligors as listed in the IR as of March 20 and compare this information by tracing amounts to ATB. Obtain and document management’s reconciliation of differences.

6A. For RTG and FKC, 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 Account Schedule, an updated schedule for the TAA. Document any differences between the two listings.

6B. For RTG and FKC 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 RTG and FKC, from the listing obtained in procedure 6A, haphazardly select one March 20 bank statement to GL reconciliation for a 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.

T-3


6D. For RTG and FKC, obtain from management a schedule for March 20 summarizing collections within the bank statement from Procedure 6C by method of receipt, in a format similar to the one shown below.

A.
Method of Receipt ($000s)

March 20

%

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)

(a)

TOTAL COLLECTIONS DEPOSITED per Bank Statement(s)

$

100%

(b)

Reconciling items

6E. For RTG and FKC, compare information on this schedule to the bank statements and accounting records.

6F. For RTG and FKC, 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 listed in procedure 6A. Document management’s response. 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.

6G. For FKC, inquire of management as to when the last 15 payments (using March 31, 20 as the cut-off date) were received related to the government cost reporting process, the amount, and where the funds were initially deposited (i.e. was payment made to one of the depository accounts listed in the schedule to the TAA?). Document management’s response.

6H. For FKC, inquire of management regarding the timing of Medicare cost reporting, noting recovery percentage for the cost recovery period of 20 which was submitted and collected in 20 .

7. For RTG and FKC, obtain from management a schedule of the 10 largest commercial and hospital obligors and their respective receivables balances as of March 20 .

8. Obtain from management a schedule of Transferring Affiliates that are included in the securitization program as of March 20 .

9. For FKC, reconcile the total balance of the receivables from all of the Transferring Affiliates on 3/31/ ​ ​to the FKC balance on the IR for March 20 .

T-4


10. Obtain a listing of the Transferring Affiliates and compare it to the most recent TAA as well as a listing of Fresenius Medical Care Holdings, Inc’s affiliates. Document any affiliate that is not a wholly-owned subsidiary of Fresenius Medical Care Holdings, Inc. If the list includes any joint ventures, inquire from management the date it was converted to a joint venture and the balance of receivables as of March 20 . Document management’s response.

11. For FKC, (1) inquire from management as to how receivables are identified and excluded from being sold to NMC Funding Corporation after a Transferring Affiliate is converted to a joint venture. (Inquire whether receivables that originated by joint ventures are sold to NMC Funding Corporation, document management’s response). Document management’s response. Inquire as to how and when obligors are instructed to begin paying to an account controlled by the joint venture. Document management’s response.

12. For FKC, obtain from management and document the total amount due to joint ventures that was deposited into accounts controlled by Transferring Affiliates during March 20 . Inquire about the process to handle these deposits and the average amount of time that lapses before these funds are sent to the correct account controlled by the joint venture.

13. For FKC, obtain from management and document the total amount due to Transferring Affiliates that was deposited into accounts controlled by joint ventures during March 20 . Inquire about the process to handle these deposits and the average amount of time that lapses before these funds are sent to the correct account controlled by the Transferring Affiliate.

14. For FKC, select 20 cash collections received in March 20 ​ ​related to receivables that were aged greater than 300 days at the time they were collected and recalculate the accounts receivable aging bucket based on the OOD aging date.

15. For FKC, haphazardly select 30 receivables that are listed as accrued not yet billed on the March 20 ​ ​Investor Report and recalculate the number of days since the service performance date of such receivable. Document each receivable that has been maintained on the books and records of the Originating Entity for more than 120 days past the service performance date of such receivable.

16. For FKC, (1) select 30 receivables that are identified as Short Term Unbilled Government Program Receivables on the March 20 ​ ​Investor Report and recalculate the number of days since the servicer performance date of such receivable and determine if the period from the related service performance date to the date on which such Receivable was billed (or as of the last day of the related collection period, if such Receivable remained unbilled) was consistent with the definition of “Short Term”; and (2) recalculate the Excess Unbilled Receivables Amount based on the information identified in the March 20 ​ ​Investor Report.

17. 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.

T-5


18. Inquire of management as to whether there have been any changes made to the Company’s credit and collection policy since March 31, 20 ​ ​through the date of this report. Document management’s response.

T-6


Exhibit 10.7

EXECUTION VERSION

THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT

between

NATIONAL MEDICAL CARE, INC.

as Seller

and

NMC FUNDING CORPORATION

as Purchaser

Dated as of August 11, 2021


TABLE OF CONTENTS

    

Page

Article I

DEFINITIONS

SECTION 1.1.

Certain Defined Terms

1

SECTION 1.2.

Other Terms

10

SECTION 1.3.

Computation of Time Periods

10

Article II

PURCHASE AND SETTLEMENTS

SECTION 2.1.

Purchases of Receivables; Agreement to Purchase

11

SECTION 2.2.

Payment for the Purchases

12

SECTION 2.3.

Purchase Price Credit Adjustments

14

SECTION 2.4.

Payments and Computations, Etc

14

SECTION 2.5.

Transfer of Records to Purchaser

14

SECTION 2.6.

Protection of Ownership Interest of the Purchaser

15

SECTION 2.7.

Additional Transferring Affiliates

16

SECTION 2.8.

Letters of Credit

16

Article III

REPRESENTATIONS AND WARRANTIES

SECTION 3.1.

Representations and Warranties of the Seller

17

SECTION 3.2.

Reaffirmation of Representations and Warranties by the Seller

22

Article IV

CONDITIONS PRECEDENT

SECTION 4.1.

Conditions Precedent to Closing

22

SECTION 4.2.

Conditions Precedent to Purchases

22

Article V

COVENANTS

SECTION 5.1.

Affirmative Covenants of Seller

23

SECTION 5.2.

Negative Covenants of the Seller

28

-i-


Article VI

ADMINISTRATION AND COLLECTION

    

SECTION 6.1.

Collection of Receivables

31

SECTION 6.2.

Rights of Purchaser

32

SECTION 6.3.

Special Accounts

32

SECTION 6.4.

Responsibilities of the Seller

33

SECTION 6.5.

Reports

33

Article VII

SELLER DEFAULTS

SECTION 7.1.

Seller Defaults

33

SECTION 7.2.

Remedies

35

Article VIII

INDEMNIFICATION; EXPENSES

SECTION 8.1.

Indemnities by the Seller

35

SECTION 8.2.

Other Costs and Expenses

38

Article IX

MISCELLANEOUS

SECTION 9.1.

Term of Agreement

39

SECTION 9.2.

Waivers; Amendments

39

SECTION 9.3.

Notices

39

SECTION 9.4.

Governing Law; Submission to Jurisdiction; Integration.

40

SECTION 9.5.

Severability; Counterparts

41

SECTION 9.6.

Successors and Assigns

41

SECTION 9.7.

Waiver of Confidentiality

42

SECTION 9.8.

Confidentiality Agreement

42

SECTION 9.9.

Bankruptcy Petitions

42

SECTION 9.10.

Purchase Termination

43

SECTION 9.11.

Subordination

43

SECTION 9.12.

Characterization of the Transactions Contemplated by the Agreement

43

-ii-


EXHIBITS

    

EXHIBIT A

[RESERVED]

EXHIBIT B

[RESERVED]

EXHIBIT C

[RESERVED]

EXHIBIT D

Form of Special Account Letter

EXHIBIT E

Form of Subordinated Note

EXHIBIT F

List of Actions and Suits

EXHIBIT G

Location of Records

EXHIBIT H

List of Seller’s Subsidiaries, Divisions and Tradenames

EXHIBIT I

Form of Transferring Affiliate Letter

EXHIBIT J

List of Transferring Affiliates, Chief Executive Offices of Transferring Affiliates and Tradenames

EXHIBIT K

Form of Account Agent Agreement

-iii-


THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT

This THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (this “Agreement”) dated as of August 11, 2021, is entered into by and between NATIONAL MEDICAL CARE, INC., a Delaware corporation, as seller (the “Seller”), and NMC FUNDING CORPORATION, a Delaware corporation, as purchaser (the “Purchaser”).

PRELIMINARY STATEMENTS

WHEREAS, the Seller and the Purchaser are parties to that certain Second Amended and Restated Receivables Purchase Agreement dated as of January 17, 2013 (as amended prior to the date hereof, the “Existing Receivables Purchase Agreement”); and

WHEREAS, the parties hereto desire to amend and restate the Existing Receivables Purchase Agreement in its entirety.

NOW, THEREFORE, the parties hereby agree as follows:

ARTICLE I

DEFINITIONS

SECTION 1.1. Certain Defined Terms. Capitalized terms used and not otherwise defined herein have the meanings assigned to such terms in the TAA. 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 K hereto.

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

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

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

Aggregate Unpaids” has the meaning specified in the TAA.

Agreement” has the meaning specified in the Preamble hereto.


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

Base Rate” has the meaning specified in the TAA.

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

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.

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.

Closing Date” means August 11, 2021.

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 and any successor agency or agencies charged with such responsibilities.

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

Collection Account” has the meaning specified in the TAA.

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

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Collection Date” means the date on which the TAA shall be terminated in accordance with its terms and all of the Aggregate Unpaids thereunder paid in full.

Commercial Obligor” means any Obligor referred to in clause (C) or (E) of the definition of “Obligor”.

Concentration Account” has the meaning specified in the TAA.

Concentration Account Agreement” has the meaning specified in the TAA.

Concentration Account Bank” has the meaning specified in the TAA.

Concentration Account Notice” has the meaning specified in the TAA.

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

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

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 Purchaser an Account Agent Agreement.

Eligible Receivable” has the meaning set forth in the TAA, except that, for purposes of this Agreement (a) the criteria listed in clause (ii) of the definition of Eligible Receivable in the TAA shall not be applicable and (b) references in clauses (iii) and (v) of such definition in the TAA to “the time of the initial creation of an interest therein hereunder” shall instead be deemed to mean and refer to “the time such Receivable was sold or transferred by the Seller to the Purchaser hereunder.”

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.

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

3


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).

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, 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” shall have the meaning specified in the TAA.

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.

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.

Indebtedness” or “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,

4


acceptances, or other instruments, (v) obligations in respect of leases as determined under IFRS 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.

Intermediate Concentration Account” has the meaning specified in the TAA.

Intermediate Concentration Account Agreement” has the meaning specified in the TAA.

Intermediate Concentration Account Bank” has the meaning specified in the TAA.

Intermediate Concentration Account Notice” has the meaning specified in the TAA.

Investor Report” has the meaning specified in the TAA.

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

L/C Issuer” has the meaning specified in the TAA.

Letter of Credit” has the meaning specified in the TAA.

Letter of Credit Application” has the meaning specified in the TAA.

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 Seller or any other Originating Entity to charge or collect a material portion of the Receivables or Related Security, (iii) the ability of (A) the Seller or any other 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 of any such provision or, if the Seller shall fail to do so, to perform or observe any such provision required to be performed or observed by the Seller under this Agreement or any other Transaction Document to which the Seller is party, in each case pursuant to the Parent Agreement, (iv) the ability of (A) any Transferring Affiliate to perform or observe in any material respect any provision of the Transferring Affiliate Letter or, in the case of any Designated Account Agent, the applicable Account Agent Agreement or (B) of FME KGaA or FMCH to cause the due and punctual performance and observation by such Transferring Affiliate or such Designated Account Agent of any such provision or, if such Transferring Affiliate or such Designated Account Agent shall fail to do so, to perform or observe any such provision, in each case, pursuant to the Parent Agreement, (v) the financial condition, operations, businesses or properties of FME KGaA, FMCH, the Seller or the Transferor or (vi) the interests of the Purchaser and/or its assignees under the Transaction Documents.

5


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.

Moody’s” means Moody’s Investors Service, Inc.

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

Net Investment” has the meaning specified in the TAA.

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; provided that 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, shall be deemed for purposes of this Agreement to be one Obligor with respect to such Receivable:

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

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

6


(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.

(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.

Parent Agreement” has the meaning specified in the TAA.

Parent Group” means, collectively, FME KGaA, FMCH, the Seller, the Originating Entities and their Subsidiaries and Affiliates (other than the Purchaser), and “Parent Group Member” means any such Person individually.

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 Seller Default” means an event which but for the lapse of time or the giving of notice, or both, would constitute a Seller Default.

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

Proceeds” means “proceeds” as defined in Section 9-102 of the UCC.

7


Purchase” means, on any Business Day, the sale, assignment, contribution, transfer and/or other conveyance of Receivables, together with the Related Assets with respect thereto, from the Seller to the Purchaser in accordance with the terms of Article II hereof.

Purchase Price” means, with respect to any Purchase on any date, the aggregate price to be paid to the Seller in connection therewith, which shall be an amount equal to (i) the Outstanding Balance of the Receivables that are the subject of such Purchase, minus any Contractual Adjustments in respect of such Receivables, multiplied by (ii) the Purchase Price Percentage then in effect.

Purchase Price Credit” means a credit in favor of the Purchaser against the Purchase Price otherwise due and payable by the Purchaser hereunder.

Purchase Price Percentage” means 97%, or such other percentage as may be agreed from time to time by the Purchaser and the Seller and which would provide the Purchaser with a reasonable return on its Purchases hereunder after taking into account (i) the time value of money based upon the anticipated dates of collection of such Receivables and the cost to the Purchaser of financing its investment in such Receivables during such period including, without limitation, any costs as may be associated with the procurement of Letters of Credit and (ii) the risk of nonpayment by the Obligors. The Seller and the Purchaser may agree from time to time to change the Purchase Price Percentage based on changes in the items described in clauses (i) and (ii) above, provided that any change to the Purchase Price Percentage shall apply only prospectively and shall not affect the Purchase Price in respect of Purchases made prior to the date on which the Purchaser and the Seller agree to make such change.

Purchaser” means NMC Funding Corporation, and its successors and permitted

assigns.

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

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.

Recharacterization” has the meaning specified in Section 9.12(a).

Related Assets” has the meaning specified in Section 2.1(a) hereof.

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

(i)    all of the Seller’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

8


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 Seller under the Transferring Affiliate Letter, together with all financing statements filed in connection therewith against the Transferring Affiliates; and

(vi)    all Proceeds of any of the foregoing.

Responsible Officer” means any of the Chief Executive Officer, the President, the Chief Financial Officer, the Controller, the Treasurer or an Assistant Treasurer of the Seller.

Revolving Loan” has the meaning specified in Section 2.2(b).

Seller” means National Medical Care, Inc., a Delaware corporation, and its successors and permitted assigns.

Seller Default” has the meaning specified in Section 7.1.

Settlement Date” means (i) the last Business Day of each calendar month with respect to the immediately preceding calendar month and (ii) any additional day designated by the Purchaser.

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 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.

9


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

Subordinated Note” has the meaning specified in Section 2.2(b) hereof.

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.

TAA” means that certain Eighth Amended and Restated Transfer and Administration Agreement dated as of the Closing Date 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”, the Persons parties thereto as “Administrative Agents” and The Bank of Nova Scotia, as “Agent”, as the same has been or may hereafter be from time to time amended, restated, supplemented or otherwise modified.

Termination Date” means the date, occurring after the “Termination Date” under the TAA, which the parties hereto agree shall be the Termination Date for purposes of this Agreement.

Transaction Documents” has the meaning specified in the TAA.

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

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

US Government Obligor” means any Obligor that is the 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”.

Voting Stock” shall have the meaning specified in the TAA.

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

10


Receivables Purchase Agreement in its entirety. This Agreement is not intended to constitute a novation of the Existing Receivables Purchase Agreement. Upon the effectiveness of this Agreement (the “Effective Date”), each reference to the Existing Receivables Purchase Agreement in any other document, instrument or agreement executed and/or delivered in connection therewith shall mean and be a reference to this Agreement.

ARTICLE II

PURCHASE AND SETTLEMENTS

SECTION 2.1. Purchases of Receivables; Agreement to Purchase. (a) Pursuant to the Existing Receivables Purchase Agreement, the Purchaser purchased from the Seller all of the Seller’s right, title and interest in and to each and every Receivable existing as of the Original Closing Date and Receivables arising thereafter. Subject to the terms and conditions hereinafter set forth, the Purchaser hereby purchases from the Seller, and the Seller hereby sells, transfers, assigns and otherwise conveys to the Purchaser, all of the Seller’s right, title and interest in and to each and every Receivable existing as of the Closing Date as well as each and every Receivable which may arise at any time thereafter until the Termination Date, together, in each case, with the Related Security, Collections and Proceeds with respect thereto (such Related Security, Collections and Proceeds, collectively, the “Related Assets”). All of the Seller’s right, title and interest in and to all Receivables and the Related Assets with respect thereto arising on each day prior to the Termination Date shall, without further action of any type being required on the part of the Purchaser or the Seller (and notwithstanding any delay in making payment of the Purchase Price therefor, or any delay in making any notation reflecting payment of such Purchase Price), be automatically transferred on such day to the Purchaser, whereupon the Purchaser shall have the obligation to pay the Purchase Price in respect thereof in the manner, at the time and otherwise in accordance with the terms specified in this Agreement. Prior to paying the Purchase Price hereunder in respect of any Purchase, the Purchaser may request of the Seller, and the Seller shall deliver, such approvals, opinions, information, reports or documents as the Purchaser may reasonably request.

(b)     It is the intention of the parties hereto that each Purchase of Receivables made hereunder shall constitute a true sale of such Receivables and the Related Assets with respect thereto (including, in the case of Receivables, a “sale of accounts,” as such term is used in Article 9 of the UCC), which sales shall, in each case, be absolute and irrevocable and provide the Purchaser with the full benefits of ownership of such Receivables and Related Assets. Except for the Purchase Price Credits owed pursuant to Section 2.3 hereof, each sale of Receivables by the Seller to the Purchaser is made without recourse to the Seller; provided, however, that (i) the Seller shall be liable to the Purchaser for all representations, warranties and covenants made by the Seller pursuant to the terms of this Agreement or any other Transaction Document, and (ii) such sale does not constitute and is not intended to result in an assumption by the Purchaser of any obligation of the Seller, any Transferring Affiliate or any other Person arising under or in connection with the Receivables, the Related Assets and/or the related Contracts. In view of the intention of the parties hereto that the Purchases of Receivables made hereunder shall constitute sales of such Receivables rather than a loan secured by such Receivables, the Seller agrees on or prior to the date hereof to mark its master data processing records relating to the Receivables with a legend, acceptable to the Purchaser, evidencing that the

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Purchaser has purchased such Receivables as provided in this Agreement and to note in its financial statements that its Receivables have been sold to the Purchaser.

(c)      Notwithstanding any other provision of this Agreement to the contrary, no Purchases shall be made hereunder from and after the time of any Event of Bankruptcy with respect to the Seller or the Purchaser.

SECTION 2.2. Payment for the Purchases. (a) The Purchase Price for each Purchase of Receivables hereunder shall be payable in full by the Purchaser to the Seller by one or any combination of the following means:

(i)by the issuance of equity in the manner contemplated in that certain Stockholder and Subscription Agreement dated as of August 28, 1997 between the Seller and the Purchaser or in such other manner as may from time to time be agreed as between the Seller and the Purchaser or as may be deemed to have been effected in accordance with the terms hereof (the action of the Seller giving rise to any such issuance of equity being a “Capital Contribution”);

(ii)by the delivery of immediately available funds, to the extent of funds then available to the Purchaser or then being made available to the Purchaser in connection with its subsequent sale of an undivided percentage ownership interest in such Receivables to the Agent (on behalf of any Conduit Investor or the Bank Investors, as applicable) under the TAA;

(iii)by the delivery of a Letter of Credit procured by and for the account of the Purchaser in accordance with Section 2.8, in form and substance satisfactory to the Seller, for the benefit of such beneficiary as shall have been designated by the Seller; and/or

(iv)

by the application of the proceeds of a Revolving Loan.

The Purchase Price for each Purchase shall be payable in full by the Purchaser to the Seller or its designee on the date of such Purchase, except that the Purchaser may, with respect to any such Purchase, offset against such Purchase Price any amounts owed by the Seller to the Purchaser hereunder and which have become due but remain unpaid.

(b)      If the Purchase Price in respect of any Purchase shall exceed an amount equal to (i) the aggregate amount then being received by the Purchaser from any Transfers under the TAA plus (ii) the aggregate face amount of all Letters of Credit then being issued at the request of the Seller in connection with such Purchase, the Purchaser shall, with notice to the Seller, pay such shortfall (a “Purchase Price Shortfall”) by borrowing from the Seller a revolving loan (each a “Revolving Loan”), and the Seller, subject to the remaining provisions of this paragraph, irrevocably agrees to advance, and shall be deemed to have advanced, a Revolving Loan in the amount so specified by the Purchaser; provided, however, that no such Revolving Loan shall be made to the Purchaser, if, after giving effect thereto, either (x) the aggregate outstanding amount of the Revolving Loans would exceed the aggregate Outstanding Balance of the Eligible Receivables minus the aggregate Net Investment outstanding at such time under the TAA or (y) the Purchaser’s net worth would be less than an amount (the “Minimum Net Worth”) that is at such time the greater of (A) $5,000,000 or (B) three percent (3.00%) of the sum of the

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aggregate Net Investment and the aggregate face amount of all Letters of Credit outstanding at such time under the TAA. The Revolving Loans shall be evidenced by, and shall be payable in accordance with the terms and provisions of, a promissory note in the form of Exhibit E hereto (the “Subordinated Note”) and shall be payable solely from funds which the Purchaser is not required under the TAA to set aside for the benefit of, or otherwise pay over to, the Agent, any Conduit Investor and/or the Bank Investors.

(c)     If, in respect of any Purchase, there shall continue to be a Purchase Price Shortfall after applying the proceeds of any Revolving Loan extended on the date of such Purchase, then the Seller shall be deemed to have made a Capital Contribution having a value equal to the otherwise unpaid portion of the total Purchase Price owed on such day.

(d)     The respective Purchase Prices for the Purchases made during any calendar month shall be settled on a monthly basis on the Settlement Date occurring in the succeeding calendar month, such settlement to be made based on the information contained in the Investor Report in respect of such calendar month. With respect to any such settlement, each adjustment to the outstanding balance of the Subordinated Note made pursuant to this Article II and each Capital Contribution made by the Seller to the Purchaser pursuant to this Article II shall be deemed to have occurred and shall be effective as of the last Business Day of the calendar month to which such settlement relates. Notwithstanding the foregoing, to the extent the Purchaser receives either Collections or proceeds from any Incremental Transfers, which, in either case, it is not required to hold in trust for, or remit to, the Agent, any Conduit Investor and/or any of the Bank Investors pursuant to the TAA, then the Purchaser shall remit such funds to the Seller (net of any funds needed to pay existing expenses of the Purchaser which are then accrued and unpaid) in the following order of application: first to pay the Purchase Price for any Receivables Purchased from the Seller; second to pay amounts owed by the Purchaser to the Seller under the Subordinated Note; provided, that if on any Settlement Date it is determined that the aggregate amount of funds so remitted by the Purchaser to the Seller during any calendar month exceeded the aggregate of the amounts described in clauses first and second above due and payable by the Purchaser to the Seller during such calendar month, such excess funds shall be returned forthwith by the Seller to the Purchaser. The Purchaser will be responsible for payment of all fees and expenses in connection with the issuance of the Letters of Credit. The Purchaser will be the sole account party on all Letters of Credit and the Seller will have no recourse liability to any L/C Issuer or any reimbursement obligations in respect of any Letter of Credit.

SECTION 2.3. Purchase Price Credit Adjustments. (a) If on any day the Outstanding Balance of a Receivable is either (x) reduced as a result of any defective, rejected or returned merchandise or services, any discount, credit, Contractual Adjustment, rebate, dispute, warranty claim, repossessed or returned goods, chargeback, allowance, any billing adjustment or other adjustment, or (y) reduced or canceled as a result of a setoff or offset in respect of any claim by any Person (whether such claim arises out of the same or a related transaction or an unrelated transaction), the Purchaser shall be entitled to a Purchase Price Credit in an amount equal to the full amount of such reduction or cancellation. In addition, 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

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respect to a Receivable (whether on or after the date of any transfer thereof to the Purchaser 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” in the TAA or becomes a Diluted Government Program Receivable, then, in any such case, the Purchaser shall be entitled to a Purchase Price Credit in an amount equal the Outstanding Balance of such Receivable (determined without giving effect to any write-off with respect thereto). If any Purchase Price Credit to which the Purchaser is entitled pursuant to this Section 2.3 exceeds the Purchase Price of the Receivables to be sold hereunder on any date, then the Seller shall pay the remaining amount of such Purchase Price Credit to the Purchaser in cash on the next succeeding Business Day; provided that, if the Termination Date has not occurred, the Seller shall be allowed to deduct the remaining amount of such Purchase Price Credit from any indebtedness owed to it under the Subordinated Note.

(b)     Any payment by an Obligor in respect of any indebtedness owed by it to the Seller shall, except as otherwise specified by such Obligor or otherwise required by contract or law and unless otherwise instructed by the Purchaser, be applied as a Collection of any Receivable of such Obligor which was included in a Purchase hereunder (starting with the oldest such Receivable) before being applied to any other receivable or other indebtedness of such Obligor.

SECTION 2.4. Payments and Computations, Etc. All amounts to be paid or deposited by the Seller hereunder shall be paid or deposited in accordance with the terms hereof no later than 11:00 a.m. (New York City time) on the day when due in immediately available funds. The Seller shall, to the extent permitted by law, pay to the Purchaser, upon demand, interest on all amounts not paid or deposited when due hereunder at a rate equal to 2% per annum plus the Base Rate. All computations of interest 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 the Purchaser of amounts payable by the Seller hereunder shall be binding upon the Seller absent manifest error.

SECTION 2.5. Transfer of Records to Purchaser. (a) In connection with the Purchases of Receivables hereunder, the Seller hereby sells, transfers, assigns and otherwise conveys to the Purchaser all of the Seller’s right and title to and interest in the Records relating to all Receivables included in any Purchase hereunder, without the need for any further documentation in connection with any such Purchase. In connection with such transfer, the Seller hereby grants to each of the Purchaser and the Collection Agent (including, without limitation, any successor Collection Agent appointed in accordance with the TAA) an irrevocable, non-exclusive license to use, without royalty or payment of any kind, all software now or hereafter used by the Seller to account for the Receivables, to the extent necessary to administer the Receivables, whether such software is owned by the Seller or is owned by others and used by the Seller under license agreements with respect thereto (the “Software”). As of the date hereof, with respect to all Software now existing, either (i) no consent by any licensor of the Seller to such grant is required, (ii) if any such consent is required, such consent has been obtained, or (iii) the data administered and managed with the use of such Software is in a form such that other types of software that are generally available may be used to administer and manage such data in the same fashion as then being administered and managed with the applicable Software. If after the date hereof the consent by any licensor of the Seller to such

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grant shall be required, the Seller shall promptly obtain such consent. The license granted hereby shall be irrevocable, and shall not expire until the date on which this Agreement shall terminate in accordance with its terms.

(b)     The Seller shall take such action requested by the Purchaser and/or the Agent, from time to time hereafter, that may be reasonably necessary or appropriate to ensure that the Purchaser (and its assignees) has (i) an enforceable ownership interest in the Records relating to the Receivables purchased from the Seller hereunder and (ii) an enforceable right (whether by license or sublicense or otherwise) to use all of the computer software used to account for the Receivables and/or to recreate such Records.

SECTION 2.6. Protection of Ownership Interest of the Purchaser. (a) The Seller agrees that it will, and will cause each Transferring Affiliate 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 Purchaser or the Agent may reasonably request in order to perfect or protect the ownership interest of the Purchaser in the Receivables and Related Assets with respect thereto or to enable the Purchaser to exercise or enforce any of its rights and remedies hereunder. Without limiting the foregoing, the Seller will, upon the request of the Purchaser or the Agent, in order to accurately reflect the purchase and sale of the Receivables and Related Assets hereunder, execute and file such financing or continuation statements or amendments thereto or assignments thereof as may be requested by the Purchaser or the Agent. The Seller shall, upon request of the Purchaser or the Agent, obtain such additional search reports as the Purchaser or the Agent shall request. To the fullest extent permitted by applicable law, each of the Purchaser and the Agent shall be permitted to sign and file continuation statements and amendments thereto and assignments thereof without the Seller’s signature. The Seller shall not, and shall not permit any Transferring Affiliate to, change its respective name, identity or corporate structure (within the meaning of Section 9-507 of the UCC as in effect in any applicable state) nor relocate its respective chief executive office or any office where Records are kept unless it shall have: (i) given each of the Purchaser and the Agent at least thirty (30) days prior notice thereof and (ii) prepared at Seller’s expense and delivered to each of the Purchaser and the Agent all financing statements, instruments and other documents necessary to preserve and protect the Purchaser’s ownership interest in the Receivables and the Related Assets with respect thereto or requested by the Purchaser or the Agent in connection with such change or relocation. Any filings under the UCC or otherwise that are occasioned by such change in name or location shall be made at the expense of the Seller.

(b)    In addition and without limiting the authority of the Purchaser or the Agent set forth in subsection (a) above, but subject to subsection (c) below, the Seller shall, and shall cause each Transferring Affiliate to (i) instruct any or all of the Special Account Banks (which instructions shall be maintained in full force and effect) 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

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event the Seller shall at any time determine, for any of the reasons described in subsection (c) below, that the Seller or any Transferring Affiliate shall be unable to comply fully with the requirements of this subsection (b), the Seller shall promptly so advise the Purchaser and the Agent, and the Purchaser, the Agent and the Seller shall commence discussions with a view toward implementing an alternative arrangement therefor satisfactory to the Purchaser and the Agent.

(c)     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 2.7. Additional Transferring Affiliates. (a) If (i) one or more direct or indirect wholly-owned subsidiaries of the Seller (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 Seller and the Transferring Affiliates or (ii) the Seller 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 the Seller, any or all of the wholly-owned subsidiaries referred to in clauses (i) and (ii) may, with the prior written consent of the Purchaser and the Agent (which consent shall not be unreasonably withheld or delayed), become Transferring Affiliates under this Agreement upon delivery to the Purchaser and the 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 pursuant to Section 4.1, together with such other instruments, documents and agreements as either the Purchaser or the Agent may reasonably request in connection therewith.

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

SECTION 2.8. Letters of Credit. (a) Upon the request of the Seller, and on the terms and conditions for issuing Letters of Credit under the TAA (including any limitations therein on the amount of any such issuance), the Purchaser agrees to request one or more L/C Issuers to issue, on any date of Purchase specified by the Seller, Letters of Credit in favor of the beneficiaries specified by the Seller. The aggregate face amount of the Letters of Credit being issued on the date of any Purchase on behalf of the Seller shall constitute a credit against the aggregate Purchase Price payable by the Purchaser to the Seller on the date of such Purchase

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pursuant to Section 2.1. To the extent that the aggregate face amount of the Letters of Credit being issued on any Settlement Date exceeds the aggregate Purchase Price payable by the Purchaser to the Seller on such Settlement Date, such excess shall be deemed to be a (i) reduction in the outstanding principal balance of (and, to the extent necessary, the accrued but unpaid interest on) the Subordinated Note payable to the Seller and/or (ii) a reduction in the Purchase Price payable on the date of any Purchase immediately following the date any such Letter of Credit is issued. In the event that any such Letter of Credit issued pursuant to this Section 2.8 (i) expires or is cancelled or otherwise terminated with all or any portion of its face amount undrawn, (ii) has its face amount decreased (for a reason other than a drawing having been made thereunder) or (iii) the Purchaser’s Reimbursement Obligation in respect thereof is reduced for any reason other than by virtue of a payment made in respect of a drawing thereunder, then an amount equal to such undrawn amount, such decrease or such reduction, as the case may be, shall either be paid by the Purchaser in cash to the Seller on the next Settlement Date or, if the Purchaser does not then have cash available therefor, shall be deemed to be (x) first, added to the outstanding principal balance of the Subordinated Note issued to the Seller to the extent that such addition would not cause the Purchaser’s net worth to be less than the Minimum Net Worth, and (y) second¸ a Capital Contribution to the capital of the Purchaser. Under no circumstances shall the Seller (or any Affiliate thereof (other than the Purchaser)) have any reimbursement or recourse obligations in respect of any Letter of Credit.

(b)     In the event that the Seller requests one or more Letters of Credit hereunder, the Seller shall on a timely basis provide the Purchaser with such information as is necessary for the Purchaser to obtain such Letters of Credit from one or more L/C Issuers, and shall otherwise comply with any requests for information made by the Purchaser or the applicable L/C Issuers to facilitate the issuance of such Letters of Credit.

(c)     The Seller acknowledges the limitations on liability of each L/C Issuer contained in the TAA, including, without limitation, under Section 2.22 thereof.

ARTICLE III

REPRESENTATIONS AND WARRANTIES

SECTION 3.1. Representations and Warranties of the Seller. The Seller represents and warrants to the Purchaser that:

(a)     Corporate Existence and Power. The Seller 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 Seller 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 Seller of this Agreement and the other Transaction

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Documents to which the Seller is a party are within the Seller’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 2.6 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 By-laws of the Seller or of any agreement, judgment, injunction, order, writ, decree or other instrument binding upon the Seller or result in the creation or imposition of any Adverse Claim on the assets of the Seller or any of its Subsidiaries (except as contemplated by Section 2.6 hereof).

(c)     Binding Effect. Each of this Agreement and the other Transaction Documents to which the Seller is a party constitutes the legal, valid and binding obligation of the Seller, 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 Purchase hereunder, the Seller shall be the owner of all of the Receivables included in such Purchase, free and clear of all Adverse Claims. On or prior to each Purchase hereunder, all financing statements and other documents required to be recorded or filed, or notices to Obligors required to be given, in order to perfect and protect the ownership interest of the Purchaser against all creditors of and purchasers from the Seller will have been duly given to such Obligors or filed in each filing office necessary for such purpose, as applicable, 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 Seller (including, without limitation, each Investor Report and each Cash Collections Report (in each case, to the extent such Investor Report and Cash Collections Report is prepared by the Seller or any other Parent Group Member or contains any information supplied by the Seller or any such Parent Group Member), any reports delivered pursuant to Section 6.5 and the Seller’s financial statements) to the Purchaser, any Conduit Investor, any Bank Investor, the Agent or any Administrative Agent for purposes of or in connection with this Agreement or any other Transaction Document or any transaction contemplated hereby or thereby is, and all such information hereafter furnished by the Seller to the Purchaser, any Conduit Investor, any Bank 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 Seller has filed all tax returns (federal, state and local) required to be filed and has paid or made adequate provision for the payment of all taxes, assessments and other governmental charges.

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

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(h)     Use of Proceeds. No proceeds of any Purchase will be used by the Seller 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 Seller are located at the address of the Seller indicated in Section 9.3 hereof and the offices where the Seller keeps substantially all its Records, are located at the address(es) described on Exhibit G or such other locations notified to the Purchaser and the Agent in accordance with Section 2.6 hereof in jurisdictions where all action required by Section 2.6 hereof has been taken and completed. The principal place of business and chief executive office of each Transferring Affiliate are located at the address of such Transferring Affiliate indicated in Exhibit J hereof and the offices where the each Transferring Affiliate keeps substantially all its Records, are located at the address(es) specified on Exhibit J with respect to such Transferring Affiliate or such other locations notified to the Purchaser and the Agent in accordance with Section 2.6 hereof in jurisdictions where all action required by Section 2.6 hereof has been taken and completed.

(j)     Good Title. Upon each Purchase, the Purchaser shall acquire all legal and equitable title to, and a valid and perfected first priority ownership interest in, each Receivable that exists on the date of such Purchase and in the Related Security, Collections and other Proceeds with respect thereto free and clear of any Adverse Claim.

(k)     Tradenames, Etc. As of the date hereof: (i) the Seller’s chief executive office is located at the address for notices set forth in Section 9.3 hereof; (ii) the Seller has no subsidiaries or divisions other than those listed on Exhibit H hereto; (iii) the Seller 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), except, in each case, as disclosed on Exhibit H hereto; and (iv) none of the Transferring Affiliates has, within the last five (5) years, operated under any tradename 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 disclosed on Exhibit J.

(l)     Nature of Receivables. Each Receivable purchased by, or otherwise transferred to, the Purchaser hereunder shall be an “eligible asset” as defined in Rule 3a-7 under the Investment Company Act, of 1940, as amended, and, except as otherwise disclosed in writing on or prior to the date of such purchase or transfer, shall be an Eligible Receivable as of such date. Without limiting the generality of the foregoing, no Receivable that is or has been treated as an Eligible Receivable for any purpose hereunder or under the TAA was originated by any Transferring Affiliate following the date it ceased to be a direct or indirect wholly-owned Subsidiary of FMCH.

(m)     Amount of Receivables. As of the date of each Investor Report issued under the TAA, such Investor Report set forth true, accurate and complete information as to the matters described therein.

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(n)     Credit and Collection Policy. Since September 30, 2012, there have been no material changes in the Credit and Collection Policy other than as permitted hereunder. Since such date, no material adverse change has occurred in the overall rate of collection of the Receivables.

(o)     Collections and Servicing. Since September 30, 2012, there has been no material adverse change in the ability of the Collection Agent (to the extent it is the Seller or any other Parent Group Member) to service and collect the Receivables.

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

(q)     Not an Investment Company. The Seller 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 Seller and its ERISA Affiliates is in compliance in all material respects with ERISA and no lien exists in favor of the Pension Benefit Guaranty Corporation on any of the Receivables.

(s)     Special Account Banks and Intermediate Concentration Account Banks. The names and addresses of all the Special Account Banks (and, if applicable, the Designated Account Agents in respect thereof), the Intermediate Concentration Account Banks, if any, together with the account numbers of the Special Accounts at such Special Account Banks and of the Intermediate Concentration Account Banks, are specified in the Account Schedule (or at such other Special Account Banks, with such other Special Accounts, Intermediate Concentration Accounts or with such other Designated Account Agents as have been notified to the Purchaser and the Agent in accordance with Section 5.2(e)). The Account Schedule sets forth all depositary accounts and locations to which Obligors are instructed to remit payments on the Receivables. Neither the Seller nor any Transferring Affiliate has granted to any Person dominion and control over any Special Account or Intermediate Concentration Account, or the right to take dominion and control over any Special Account or Intermediate Concentration Account at a future time or upon the occurrence of a future event and each Special Account and each Intermediate Concentration Account is otherwise free and clear of any Adverse Claim.

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

(u)     Preference; Voidability (this Agreement). With respect to each Receivable transferred to the Purchaser under this Agreement, the Purchaser has given reasonably equivalent value to the Seller in consideration for such transfer of such Receivable and the Related Assets with respect thereto, no such transfer has been made for or on account of an antecedent debt owed by the Seller to the Purchaser and no such transfer is or may be voidable under any Section of the Bankruptcy Code.

(v)     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

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the Transferring Affiliate Letter, such purchase being deemed to have been made on the date such Receivable was created (or on the Original Closing Date, in the case of a Receivable outstanding on such 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 (A) in cash, (B) by procuring a Letter of Credit for and at the direction of such Transferring Affiliate, (C) by way of a credit to such Transferring Affiliate in the appropriate intercompany account or (D) by any combination of the foregoing, 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.

(w)     Preference; Voidability (Transferring Affiliates). The Seller shall have given reasonably equivalent value to each Transferring Affiliate in consideration for the transfer to the Seller of the Receivables and Related Security from such Transferring Affiliate, and each such transfer shall not have 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.

(x)     Ownership. FME KGaA owns, directly or indirectly, 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 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 Purchaser is owned by the Seller, free and clear of any Adverse Claim.

(y)     Representations and Warranties of the Transferring Affiliates. Each of the representations and warranties of the Transferring Affiliates set forth in the Transferring Affiliate Letter are true and correct in all material respects and the Seller hereby remakes all such representations and warranties for the benefit of the Purchaser.

(z)     Leased Equipment. With respect to any dialysis or other medical equipment that has been leased by any Person to the Seller in respect of which such lessor has filed a UCC financing statement against the Seller (“Subject Leased Equipment”), (i) the arrangement relating to such Subject Leased Equipment is intended in good faith by such lessor and the Seller to be an “operating lease” and not a secured financing; (ii) the property covered by each such UCC financing statement is limited to the applicable Subject Leased Equipment and its proceeds; (iii) less than five percent (5.0%) of the Subject Leased Equipment is retained by the Seller, with the balance of the Subject Leased Equipment being used by Transferring Affiliates (and other affiliates that are not Transferring Affiliates) under unsecured intercompany

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usage or subleasing arrangements between the Seller and such Transferring Affiliates (or such other affiliates); and (iv) neither the Seller nor any lessor of Subject Leased Equipment has filed any UCC financing statement or similar instrument against any Transferring Affiliate in respect of any Subject Leased Equipment.

(aa)   Anti-Corruption Laws and Sanctions. Policies and procedures have been implemented and maintained by or on behalf of the Seller that are designed to achieve compliance by the Seller and its Subsidiaries, directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, giving due regard to the nature of such Person’s business and activities, and the Seller, its Subsidiaries and, to the knowledge of the Seller, its officers, employees, directors and agents acting in any capacity in connection with or directly benefitting from the sale, transfer or assignment of the Receivables under the RPA, are in compliance, in all material respects, (i) with Anti-Corruption Laws, except for the matters described on Exhibit F, and (ii) applicable Sanctions. None of (a) the Seller or any of its Subsidiaries or, to the knowledge of the Seller, any of its directors, officers, employees, or agents that will act in any capacity in connection with or directly benefit from the sale, transfer or assignment of the Receivables under the RPA, is a Sanctioned Person, and (b) neither the Seller nor any of its Subsidiaries is organized or resident in a Sanctioned Country. No sale, transfer or assignment of any Receivables or use of proceeds of any of the foregoing by the Seller has in any manner given rise to a violation of Anti-Corruption Laws or applicable Sanctions.

Any document, instrument, certificate or notice delivered to the Purchaser (or any of its assignees) hereunder shall be deemed a representation and warranty by the Seller.

SECTION 3.2. Reaffirmation of Representations and Warranties by the Seller. On each day that a Purchase is made hereunder, the Seller, by accepting the proceeds of such Purchase, 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.

ARTICLE IV

CONDITIONS PRECEDENT

SECTION 4.1. Conditions Precedent to Closing. The effectiveness of this Agreement is subject to the conditions precedent that (i) the Purchaser shall have received copies of each of the documents, instruments, certificates and opinions described in Section 4.1 of the TAA and (ii) each of the conditions precedent to the execution, delivery and effectiveness of the TAA shall have been satisfied and/or waived in accordance with the terms thereof.

SECTION 4.2. Conditions Precedent to Purchases. The obligation of the Purchaser to make a Purchase on any Business Day is subject to the conditions precedent that:

(a)     the Seller shall have delivered to the Purchaser, in form and substance satisfactory to the Purchaser, all reports required to have been delivered by it pursuant to Section 6.5, together with such additional information as may be reasonably requested by the Purchaser; and

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(b)    the representations and warranties set forth in Article III shall be true and correct on and as of the date of such Purchase as though made on and as of such date, both before and after giving effect to such Purchase and the application of the proceeds therefrom.

By accepting the proceeds of any Purchase, the Seller shall be deemed to have represented and warranted that the foregoing conditions precedent are satisfied.

Notwithstanding any failure or inability of the Seller to satisfy any of the foregoing conditions precedent on any date in respect of any Purchase, title to the Receivables and the Related Assets with respect thereto included in such Purchase shall vest in the Purchaser without any action required on the part of the Purchaser (but without impairment of its obligation to pay the Purchase Price in respect thereof in accordance with the terms of this Agreement), and the Purchaser (as owner of such Receivables) shall have a claim against the Seller arising in respect of the representations and warranties made by the Seller in connection with such Purchase.

ARTICLE V

COVENANTS

SECTION 5.1. Affirmative Covenants of Seller. At all times from the date hereof to the Collection Date, unless each of the Purchaser and the Agent shall otherwise consent in writing:

(a)Financial Reporting. The Seller will, and will cause 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 of the Purchaser and the Agent:

(i)           Annual Reporting. As soon as available and in any event within 95 days after the close of the fiscal year of FMCH, a company-prepared consolidated balance sheet of FMCH and its Subsidiaries as of the end of such fiscal year and the related company-prepared consolidated statements of income and retained earnings for such fiscal year.

(ii)          Quarterly Reporting. As soon as available and in any event within 50 days after the end of the second fiscal quarter of FMCH, a company-prepared consolidated balance sheet of FMCH and its Subsidiaries as of the end of such quarter and the related company-prepared consolidated statements of income and retained earnings for such quarterly period.

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.

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(iii)         Compliance Certificate. Together with the financial statements required hereunder, a compliance certificate signed by a Responsible Officer stating that (x) the attached financial statements have been prepared in accordance with GAAP and accurately reflect the financial condition of the applicable Person and (y) to the best of such Person’s knowledge, no Seller Default or Potential Seller Default exists, or if any Seller Default or Potential Seller Default exists, stating the nature and status thereof.

(iv)         Notice of Seller Default or Potential Seller Default. 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 Seller Default or each Potential Seller Default, a statement of a Responsible Officer setting forth details of such Seller Default or Potential Seller Default and the action which the Seller 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 any provision of 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. On an annual basis, at least 30 days prior to the Commitment Termination Date, a complete copy of the Credit and Collection Policy then in effect, together with a summary of any material changes from the most recent Credit and Collection Policy delivered to the Administrative Agents pursuant to Section 4.1(o) or Section 5.1(a) of the TAA.

(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 Seller or any ERISA Affiliate of 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 Seller or any ERISA Affiliates of 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 Seller).

(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 Agent’s execution of a confidentiality agreement in form and substance satisfactory to both the Seller and the Agent, as soon as possible and in any event (A) within five Business Days after any Originating Entity receives any subpoena, request for information, or any other document relating to any possible violation by any Originating

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Entity of, or failure by 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 Purchaser or 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 the Purchaser or the 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 any Originating Entity.

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

(b)          Conduct of Business. The Seller (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 other Originating Entity to do each of the foregoing in respect of such Originating Entity; provided, however, that the Seller shall not be required to cause any Terminated Transferring Affiliate (DT) to carry on and conduct its business in substantially the same manner and in substantially the same fields of enterprise as it is presently or had conducted.

(c)          Compliance with Laws. The Seller will, and will cause each other 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 Seller will, and will cause each other Originating Entity to, furnish to each of the Purchaser and the Agent from time to time such information with respect to the Receivables as the Purchaser or the Agent may reasonably request, including, without limitation, listings identifying the Obligor and the Outstanding Balance for each Receivable. The Seller will, and will cause each other Originating Entity to, at any time and from time to time during regular business hours permit the Purchaser, the Agent, or any of their respective 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 Seller or such other Originating Entity, as applicable, for the purpose of examining such Records, and to discuss matters relating to Receivables or the Seller’s or such other 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 Seller or such other Originating Entity, as applicable, having knowledge of such matters; provided, however, that the Purchaser acknowledges that in exercising the rights and privileges conferred in this Section 5.1(d) it or its agents or representatives may, from time to time, obtain knowledge of information, practices, books, correspondence and records (“Confidential

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Information”) identified to it in writing as being of a confidential nature or in which the Seller or another Originating Entity has a proprietary interest. The Purchaser 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 Seller 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 Seller; 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 5.1(d)), (ii) is required or appropriate in response to any summons or subpoena in connection with any litigation or (iii) is required by law to be disclosed; and provided, further, however, that such Confidential Information may be disclosed to (A) the Agent, any Conduit Investor, any Bank Investor, any Credit Support Provider and any Liquidity Provider, subject to the terms of Section 5.1(d) of the TAA, (B) the Agent’s or any such Person’s legal counsel, auditors and other business advisors, (C) any such Person’s government regulators and (D) any Conduit Investor’s rating agencies, 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 the Agent has agreed to keep confidential such Confidential Information as provided in clauses

(x) and (y) above.

(e)          Keeping of Records and Books of Account. The Seller will, and will cause each other 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 Seller will, and will cause each other Originating Entity to, give each of the Purchaser and the Agent notice of any material change in the administrative and operating procedures of the Seller or such other Originating Entity, as applicable, referred to in the previous sentence.

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

(g)          Credit and Collection Policies. The Seller will, and will cause each other 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. The Seller shall, and shall cause each other Originating Entity to (i) 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 all Obligors to cause all Collections to be deposited directly into a Special

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Account, (iii) 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, and (iv) instruct (or 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 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, (v) 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 (vi) instruct the Concentration Account Bank to give to each Special Account Bank on each banking day notice to transfer to the Concentration Account all Collections on deposit during such banking day in the Special Accounts at such Special Account Bank (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, the Seller shall, by not later than the date that occurs six months after the Original Closing Date, (i) close, or cause the applicable Originating Entity to close, such Special Account and (ii) instruct, and cause each other 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 Seller shall, and shall cause each other 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 of its receipt thereof (or, if such day is not a Business Day, the next Business Day following such receipt) to the Concentration Account, or Intermediate Concentration Account, as applicable, all Collections received from time to time by the Seller or such other Originating Entity, as the case may be.”

(j)           Sale Treatment. The Seller will not, and will not permit any Transferring Affiliate to, account for (including for accounting and tax purposes), or otherwise treat, the transactions contemplated by this Agreement, the Transferring Affiliate Letter in any manner other than as a sale of Receivables by the Seller to the Purchaser or by the applicable Transferring Affiliate to the Seller, as applicable. In addition, the Seller shall, and shall cause each Transferring Affiliate 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 transactions contemplated hereby, by the TAA , by the Transferring Affiliate Letter, and the interest of the Purchaser in the Transferred Assets.

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(k)          Separate Business. The Seller acknowledges that the Agent, the Conduit Investors and the Bank Investors are entering into the transactions contemplated in the TAA in reliance upon the Purchaser’s identity as a separate legal entity from the Seller. Therefore, from and after the Original Closing Date, the Seller shall take all actions reasonably required to maintain the Purchaser’s status as a separate legal entity and to make it manifest to third parties that the Purchaser is an entity with assets and liabilities distinct from those of the Seller or any other member of the Parent Group. Without limiting the generality of the foregoing, the Seller shall (i) not hold itself out to third parties as liable for the debts of the Purchaser nor purport to own the Receivables or any of the other assets acquired by the Purchaser hereunder, (ii) shall take all other actions necessary on its part to ensure that the Purchaser is at all times in compliance with the covenants set forth in Section 5.1(k) of the TAA and (iii) shall cause all tax liabilities arising in connection with the transactions contemplated herein or otherwise to be allocated between the Seller and the Purchaser on an arm’s-length basis.

(l)           Payment to the Transferring Affiliates. With respect to any Receivable purchased by the Seller from any Transferring Affiliate, the Seller shall cause such sale to be effected under, and in strict compliance with the terms of, the Transferring Affiliate Letter, including, without limitation, the terms relating to the amount and timing of payments to be made to each Transferring Affiliate in respect of the purchase price for such Receivable.

(m)         Performance and Enforcement of the Transferring Affiliate Letter. The Seller shall timely perform the obligations required to be performed by the Seller, and shall vigorously enforce the rights and remedies accorded to the Seller, under the Transferring Affiliate Letter. The Seller shall take all actions to perfect and enforce its rights and interests (and the rights and interests of the Purchaser, the Agent, the Conduit Investors and the Bank Investors, as assignees of the Seller) under the Transferring Affiliate Letter as the Purchaser or the 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.

(n)          Anti-Corruption Laws and Sanctions. Policies and procedures will be maintained and enforced by or on behalf of the Seller that are designed in good faith and in a commercially reasonable manner to promote and achieve compliance, in the reasonable judgment of the Seller, by the Seller and its directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, in each case giving due regard to the nature of the Seller’s business and activities.

SECTION 5.2. Negative Covenants of the Seller. At all times from the date hereof to the Collection Date, unless the Agent shall otherwise consent in writing:

(a)          No Sales, Liens, Etc. Except as otherwise provided herein, the Seller will not, and will not permit any other 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 any other

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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 Seller will not, and will not permit any other 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 Seller will not, and will not permit any other 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 Seller will not, and will not permit any other Originating Entity to, merge with or into or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions), all or substantially all of its assets (whether now owned or hereafter acquired and except as contemplated in the Transaction Documents) to any Person, except that (i) any Transferring Affiliate may merge or consolidate with any other Transferring Affiliate if, but only if, each of the Purchaser and the Agent shall have received at least ten Business Days’ prior written notice of such merger or consolidation and (ii) the Seller may merge or consolidate with any other Person if, but only if, (x) immediately after giving effect to such merger or consolidation, no Seller Default or Potential Seller Default would exist and (y) each of the Purchaser and the Agent shall have received a written agreement, in form and substance satisfactory to each of the Purchaser and the Agent, executed by the corporation resulting from such merger or consolidation, under which agreement such corporation shall become the Seller hereunder and the Collection Agent under the TAA, and shall assume the duties, obligations and liabilities of the Seller and the Collection Agent under this Agreement, the TAA, 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 of the TAA; provided, however, that the Seller shall not be required to comply with this covenant in connection with any merger, consolidation, transfer, lease or other disposition of assets by an Originating Entity (other than the Seller) if the aggregate Outstanding Balance of all Receivables originated by all other Originating Entities with respect to which the Seller is in compliance with this covenant is at least $1,050,000,000.

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

(i)           add or terminate any bank as a Special Account Bank from those listed in the Account Schedule hereto, or make any change in its instructions to Obligors regarding payments to be made to any Special Account Bank; provided that the Seller may, and may permit any Originating Entity to, (A) add any bank as a Special Account Bank for purposes of this Agreement at any time following delivery to the Agent of written notice of such addition and a Special Account Letter duly executed by such bank,

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and (B) terminate any Special Account Bank at any time following delivery to the Agent of written notice of such termination and evidence satisfactory to the Agent that the affected Obligors shall have been instructed to remit all subsequent Collections to another Special Account; or

(ii)          make any change in the instructions contained in any Special Account Letter; or

(iii)         add or terminate any Person as a Designated Account Agent from those listed in the Account Schedule 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 Seller may, and may permit any Originating Entity to,

(A)   add 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 the Agent of written notice of such addition and an Account Agent Agreement duly executed by such Person, and (B) terminate any Designated Account Agent at any time following delivery to the Agent of written notice of such termination and evidence satisfactory to the Agent that either an Originating Entity or a new Designated Account Agent shall have been added in accordance with the terms of this Agreement to succeed such terminated Designated Account Agent in respect of the applicable Special Account or the affected Obligors shall have been instructed to remit all subsequent Collections to another Special Account.

(f)           Deposits to Special Accounts, Intermediate Concentration Account and the Concentration Account. The Seller will not, and will not permit any of the other 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 except to the extent permitted in accordance with Section 5.2(f) of the TAA.

(g)          Change of Name, Etc. The Seller will not, and will not permit any other Originating Entity to, change its name, identity or structure or the location of its chief executive office, unless at least 10 days prior to the effective date of any such change the Seller delivers to the Agent (i) such documents, instruments or agreements, executed by the Seller and/or the affected Originating Entities, as are necessary to reflect such change and to continue the perfection of the Purchaser’s ownership interests in the Affected Assets and (ii) new or revised Special Account Letters or Intermediate Concentration Account Letter executed by the Special Account Banks or the Intermediate Concentration Account Bank which reflect such change and enable the Agent to continue to exercise its rights contained in Section 2.8 of the TAA.

(h)          Amendment to Transferring Affiliate Letter, Etc.. The Seller will not, and will not permit any other Originating Entity to, (i) amend, modify, or supplement the Transferring Affiliate Letter 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

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any Initial Transfer Document, in each case except with the prior written consent of the Purchaser, the Agent and each Administrative Agent; nor shall the Seller take, or permit any other Originating Entity to take, any other action under any of the Initial Transfer Documents that shall have a material adverse effect on the Purchaser, the Agent, any Conduit Investor or any Bank Investor or which is inconsistent with the terms of this Agreement.

(i)           ERISA Matters. The Seller will not, and will not permit any other 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 Seller, 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 Seller, 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 Seller, in the aggregate, involve a payment of money or an incurrence of liability by the Seller, any Originating Entity or any ERISA Affiliate thereof, in an amount in excess of $500,000.

(j)           Anti-Corruption Laws and Sanctions. The Seller will not sell, transfer or assign any Receivables, and shall procure that its directors, officers, employees and agents shall not use, the proceeds of any sale, transfer or assignment of any Receivables (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (B) for the purpose of funding or financing any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, in each case to the extent doing so would violate any Sanctions, or (C) in any other manner that would result in liability to any party hereto under any applicable Sanctions or the violation of any Sanctions by any such Person.

ARTICLE VI

ADMINISTRATION AND COLLECTION

SECTION 6.1. Collection of Receivables. The servicing, administering and collection of the Receivables shall be conducted by the Collection Agent. For so long as the Person acting as Collection Agent is the Seller, the Seller shall perform its duties as Collection Agent under the TAA in accordance with the terms thereof, it being understood that it shall hold all Receivables, Related Assets, Records and Collections which it receives from time to time solely in its capacity as Collection Agent and shall not claim or retain any legal or beneficial title or interest therein. If at any time the Collection Agent is a Person other than the Seller, the Seller agrees promptly to provide all information requested by the Collection Agent in connection with the performance of its responsibilities under the TAA, and agrees to exert its best efforts to assist any successor Collection Agent in assuming and performing its duties as Collection Agent.

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SECTION 6.2. Rights of Purchaser. At any time:

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

(ii)          The Seller shall, at the Purchaser’s request (or at the request of the Agent, as assignee of the Purchaser) and at the Seller’s expense, give notice of the Purchaser’s ownership of Receivables and/or the Agent’s interest in the Receivables to each Obligor and direct that payments be made directly to the Purchaser (or the Agent, as the case may be) or its designee.

(iii)         The Seller shall, at the Purchaser’s or the Agent’s request, (A) assemble all of the Records, and shall make the same available to the Purchaser, the Agent or its designee at a place selected by the Purchaser, 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 Purchaser and 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.

Notwithstanding the foregoing clauses (i), (ii) and (iii), neither the Purchaser nor any of its assigns shall at any time direct, or cause 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 such Originating Entity in respect of such Receivables or Related Security directly to either the Intermediate Concentration Account or the Concentration Account or to the Purchaser, the Purchaser’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.

SECTION 6.3. Special Accounts. The Seller hereby transfers to the Purchaser, and shall cause each of the Transferring Affiliates to transfer to the Purchaser, effective concurrently with the initial Purchase hereunder, all right, title and interest of such Originating Entity in and to each Special Account, together with each lock-box related thereto and all agreements between such Originating Entity and the applicable Special Account Bank. The Seller hereby authorizes the Purchaser and its assigns to take, to the extent permitted by applicable law, any and all steps in the Seller’s or any other Originating Entity’s name (which power, in the case of each Transferring Affiliate, the Seller is authorized to grant pursuant to authority granted to the Seller under the Transferring Affiliate Letter) and on behalf of the Seller and such Originating Entity necessary or desirable, in the determination of the Purchaser or such assign, to collect all amounts due under any and all Receivables, including, without limitation, endorsing the Seller’s or such Originating Entity’s name on checks and other instruments representing Collections and enforcing such Receivables and the related Contracts; provided, however, that neither the Purchaser 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 payment of amounts due or to become due to the Seller or any Transferring Affiliate in respect of such Receivables or Related Security directly to either the

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Intermediate Concentration Account or the Concentration Account or to the Purchaser, the Purchaser’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.

SECTION 6.4. Responsibilities of the Seller. Anything herein to the contrary notwithstanding, the Seller shall, and/or shall cause each other Originating Entity to, (i) perform all of such Person’s obligations under the Contracts related to the Receivables to the same extent as if interests in such Receivables had not been sold hereunder and under the Transferring Affiliate Letter, and the exercise by the Purchaser of its rights hereunder and under the Transferring Affiliate Letter shall not relieve 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 Purchaser nor any of its assignees 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.

SECTION 6.5. Reports. On or prior to each Settlement Date, the Seller shall prepare and forward to the Purchaser a report setting forth the following with respect to the immediately preceding calendar month: (i) the aggregate Outstanding Balance of Receivables included in the Purchases occurring during such month, (ii) the aggregate Purchase Price payable to the Seller in respect of such Purchases, specifying the Purchase Price Percentage in effect for such month and the aggregate Purchase Price Credits deducted in calculating such aggregate Purchase Price, (iii) the aggregate amount of funds received by the Seller during such month and the aggregate amount of any amounts drawn under any Letters of Credit, in each case which are to be applied toward the aggregate Purchase Price owing for such month pursuant to Section 2.2(d), (iv) the increase or decrease in the amount outstanding under the Subordinated Note as of the end of such month after giving effect to the application of funds toward the aggregate Purchase Price, (v) the amount of any capital contribution made by the Seller to the Purchaser as of the end of such month and (vi) such other information concerning the Receivables as the Purchaser may reasonably request. Promptly following any request therefor by the Purchaser, the Seller shall prepare and provide to the Purchaser a listing by Obligor of all Receivables together with an aging of such Receivables.

ARTICLE VII

SELLER DEFAULTS

SECTION 7.1. Seller Defaults. The occurrence of any one or more of the following events shall constitute a Seller Default:

(a)          the Seller shall fail to make any payment or deposit to be made by it hereunder when due; or

(b)          any representation, warranty, certification or statement made or deemed made by the Seller in this Agreement, by FME KGaA or FMCH under the Parent Agreement, or by the Seller, 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

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pursuant hereto or thereto, shall prove to have been incorrect in any material respect when made or deemed made; or

(c)          the Seller 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 Seller Default 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 Seller Default unless a senior officer of the Seller (including, the Treasurer, any Assistant Treasurer, General Counsel or any assistant or associate general counsel of the Seller) shall have known of the occurrence of such Potential Seller Default 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), 5.2(a), 5.2(c), 5.2(d), 5.2(e), 5.2(f), 5.2(g), 5.2(h) or 6.2; 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)          failure of the Seller, FME KGaA, FMCH 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 €250,000,000 (or its equivalent in any currency) was created or is governed; or the default by the Seller, FME KGaA, FMCH 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, FME KGaA, FMCH or any Transferring Affiliate greater than €250,000,000 (or its equivalent in any currency) 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, FME KGaA, FMCH or any Transferring Affiliate greater than €250,000,000 (or its equivalent in any currency) 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 Seller, any other Originating Entity, FME KGaA or FMCH; provided that, in the case of any Event of Bankruptcy relating to any Transferring Affiliate, such Event of Bankruptcy shall not constitute a Seller Default hereunder if at such time the “Percentage Factor” (as defined in the TAA) does not exceed the “Maximum Percentage Factor” (as defined in the TAA) after reducing the “Net Receivables Balance” (as defined in the TAA) by an amount equal to the aggregate Outstanding Balance of all Receivables otherwise included in the calculation of the 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

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(f)           after giving effect to any Purchase hereunder, the Purchaser shall, for any reason, fail or cease to have all right, title and interest in and to all of the Receivables which are to be included in such Purchase, together with the Related Security and Collections with respect thereto, free and clear of any Adverse Claim, subject only to the interests therein of the Agent, on behalf of the Conduit Investors and the Bank Investors; or

(g)          the Transferring Affiliate Letter 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 Purchaser, the Agent, any Conduit Investor or any Bank 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

(h)          either FMCH or the Seller shall enter into any transaction or merger whereby it is not the surviving entity; or

(i)there shall have occurred any material adverse change in the operations of any of FMCH or the Seller since December 31, 2011 or any other Material Adverse Effect shall have occurred; or

(j)           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

(k)          (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, 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) or a Change of Control (as defined under the TAA).

SECTION 7.2. Remedies. (a) Upon the occurrence of any Seller Default, the Purchaser 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.

ARTICLE VIII

INDEMNIFICATION; EXPENSES

SECTION 8.1. Indemnities by the Seller. Without limiting any other rights which the Purchaser may have hereunder or under applicable law, the Seller hereby agrees to

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indemnify the Purchaser and any successors and permitted assigns (including, without limitation, the Conduit Investors, the Bank Investors, the Agent, the Administrative Agents, the Collateral Agents, the Liquidity Providers and the Credit Support Providers) 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 any Liquidity Provider, any Credit Support Provider, the Agent, any Administrative Agent, any Collateral Agent or the Purchaser, 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 Seller or any Parent Group Member (including any Parent Group Member, in its capacity as the Collection Agent) and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise arising out of or as a result of this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Purchaser and its assigns of Receivables and Related Assets 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 Seller 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 Parent Agreement, the Transferring Affiliate Letter, 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 to vest and maintain vested in the Purchaser a first priority ownership interest in the Affected Assets 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

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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 (if a Parent Group Member or designee thereof) to perform its duties or obligations in accordance with the provisions of the TAA; 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 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;

(xi)         the commingling by the Seller, any other Originating Entity or the Collection Agent (if a Parent Group Member or designee thereof) of Collections of Receivables at any time with other funds;

(xii)        any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Transfers by the Seller or any other Originating Entity, the ownership of any Receivable, Related Security or Contract or any interest therein;

(xiii)       the failure of any Special Account Bank or any Designated Account Agent 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 Seller, any Originating Entity or the Agent (to the extent such Person is entitled to give such instructions in accordance with the terms of the Transaction Documents) whether by reason of the exercise of set-off rights or otherwise;

(xiv)       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 Seller to qualify to do business or file any notice of business activity report or any similar report;

(xv)        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

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set-aside any such transfer or any transfer of any Receivable hereunder under statutory provisions or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code;

(xvi)       any action taken by the Seller, any other 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 any applicable Liquidity Provider Agreement, Credit Support Agreement or the credit support furnished by any applicable Credit Support Provider to the Seller 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 Seller 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;

(xvii)      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 Seller or any Parent Group Member;

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

(xix)       without duplication of any amounts paid by the Seller pursuant to Section 2.3, any cancellation or voiding of a Receivable, any Contractual Adjustment, or any other event or circumstance which gives arise to a “Deemed Collection” under the TAA or a “Purchase Price Credit” under this Agreement.

SECTION 8.2. Other Costs and Expenses. (a) The Seller agrees, upon receipt of a written invoice, to pay or cause to be paid, and to save the Purchaser harmless against liability for the payment of, all reasonable out-of-pocket expenses (including, without limitation, the out-of-pocket expenses payable by the Purchaser under Section 8.4 of the TAA) or intangible, documentary or recording taxes incurred by or on behalf of the Purchaser or any other Indemnified Party (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 Purchaser’s ownership of Receivables and Related Assets with respect thereto) 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 the Purchaser’s enforcement or preservation of rights (including, without limitation, the perfection and protection of the transfers of Receivables and Related Assets under

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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.

(b)    If the Seller fails to perform any of its agreements or obligations under this Agreement, following expiration of any applicable cure period, the Purchaser (or any assignee thereof) may (but shall not be required to) perform, or cause performance of, such agreement or obligation, and the reasonable expenses of the Purchaser (or any such assignee) incurred in connection therewith shall be payable by the Seller upon the Purchaser’s (or any such assignee’s) written demand therefor.

ARTICLE IX

MISCELLANEOUS

SECTION 9.1. Term of Agreement. This Agreement shall terminate on the date after the Collection Date on which (i) no further Purchases are to be made hereunder, (ii) the aggregate Outstanding Balance of Receivables conveyed to the Purchaser hereunder has been reduced to zero or written off in accordance with the Credit and Collection Policy and (iii) the Seller has paid the Purchaser all indemnities, adjustments and other amounts which may be owed to the Purchaser hereunder; provided, however, that (x) the rights and remedies of the Purchaser with respect to any representation and warranty made or deemed to be made by the Seller pursuant to this Agreement, (y) the indemnification and payment provisions of Article VII, and (z) the agreements set forth in Section 9.9 hereof, shall be continuing and shall survive any termination of this Agreement.

SECTION 9.2. Waivers; Amendments. No failure or delay on the part of the Purchaser 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. No provision of this Agreement or the Subordinated Note may be amended, supplemented, modified or waived except in writing by the Seller, the Purchaser, the Agent and each Administrative Agent. It is expressly understood and acknowledged that the prior written consent of the Agent shall be required in order for the Purchaser to grant a consent, authorization or approval requested by the Seller hereunder, or for the Purchaser to agree to any amendment, waiver or other modification to the terms or conditions of this Agreement.

SECTION 9.3. Notices. Except as provided below, all communications and notices provided for hereunder shall be in writing (including writing delivered by way of mail, email, telecopy or other electronic transmission) and shall be given to the other party at its mailing address, email address, or telecopy number set forth below or at such other mailing address, email 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 email or telecopy when such telecopy is transmitted to the email address or telecopy number specified in this Section 9.3 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

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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 9.3.

If to the Purchaser:

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 Seller:

National Medical Care, Inc.

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

SECTION 9.4. 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 SELLER 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. The Seller 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 9.4 shall affect the right of the Purchaser to bring any action or proceeding against the Seller or any of its 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

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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 Seller hereby appoints 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 the Purchaser or any of its assignees.

SECTION 9.5. Severability; Counterparts; Electronic Signatures. 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. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same instrument. The words “execution,” signed,” “signature,” and words of like import in this Agreement or in any other certificate, agreement, exhibit or document related to this Agreement or the other Transaction Documents shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act , any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code, and any other applicable law. 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 9.6. Successors and Assigns. This Agreement shall be binding on the parties hereto and their respective successors and assigns; provided, however, that the Seller may not 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 of the Purchaser and the Agent. The Purchaser 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 Seller. Without limiting the foregoing, the Seller acknowledges that the Purchaser, pursuant to the TAA, shall assign to the Agent, on behalf of the Conduit Investors or the Bank Investors, as the case

41


may be, all of its rights, remedies, powers and privileges hereunder and that each of the Agent, the Conduit Investors and such Bank Investors may further assign such rights, remedies, powers and privileges to the extent permitted in the TAA. The Seller agrees that the Agent, as the assignee of the Purchaser, shall, subject to the terms of the TAA, have the right to enforce this Agreement and to exercise directly all of the Purchaser’s rights and remedies under this Agreement (including, without limitation, the right to give or withhold any consents or approvals of the Purchaser to be given or withheld hereunder) and the Seller agrees to cooperate fully with the Agent in the exercise of such rights and remedies. The Seller further agrees to give to the Agent copies of all notices, reports and other documents it is required to give to the Purchaser hereunder and to permit the Agent the rights of inspection and audit granted to the Purchaser hereunder. In addition, the Seller agrees that to the extent the Purchaser is herein permitted to take any action or to provide any information or report, the Agent may similarly so direct and require (with or without the concurrence of the Purchaser) the Seller to take such action or to provide such information or report.

SECTION 9.7. Waiver of Confidentiality. The Seller hereby consents to the disclosure of any non-public information with respect to it received by the Purchaser, any Conduit Investor, the Agent, any Bank Investor or any Administrative Agent to any of the Purchaser, any Conduit Investor, the Agent, any nationally recognized rating agency rating any Conduit Investor’s Commercial Paper, 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 or the TAA.

SECTION 9.8. Confidentiality Agreement. The Seller hereby agrees that it will not disclose, and will cause each Parent Group Member to refrain from disclosing, the contents of this Agreement or any other proprietary or confidential information of the Purchaser, any Conduit Investor, the Agent, any Administrative Agent, any Collateral Agent, any Liquidity Provider or any Bank Investor to any other Person except (i) its auditors and attorneys, employees or financial advisors (other than any commercial bank) and any nationally recognized rating agency provided such auditors, attorneys, employees financial advisors or rating agencies are informed of the highly confidential nature of such information or (ii) following notice thereof to the Agent, as otherwise required by applicable law (including the federal securities laws) or order of a court of competent jurisdiction.

SECTION 9.9. Bankruptcy Petitions. (a) The Seller 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 Seller will cause each Parent Group Member to not, institute against, or join any other Person in instituting against, any 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 or under the laws of Canada or any province or territory of Canada. For purposes of the foregoing, the term "Conduit Investor" shall include each party identified as a Conduit Investor for purposes of Section 10.9 of the TAA. The provisions of this Section shall survive the termination of this Agreement.

(b)          The Seller hereby covenants and agrees that, prior to the date which is one year and one day after this Agreement shall have terminated in accordance with its terms, it will

42


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.

SECTION 9.10. Purchase Termination. The Seller’s obligation to sell, transfer, assigns and otherwise convey Receivables and Related Assets to the Purchaser hereunder may be terminated at any time by the Seller by giving written notice thereof to Purchaser and the Agent of the Seller’s election to discontinue Purchases hereunder, in which event the Purchase Termination Date (as defined in the TAA) shall thereafter occur on the date specified therefor by the Seller in such notice, but in any event not less than 60 days after the Agent’s receipt of such notice.

SECTION 9.11. Subordination. The Seller agrees that any indebtedness, obligation or claim, it may from time to time hold or otherwise have (including, without limitation any obligation or claim arising in connection with the Revolving Loans) against the Purchaser or any assets or properties of the Purchaser, whether arising hereunder or otherwise existing, shall be subordinate in right of payment to the prior payment in full of any indebtedness or obligation of the Purchaser owing to the Agent, any Administrative Agent, any Conduit Investor or any Bank Investor under the TAA. The subordination provision contained herein is for the direct benefit of, and may be enforced by, the Agent, any Administrative Agent, any Conduit Investor, any Bank Investor and/or any of their respective assignees under the TAA.

SECTION 9.12. Characterization of the Transactions Contemplated by the Agreement. (a) It is the intention of the parties that each Purchase hereunder 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 this Agreement should be deemed a financing and not a sale or such sale shall for any reason be ineffective or unenforceable (any of the foregoing a “Recharacterization”), 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 now or hereafter arising that are sold to the Purchaser pursuant to this Agreement, together with the Related Assets with respect thereto, and that this Agreement shall constitute a security agreement under applicable law.

(b)          In the case of any Recharacterization, each of the Seller and the Purchaser represents and warrants that each remittance of Collections by the Seller to the Purchaser hereunder will have been (i) in payment of a debt incurred by the Seller in the ordinary course of business or financial affairs of the Seller and the Purchaser and (ii) made in the ordinary course of business or financial affairs of the Seller and the Purchaser. In addition, to further protect the interests of the Purchaser and its assigns, the Seller hereby grants to the Purchaser (for the benefit of itself and the other Indemnified Parties) a first priority perfected and continuing security interest in all of the Seller’s right, title and interest in, to and under the Receivables arising after the Termination Date, together with the Related Assets with respect thereto. The security interests deemed granted and granted pursuant to the two preceding sentences shall secure all obligations of the Seller hereunder and under the other Transaction Documents

43


(including, without limitation, all indemnification and other obligations of the Seller under Article VIII of this Agreement). The Seller hereby assigns to the Purchaser all of its rights and remedies under the Transferring Affiliate Letter (and all instruments, documents and agreements executed in connection therewith) with respect to the Receivables and the Related Assets and with respect to any obligations thereunder of any Originating Entity with respect to the Receivables and the Related Assets (including, without limitation, all security interests granted by the Transferring Affiliates under the Transferring Affiliate Letter and all indemnification obligations of the Transferring Affiliates under Section 17 of the Transferring Affiliate Letter).

SECTION 9.13. Perfection Representations. The Perfection Representations shall be a part of the Agreement for all purposes. The Seller hereby makes the representations and warranties set forth in the Perfection Representations as of the date of each sale of Receivables hereunder. The Perfection Representations shall survive termination of this Agreement.

[Remainder of page intentionally left blank]

44


IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amended and Restated Receivables Purchase Agreement as of the date first written above.

NMC FUNDING CORPORATION,

as Purchaser

By:

/s/ Mark Fawcett

Name:

Mark Fawcett

Title:

Treasurer

NATIONAL MEDICAL CARE, INC.,

as Seller

By:

/s/ Mark Fawcett

Name:

Mark Fawcett

Title:

SVP & Treasurer

Signature Page to Third Amended and Restated Receivables Purchase Agreement


EXHIBIT A

[RESERVED]

A-1


EXHIBIT B

[RESERVED]

B-1


EXHIBIT C

[RESERVED]

C-1


EXHIBIT D

to

THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT

FORM OF SPECIAL ACCOUNT LETTER

[Attached]

D-1


EXHIBIT D

FORM OF SPECIAL ACCOUNT BANK LETTER

[for accounts with manual transfer]

[DATE]

[Name and Address of

Special Account Bank]

[Name of Originating Entity]

Ladies and Gentlemen:

Reference is made to our depository 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 andConcentration 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].

In the event that you are directed by the Originating Entity to make any changes to the payment instructions specified in this letter, you are hereby instructed to notify Scotiabank in writing of such change at its address at The Bank of Nova Scotia, as Agent, One Liberty Plaza, 26th Floor, New York, NY 10006, Attention: Asset-Backed Finance, Mid-Office Administration:

William Sun

Judy Bookal

Tel: (212) 225-5331

Tel: (212) 225-5462

Fax: (212) 225-5274

Fax: (212)225-5274

Email: william.sun@scotiabank.com

Email: judy.bookal@scotiabank.com

D-1


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 Funding Corporation and 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:

D-2


FORM OF SPECIAL ACCOUNT BANK LETTER

[for zero balance accounts]

[DATE]

[Name and Address of

Special Account Bank]

[Name of Originating Entity]

Ladies and Gentlemen:

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

This letter confirms that, as of the date hereof, the Account is a zero balance account (“ZBA”) established in accordance with your standard policies and procedures pursuant to which you are instructed to effect a transfer (the “Transfer”) at the end of each banking day of the available balance on deposit in the Account solely to the following account by ZBA transfer (internal book entry):

[Name, number and designation of (i) the Concentration Account and Concentration Account Bank or (ii) the Intermediate Concentration Account, as applicable].

If so directed by the Originating Entity, the Transfer may be accomplished by ACH, wire or other means of transfer. In such event, the Originating Entity will complete any implementation forms required by you to effect any standing transfer instructions in accordance with your standard policies and procedures then in effect.

In the event that you are directed by the Originating Entity to make any changes to the payment instructions specified in this letter, you are hereby instructed to notify Scotiabank in writing of such change at its address at The Bank of Nova Scotia, as Agent, One Liberty Plaza, 26th Floor, New York, NY 10006, Attention: Asset-Backed Finance, Mid-Office Administration:

William Sun

Judy Bookal

Tel: (212) 225-5331

Tel: (212) 225-5462

Fax: (212) 225-5274

Fax: (212)225-5274

Email: william.sun@scotiabank.com

Email: judy.bookal@scotiabank.com

D-3


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 Funding Corporation and 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:

D-4


EXHIBIT E

to

THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT

FORM OF SUBORDINATED NOTE

E-1


Subordinated Revolving Note

Lexington, Massachusetts

August 28, 1997

1.            Note. For value received, the undersigned, NMC Funding Corporation, a Delaware corporation (the Borrower), hereby unconditionally promises to pay to the order of National Medical Care, Inc., a Delaware corporation (the Lender), in lawful money of the United States of America and in immediately available funds, on the Collection Date (as defined below) the aggregate unpaid principal sum outstanding of all Revolving Loans made from time to time by the Lender to the Borrower pursuant to and in accordance with the terms of that certain Receivables Purchase Agreement dated as of August 28, 1997 between the Lender and the Borrower (as amended, restated, supplemented or otherwise modified from time to time, the Purchase Agreement). Reference to Section 2.2 of the Purchase Agreement is hereby made for a statement of the terms and conditions under which the loans evidenced hereby have been and will be made. The Collection Date shall be the later to occur of (i) the Termination Date under that certain Transfer and Administration Agreement dated as of even date herewith (as the same may be amended, restated, supplemented or otherwise modified from time to time, the TAA) among the Borrower, Enterprise Funding Corporation (the Company), certain Bank Investors from time to time party thereto (together with the Company, the Investors), National Medical Care, Inc. as Collection Agent and NationsBank, NA., as Agent for the Investors, and (ii) the date all of the Aggregate Unpaids under the TAA shall have been repaid in full and all other obligations of the Borrower to the Investors and the Agent thereunder or in connection therewith shall have been indefeasibly satisfied in full (such Aggregate Unpaids and other obligations being the Senior Claim). All terms which are capitalized and used herein and which are not otherwise specifically defined herein shall have the meanings ascribed to such terms in the Purchase Agreement.

2.            Interest.

(a)          The Borrower further promises to pay interest on the outstanding unpaid principal amount of any Revolving Loans from the date hereof until payment in full hereof at a rate per annum equal to the one-month LIBOR rate (as reported in the Bloomberg proprietary online service) plus 1.5% (the Interest Rate). The Interest Rate shall be re-set on the first Business Day of each month, based on the rate reported in Bloomberg on that date, and the re-set rate shall be in effect during the month then beginning.

(b)          If the Borrower shall default in the payment of any principal hereof, the Borrower promises to, on demand, pay interest at the rate of the Interest Rate plus 1.0% on any such unpaid amounts, from the date such payment is due to the date of actual payment.

(c)          Interest shall be payable on the first calendar day of each month (or, if such day is not a Business Day, the next following Business Day) in arrears, provided, however, that the Borrower may elect, on the date any interest payment is due hereunder, to defer such payment and upon such election the amount of interest due but unpaid on such date shall constitute principal under this Subordinated Revolving Note.

Page 1


3.           Principal Payments.

(a)          The outstanding principal of any loan made under this Subordinated Revolving Note shall be due and payable on the Collection Date and may be repaid or prepaid at any time without premium or penalty.

(b)          The Lender is authorized and directed by the Borrower to enter in the Lender’s books and records the date and amount of each Revolving Loan made by it which is evidenced by this Subordinated Revolving Note and the amount of each payment of principal made by the Borrower, and absent manifest error, such entries shall constitute prima facie evidence of the accuracy of the information so entered; provided that neither the failure of the Lender to make any such entry or any error therein shall expand, limit or affect the obligations of the Borrower hereunder.

4.            Subordination. The indebtedness evidenced by this Subordinated Revolving Note is subordinated to the prior payment in full of all of the Borrower’s obligations under the TAA. The subordination provisions contained herein are for the direct benefit of, and may be enforced by, the Agent and the Investors and/or any of their assignees (collectively, the Senior Claimants) under the TAA. Until the Collection Date, the Lender shall not demand, accelerate, sue for, take, receive or accept from the Borrower, directly or indirectly, in cash or other property or by set-off or any other manner (including, without limitation, from or by way of collateral) any payment or security of all or any of the indebtedness under this Subordinated Revolving Note or exercise any remedies or take any action or proceeding to enforce the same. The Lender hereby agrees that it will not institute against the Borrower any proceeding of the type constituting an Event of Bankruptcy unless and until the date that is one year and one day after the Collection Date has occurred. Nothing in this paragraph shall restrict the Borrower from paying, or the Lender from requesting, any payments under this Subordinated Revolving Note so long as (i) the Borrower is not required under the TAA to set aside the funds proposed to be used for such payments for the benefit of, or otherwise pay over such funds to, any of the Senior Claimants, (ii) no Termination Event or Potential Termination Event shall have occurred and then be continuing under the TAA and no Collection Agent Default shall have occurred and then be continuing under the TAA and (iii) the making of such payment would not otherwise violate the terms and provisions of either the Purchase Agreement or the TAA. Should any payment, distribution or security or proceeds thereof be received by the Lender in violation of the immediately preceding sentence, the Lender agrees that such payment shall be segregated, received and held in trust for the benefit of, and deemed to be the property of, and shall be immediately paid over and delivered to the Agent for the benefit of the Senior Claimants.

5.            Bankruptcy; Insolvency. Upon the occurrence of any Event of Bankruptcy involving the Borrower as debtor, then and in any such event the Senior Claimants shall receive payment in full of all amounts due or to become due on or in respect of the Senior Claim (including Discount accruing under the TAA after the commencement of any such proceeding, whether or not any or all of such Discount is an allowable claim in any such proceeding) before the Lender shall be entitled to receive any payment on account of this Subordinated Revolving Note, and to that end, any payment or distribution of assets of the Borrower of any kind or character, whether in cash, securities or other property, in any applicable insolvency proceeding, which would otherwise be payable to or deliverable upon or with respect to any or all

Page 2


indebtedness under this Subordinated Revolving Note, is hereby assigned to and shall be paid or delivered by the Person making such payment or delivery (whether a trustee in bankruptcy, a receiver, custodian or liquidating trustee or otherwise) directly to the Agent for application to, or as collateral for the payment of, the Senior Claim until such Senior Claim shall have been paid in full and satisfied.

6.            Amendments. This Subordinated Revolving Note shall not be amended, modified or terminated except in accordance with Section 9.2 of the Purchase Agreement.

7.            Governing Law. This Subordinated Revolving Note shall be interpreted and the rights and liabilities of the parties hereto determined in accordance with the laws and decisions of the State of New York. Wherever possible each provision of this Subordinated Revolving Note shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Subordinated Revolving Note shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Subordinated Revolving Note.

8.            Waivers. All parties hereto, whether as makers, endorsers, or otherwise, severally waive presentment for payment, demand, protest and notice of dishonor. The Lender additionally expressly waives all notice of the acceptance by any Senior Claimant of the subordination and other provisions of this Subordinated Revolving Note and expressly waives reliance by any Senior Claimant upon the subordination and other provisions herein provided.

9.            Assignment. This Subordinated Revolving Note may not be assigned, pledged or otherwise transferred to any party without the prior written consent of the Agent, and any such attempted transfer shall be void.

Page 3


In witness whereof, the Borrower has executed this Subordinated Revolving Note on the date first written above.

NMC Funding Corporation

By:

  James V. Luther, President

Page 4


EXHIBIT F

To

THIRD AMENDED AND RESTATED

RECEIVABLES PURCHASE AGREEMENT

LIST OF ACTIONS AND SUITS

SECTIONS 3.1(g) and 3.1(k)(iv)

3.1(g)(i)               Seller: See below under Legal and Regulatory Matters

3.1(g)(ii)              Affiliates:             The “Legal and Regulatory Matters” section of the most recent annual report on Form 20-F or report on Form 6-K for the quarter, as applicable, and such other Form 6-Ks referencing therein any actions, suits or proceedings, each as filed by Fresenius Medical Care AG & Co. KGaA (“FME KGaA” or the “Company”) with the U.S. Securities and Exchange Commission (“SEC”) under the Securities Exchange Act of 1934 is hereby incorporated by reference as if fully set forth herein.

Such filings can be found on the SEC website at the following link: https://www.sec.gov/cgi-bin/browse-edgar?action=getcompany&CIK=0001333141&owner=exclude&count=40&hidefilings=0

The following are excerpts from the report on Form 6-K of FME KGaA filed with the Securities and Exchange Commission on July 30, 2021 for the period ending June 30, 2021 (in thousands, except share and per share data):

Legal and Regulatory Matters

The Company is routinely involved in claims, lawsuits, regulatory and tax audits, investigations and other legal matters arising, for the most part, in the ordinary course of its business of providing health care services and products. Legal matters that the Company currently deems to be material or noteworthy are described below. The Company records its litigation reserves for certain legal proceedings and regulatory matters to the extent that the Company determines an unfavorable outcome is probable and the amount of loss can be reasonably estimated. For the other matters described below, the Company believes that the loss probability is remote and/or the loss or range of possible losses cannot be reasonably estimated at this time. The outcome of litigation and other legal matters is always difficult to predict accurately and outcomes that are not consistent with the Company’s view of the merits can occur. The Company believes that it has valid defenses to the legal matters pending against it and is defending itself vigorously. Nevertheless, it is possible that the resolution of one or more of the legal matters currently pending or threatened could have a material adverse effect on its business, results of operations and financial condition.

Beginning in 2012, the Company received certain communications alleging conduct in countries outside the United States that might violate the Foreign Corrupt Practices Act or other anti-bribery laws. The Company conducted investigations with the assistance of outside counsel and, in a continuing dialogue, advised the Securities and Exchange Commission (“SEC”) and the United States Department of Justice (“DOJ”) about these investigations. The DOJ and the SEC also conducted their own investigations, in which the Company cooperated. In the course of this dialogue, the Company identified and reported to the DOJ and the SEC, and took remedial actions with respect to, conduct that resulted in the DOJ and the SEC seeking monetary penalties including disgorgement of profits and other remedies. This conduct revolved principally around the Company's products business in countries outside the United States.

F-1


On March 29, 2019, the Company entered into a non-prosecution agreement (“NPA”) with the DOJ and a separate agreement with the SEC intended to resolve fully and finally the U.S. government allegations against the Company arising from the investigations. Both agreements included terms starting August 2, 2019. The DOJ NPA is scheduled to terminate on August 2, 2022 and the dismissal of the SEC Order is scheduled to occur on November 30, 2022. The Company paid a combined total in penalties and disgorgement of approximately $231,715 (€205,854) to the DOJ and the SEC in connection with these agreements. The entire amount paid to the DOJ and the SEC was reserved for in charges that the Company recorded in 2017 and 2018 and announced in 2018. As part of the resolution, the Company agreed to certain self-reporting obligations and to retain an independent compliance monitor. Due to COVID-19 pandemic restrictions, the monitorship program faced certain delays, but the Company is working to have all its obligations under the resolution with the DOJ and SEC completed in 2022.

In 2015, the Company self-reported to the German prosecutor conduct with a potential nexus to Germany and continues to cooperate with government authorities in Germany in their review of the conduct that prompted the Company's and United States government investigations.

Since 2012, the Company has made and continues to make further significant investments in its compliance and financial controls and in its compliance, legal and financial organizations. The Company's remedial actions included separation from those employees responsible for the above-mentioned conduct. The Company is dealing with post-FCPA review matters on various levels. The Company continues to be fully committed to compliance with the FCPA and other applicable anti-bribery laws.

On October 30, 2020, Mexico’s primary social security and health care agency filed a civil complaint in the United States District Court for the District of Massachusetts (Boston) asserting claims for common law fraud against the Company and FMCH. 2020 Civ. 11927-IT (E. D. Mass.). The allegations of the complaint rely on the Company’s resolution under the FCPA. After both FMCH and the Company moved to dismiss the complaint, the plaintiff moved on June 23, 2021 to dismiss the complaint voluntarily without prejudice. The court granted plaintiff’s motion the same day.

FMCH's insurers agreed to the settlement in 2017 of personal injury litigation related to FMCH's Granuflo® and Naturalyte® acid concentrate products and funded $220,000 (€179,284) of the settlement fund under a reciprocal reservation of rights. FMCH accrued a net expense of $60,000 (€48,896) in connection with the settlement, including legal fees and other anticipated costs. Following the settlement, FMCH's insurers in the AIG group initiated litigation against FMCH seeking to be indemnified by FMCH for their $220,000 (€179,284) outlay and FMCH initiated litigation against the AIG group to recover defense and indemnification costs FMCH had borne. National Union Fire Insurance v. Fresenius Medical Care, 2016 Index No. 653108 (Supreme Court of New York for New York County).

Discovery in the litigation is complete. The AIG group abandoned certain of its coverage claims and submitted expert reports on damages asserting that, if AIG prevails on all its remaining claims, it should recover $60,000 (€48,896). FMCH contests all of AIG’s claims and submitted expert reports supporting rights to recover $108,000 (€88,012) from AIG, in addition to the $220,000 (€179,284) already funded. A trial date has not been set in the matter.

In August 2014, FMCH received a subpoena from the United States Attorney’s Office (“USAO”) for the District of Maryland inquiring into FMCH's contractual arrangements with hospitals and physicians involving contracts relating to the management of in-patient acute dialysis services. On August 27, 2020, after the USAO declined to pursue the matter by intervening, the United States District Court for Maryland unsealed a 2014 relator’s qui tam complaint that gave rise to the investigation. United States ex rel. Martin Flanagan v. Fresenius Medical Care Holdings, Inc., 2014 Civ. 00665 (D. Maryland). The relator has served the complaint and litigation is proceeding. In response to FMCH’s motion to dismiss the unsealed

F-2


complaint, the relator filed an amended complaint on February 5, 2021 making broad allegations about financial relationships between FMCH and nephrologists.

In July 2015, the Attorney General for Hawaii issued a civil complaint under the Hawaii False Claims Act alleging a conspiracy pursuant to which certain Liberty Dialysis subsidiaries of FMCH overbilled Hawaii Medicaid for Liberty's Epogen® administrations to Hawaii Medicaid patients during the period from 2006 through 2010, prior to the time of FMCH's acquisition of Liberty. Hawaii v. Liberty Dialysis—Hawaii, LLC et al., Case No. 15-1-1357-07 (Hawaii 1st Circuit). The State alleges that Liberty acted unlawfully by relying on incorrect and unauthorized billing guidance provided to Liberty by Xerox State Healthcare LLC, which acted as Hawaii's contracted administrator for its Medicaid program reimbursement operations during the relevant period. With discovery concluded, the State has specified that its demands for relief relate to $7,700 (€6,275) in overpayments on approximately twenty thousand “claims” submitted by Liberty. After prevailing on motions by Xerox to preclude it from doing so, FMCH is pursuing third-party claims for contribution and indemnification against Xerox. The State's False Claims Act complaint was filed after Liberty initiated an administrative action challenging the State's recoupment of alleged overpayments from sums currently owed to Liberty. The civil litigation and administrative action are proceeding in parallel. Trial in the civil litigation has been postponed because of COVID-19-related administrative issues and has been rescheduled for January 2022.

On August 31, 2015, FMCH received a subpoena under the False Claims Act from the United States Attorney for the District of Colorado (Denver) inquiring into FMCH’s participation in and management of dialysis facility joint ventures in which physicians are partners. FMCH continues to cooperate in the Denver USAO investigation, which has come to focus on purchases and sales of minority interests in ongoing outpatient facilities between FMCH and physician groups.

On November 25, 2015, FMCH received a subpoena under the False Claims Act from the United States Attorney for the Eastern District of New York (Brooklyn) also inquiring into FMCH’s involvement in certain dialysis facility joint ventures in New York. On September 26, 2018, the Brooklyn USAO declined to intervene on the qui tam complaint filed under seal in 2014 that gave rise to this investigation. CKD Project LLC v. Fresenius Medical Care, 2014 Civ. 06646 (E.D.N.Y. November 12, 2014). The court unsealed the complaint, allowing the relator to proceed on its own. On January 27, 2021, the Magistrate Judge recommended dismissal of the complaint with prejudice and without leave to amend. The relator is appealing the Magistrate Judge’s recommendation.

Beginning October 6, 2015, the United States Attorney for the Eastern District of New York (Brooklyn) has led an investigation, through subpoenas issued under the False Claims Act, of utilization and invoicing by FMCH’s subsidiary Azura Vascular Care for a period beginning after FMCH’s acquisition of American Access Care LLC ("AAC") in October 2011. FMCH is cooperating in the Brooklyn USAO investigation. The Brooklyn USAO has indicated that its investigation is nationwide in scope and is focused on whether certain access procedures performed at Azura facilities were medically unnecessary and whether certain physician assistants employed by Azura exceeded their permissible scope of practice. Allegations against AAC arising in districts in Connecticut, Florida and Rhode Island relating to utilization and invoicing were settled in 2015.

On November 18, 2016, FMCH received a subpoena under the False Claims Act from the United States Attorney for the Eastern District of New York (Brooklyn) seeking documents and information relating to the operations of Shiel Medical Laboratory, Inc. (“Shiel”), which FMCH acquired in October 2013. In the course of cooperating in the investigation and preparing to respond to the subpoena, FMCH identified falsifications and misrepresentations in documents submitted by a Shiel salesperson that relate to the integrity of certain invoices submitted by Shiel for laboratory testing for patients in long term care facilities. On February 21, 2017, FMCH terminated the employee and notified the United States Attorney of the termination and its circumstances. The terminated employee's conduct is expected to result in demands for

F-3


FMCH to refund overpayments and to pay related penalties under applicable laws, but the monetary value of such payment demands cannot yet be reasonably estimated. FMCH contends that, under the asset sale provisions of its 2013 Shiel acquisition, it is not responsible for misconduct by the terminated employee or other Shiel employees prior to the date of the acquisition. The Brooklyn USAO continues to investigate a range of issues involving Shiel, including allegations of improper compensation (kickbacks) to physicians, and has disclosed that multiple sealed qui tam complaints underlie the investigation.

On December 12, 2017, FMCH sold to Quest Diagnostics certain Shiel operations that are the subject of this Brooklyn subpoena, including the misconduct reported to the United States Attorney. Under the Quest Diagnostics sale agreement, FMCH retains responsibility for responding to the Brooklyn investigation and for liabilities arising from conduct occurring after its 2013 acquisition of Shiel and prior to its sale of Shiel to Quest Diagnostics. FMCH is cooperating in the investigation.

In May 2017, the United States Attorney for the Middle District of Tennessee (Nashville) issued identical subpoenas to FMCH and two subsidiaries under the False Claims Act concerning FMCH's retail pharmaceutical business. The subpoenas, and the subsequent investigation in which FMCH cooperated, were apparently predicated on but were not limited to a complaint filed on November 6, 2015 by two former employees. United States ex rel. Keasler et al. v. Fresenius Medical Care Rx, LLC, 03:15-Civ-01183 (M.D. Tenn. 2015). On July 9, 2021, the United States declined to intervene in the matter. On July 13, 2021, the Court allowed the relators’ complaint to be unsealed. The relators may elect to serve the complaint.

On March 12, 2018, Vifor Fresenius Medical Care Renal Pharma Ltd. and Vifor Fresenius Medical Care Renal Pharma France S.A.S. (collectively, “VFMCRP”) (see note 3), filed a complaint for patent infringement against Lupin Atlantis Holdings SA and Lupin Pharmaceuticals Inc. (collectively, “Lupin”), and Teva Pharmaceuticals USA, Inc. (“Teva”) in the U.S. District Court for the District of Delaware (Case 1:18-cv-00390-MN, “first complaint”). The patent infringement action is in response to Lupin and Teva’s filings of Abbreviated New Drug Applications ("ANDA") with the U.S. Food and Drug Administration ("FDA") for generic versions of Velphoro®. Velphoro® is protected by patents listed in the FDA’s Approved Drug Products with Therapeutic Equivalence Evaluations, also known as the Orange Book. The complaint was filed within the 45-day period provided for under the Hatch-Waxman legislation, and triggered a stay of FDA approval of the ANDAs for 30 months (specifically, up to July 29, 2020 for Lupin’s ANDA; and August 6, 2020 for Teva’s ANDA. In response to another ANDA being filed for a generic Velphoro®, VFMCRP filed a complaint for patent infringement against Annora Pharma Private Ltd., and Hetero Labs Ltd. (collectively, “Annora”), in the U.S. District Court for the District of Delaware on December 17, 2018. The case was settled among the parties, thus terminating the court action on August 4, 2020. On May 26, 2020, VFMCRP filed a further complaint for patent infringement against Lupin in the U.S. District Court for the District of Delaware (Case No. 1:20-cv-00697-MN) in response to Lupin’s ANDA for a generic version of Velphoro® and on the basis of a newly listed patent in the Orange Book. On July 6, 2020, VFMCRP filed an additional complaint for patent infringement against Lupin and Teva in the U.S. District Court for the District of Delaware (Case No. 1:20-cv-00911-MN, “second complaint”) in response to the companies’ ANDA for generic versions of Velphoro® and on the basis of two newly listed patents in the Orange Book. All cases involving Lupin as defendant were settled among the parties, thus terminating the corresponding court actions on December 18, 2020. In relation to the remaining pending cases and the defendant Teva, trial took place for the first complaint between January 19 and 22, 2021. Another patent newly listed in the Orange Book was added to the second complaint on June 23, 2021. Trial is scheduled for the second complaint for June 2022.

On December 17, 2018, FMCH was served with a subpoena under the False Claims Act from the United States Attorney for the District of Colorado (Denver) as part of an investigation of allegations against DaVita, Inc. involving transactions between FMCH and DaVita. The subject transactions include sales and purchases of dialysis facilities, dialysis-related products and pharmaceuticals, including dialysis machines and dialyzers, and contracts for certain administrative services. FMCH is cooperating in the investigation.

F-4


On June 28, 2019, certain FMCH subsidiaries filed a complaint against the United States seeking to recover monies owed to them by the United States Department of Defense under the Tricare program, and to preclude Tricare from recouping monies previously paid. Bio-Medical Applications of Georgia, Inc., et al. v. United States, CA 19-947, United States Court of Federal Claims. Tricare provides reimbursement for dialysis treatments and other medical care provided to members of the military services, their dependents and retirees. The litigation challenges unpublished administrative actions by Tricare administrators reducing the rate of compensation paid for dialysis treatments provided to Tricare beneficiaries based on a recasting or “crosswalking” of codes used and followed in invoicing without objection for many years. Tricare administrators have acknowledged the unpublished administrative action and declined to change or abandon it. On July 8, 2020, the U.S. government filed its answer (and confirmed their position). The parties will proceed to discovery. The court has not yet set a date for trial in this matter. FMCH has imposed a constraint on revenue otherwise recognized from the Tricare program that it believes, in consideration of facts currently known, sufficient to account for the risk of this litigation.

On August 21, 2020, FMCH was served with a subpoena from the United States Attorney for the District of Massachusetts requesting information and documents related to urgent care centers that FMCH owned, operated, or controlled as part of its ChoiceOne and Medspring urgent care operations prior to its divestiture of and exit from that line of business in 2018. The subpoena appears to be related to an ongoing investigation of alleged upcoding in the urgent care industry, which has resulted in certain published settlements under the federal False Claims Act. FMCH is cooperating in the investigation.

On March 25, 2021, FMCH received a grand jury subpoena issued from the United States District Court for the Northern District of Texas (Dallas). The subpoena seeks documents comprising communications between employees of FMCH and DaVita and partially overlaps in content the 2018 Denver subpoena. The Dallas subpoena is part of a separate investigation by the Anti-Trust Division of the Department of Justice into possible employee “no poaching” and similar agreements to refrain from competition and is related to the indictment in United States v. Surgical Care Affiliates, 3:2021-Cr-0011 (N.D. Tex.) and United States v. DaVita, Inc. et al., 1:21-cr00229 (D.Col.). The unnamed co-conspirators described in the Surgical Care Affiliates and DaVita indictments do not include FMCH, the Company, or any of their employees. FMCH is cooperating in the investigation.

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, insurance plans and suppliers, 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 marketing and distribution of such products, the operation of manufacturing facilities, laboratories, dialysis clinics and other health care facilities, and environmental and occupational health and safety. With respect to its development, manufacture, marketing and distribution of medical products, if such compliance is not maintained, the Company could be subject to significant adverse regulatory actions by the FDA and comparable regulatory authorities outside the U.S. These regulatory actions could include warning letters or other enforcement notices from the FDA, and/or comparable foreign regulatory authority which may require the Company to expend significant time and resources in order to implement appropriate corrective actions. If the Company does not address matters raised in warning letters or other enforcement notices to the satisfaction of the FDA and/or comparable regulatory authorities outside the U.S., these regulatory authorities could take additional actions, including product recalls, injunctions against the distribution of products or operation of manufacturing plants, civil penalties, seizures of the Company’s products and/or criminal prosecution. FMCH completed remediation efforts with respect to one pending FDA warning letter and is awaiting confirmation as to whether the letter is now closed. The Company must also comply with the laws of the United States, including the federal

F-5


Anti-Kickback Statute, the federal False Claims Act, the federal Stark Law, the federal Civil Monetary Penalties Law and the federal Foreign Corrupt Practices Act as well as 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 whistleblower actions. By virtue of this regulatory environment, the Company’s business activities and practices are subject to extensive review by regulatory authorities and private parties, and continuing audits, 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 whistleblower actions, which are initially filed under court seal.

The Company operates many facilities and handles the personal data ("PD") of its patients and beneficiaries throughout the United States and other parts of the world and engages with other business associates to help it carry out its health care activities. 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 and its business associates. On occasion, the Company or its business associates may experience a breach under the Health Insurance Portability and Accountability Act Privacy Rule and Security Rules, the EU’s General Data Protection Regulation and or other similar laws ("Data Protection Laws") when there has been impermissible use, access, or disclosure of unsecured PD or when the Company or its business associates neglect to implement the required administrative, technical and physical safeguards of its electronic systems and devices, or a data breach that results in impermissible use, access or disclosure of personal identifying information of its employees, patients and beneficiaries. On those occasions, the Company must comply with applicable breach notification requirements.

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 its employees. On occasion, the Company may identify instances where employees or other agents deliberately, recklessly or inadvertently contravene the Company’s policies or violate applicable law. The actions of such persons may subject the Company and its subsidiaries to liability under the Anti-Kickback Statute, the Stark Law, the False Claims Act, Data Protection Laws, the Health Information Technology for Economic and Clinical Health Act and the Foreign Corrupt Practices Act, among other laws and comparable state laws or laws of other countries.

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.

F-6


In Germany, the tax audits for the years 2006 through 2009 have been substantially completed. The German tax authorities have indicated a re-qualification of dividends received in connection with intercompany mandatorily redeemable preferred shares into fully taxable interest payments for these and subsequent years until 2013. The Company has defended its position and will avail itself of appropriate remedies. The Company is also subject to ongoing and future tax audits in the U.S., Germany and other jurisdictions in the ordinary course of business. Tax authorities routinely pursue adjustments to the Company’s tax returns and disallowances of claimed tax deductions. When appropriate, the Company defends these adjustments and disallowances and asserts its own claims. A successful tax related claim against the Company or any of its subsidiaries could have a material adverse effect upon its business, financial condition and results of operations.

Other than those individual contingent liabilities mentioned above, the current estimated amount of the Company's other known individual contingent liabilities is immaterial.

  

3.1(k)(iv)

Tradenames:        Renal Care Group

Fresenius Renal Technologies

National Nephrology Associates

Fresenius Renal Therapies

TruBlu Logistics (FUSA Mfg)

Fresenius Kidney Care

Fresenius Renal Pharmaceuticals

Fresenius USA

Merger:               On September 25, 2018, American Access Care of Bucks County, LLC, American Access Care of Pittsburgh, LLC, Gynesis Healthcare of Pennsylvania, Inc. and PD Solutions of Pennsylvania, merged into Physicians Dialysis Company, Inc.

On September 25, 2018, Mercy Dialysis Center, Inc. merged into Bio-Medical Applications of Wisconsin, Inc.

F-7


EXHIBIT G

to

THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT

LOCATION OF RECORDS

[Attached]

G-1


EXHIBIT G

to

THIRD AMENDED AND RESTATED

RECEIVABLES PURCHASE AGREEMENT

LOCATION OF RECORDS

Number

Name

TAX ID

Billing Group Name1

Addr1

City1

ST1

Zip1

1

Apheresis Care Group, Inc.

841677784

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

2

BioMedical Applications Management Company, Inc.

221946461

Fresenius Medical Care

920 Winter St

Waltham

MA

02451

3

BioMedical Applications of Alabama, Inc.

042625090

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

4

BioMedical Applications of Amarillo, Inc.

042649134

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

5

BioMedical Applications of Anacostia, Inc.

042716481

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

6

BioMedical Applications of Aguadilla, Inc.

042968314

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

7

BioMedical Applications of Arecibo, Inc.

042740118

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

8

BioMedical Applications of Arkansas, Inc.

042505389

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

9

BioMedical Applications of Bayamon, Inc.

042832066

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

10

BioMedical Applications of Blue Springs, Inc.

042975267

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

11

BioMedical Applications of Caguas, Inc.

042739513

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

12

BioMedical Applications of California, Inc.

043129981

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

13

BioMedical Applications of Camarillo, Inc.

042957737

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

14

BioMedical Applications of Carolina, Inc.

042696241

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

15

BioMedical Applications of Clinton, Inc.

043112273

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

16

BioMedical Applications of Columbia Heights, Inc.

042583382

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

17

BioMedical Applications of Connecticut, Inc.

042990950

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

18

BioMedical Applications of Delaware, Inc.

043183720

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

19

BioMedical Applications of Dover, Inc.

042944525

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

20

BioMedical Applications of Eureka, Inc.

042652260

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

21

BioMedical Applications of Fayetteville, Inc.

042944524

Fresenius Medical Care

920 Winter St

Waltham

MA

02451

22

BioMedical Applications of Florida, Inc.

112226338

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

23

BioMedical Applications of Fremont, Inc.

043033477

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

24

BioMedical Applications of Fresno, Inc.

043017372

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

25

BioMedical Applications of Georgia, Inc.

042832065

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

26

BioMedical Applications of Guayama, Inc.

042963519

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

27

BioMedical Applications of Humacao, Inc.

043039570

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

28

BioMedical Applications of Illinois, Inc.

042560009

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

29

BioMedical Applications of Indiana, Inc.

042969825

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

30

BioMedical Applications of Kansas, Inc.

043291316

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

31

BioMedical Applications of Kentucky, Inc.

042546968

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

32

BioMedical Applications of Los Gatos, Inc.

043033478

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

33

BioMedical Applications of Louisiana, LLC

042508242

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

34

BioMedical Applications of Maine, Inc.

042508244

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

35

BioMedical Applications of Manchester, Inc.

042969816

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

36

BioMedical Applications of Maryland, Inc.

042553140

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

37

BioMedical Applications of Massachusetts, Inc.

043088660

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

38

BioMedical Applications of Mayaguez, Inc.

042594769

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

39

BioMedical Applications of Michigan, Inc.

042516906

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

G-1


EXHIBIT G

to

THIRD AMENDED AND RESTATED

RECEIVABLES PURCHASE AGREEMENT

LOCATION OF RECORDS

Number

Name

TAX ID

Billing Group Name1

Addr1

City1

ST1

Zip1

40

BioMedical Applications of Minnesota, Inc.

043376339

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

41

BioMedical Applications of Mississippi, Inc.

043108559

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

42

BioMedical Applications of Missouri, Inc.

042975268

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

43

BioMedical Applications of New Hampshire, Inc.

042944527

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

44

BioMedical Applications of New Jersey, Inc.

043106961

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

45

BioMedical Applications of New Mexico, Inc.

042520837

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

46

BioMedical Applications of North Carolina, Inc.

043085674

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

47

BioMedical Applications of Northeast D.C., Inc.

042832070

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

48

BioMedical Applications of Ohio, Inc.

043110360

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

49

BioMedical Applications of Oklahoma, Inc.

043017363

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

50

BioMedical Applications of Pennsylvania, Inc.

042466383

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

51

BioMedical Applications of Ponce, Inc.

042521638

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

52

BioMedical Applications of Puerto Rico, Inc.

043167416

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

53

BioMedical Applications of Rhode Island, Inc.

042489760

Fresenius Medical Care

920 Winter St

Waltham

MA

02451

54

BioMedical Applications of Rio Piedras, Inc.

042968308

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

55

BioMedical Applications of San German, Inc.

042740117

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

56

BioMedical Applications of San Juan, Inc.

042520840

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

57

BioMedical Applications of South Carolina, Inc.

042944532

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

58

BioMedical Applications of Southeast Washington, Inc.

042633086

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

59

BioMedical Applications of Tennessee, Inc.

043074770

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

60

BioMedical Applications of Texas, Inc.

112226275

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

61

BioMedical Applications of the District of Columbia, Inc.

042558118

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

62

BioMedical Applications of Virginia, Inc.

043054876

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

63

BioMedical Applications of West Virginia, Inc.

042894956

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

64

BioMedical Applications of Wisconsin, Inc.

042539147

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

65

BioMedical Applications of Wyoming, LLC

043809723

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

66

Brevard County Dialysis, LLC

200250202

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

67

Clayton County Dialysis, LLC

582350026

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

68

Clermont Dialysis Center, LLC

593733739

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

69

College Park Dialysis, LLC

562293442

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

70

Columbus Area Renal Alliance, LLC

311799562

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

71

Conejo Valley Dialysis, Inc.

953249390

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

72

Dialysis America Georgia, LLC

043441506

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

73

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

223547454

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

74

Dialysis Centers of America Illinois, Inc.

371341578

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

75

Dialysis Management Corporation

742596786

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

76

Dialysis Services of Atlanta, Inc.

581819764

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

77

Dialysis Services of Cincinnati, Inc.

311374389

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

78

Dialysis Specialists of Marietta, Ltd.

311484219

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

G-2


EXHIBIT G

to

THIRD AMENDED AND RESTATED

RECEIVABLES PURCHASE AGREEMENT

LOCATION OF RECORDS

Number

Name

TAX ID

Billing Group Name1

Addr1

City1

ST1

Zip1

79

Dialysis Specialists of Topeka, Inc.

481178898

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

80

Douglas County Dialysis, LLC

593663253

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

81

Du Page Dialysis, Ltd.

363029873

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

82

Everest Healthcare Holdings, Inc.

043540082

Fresenius Medical Care

920 Winter St

Waltham

MA

02451

83

Everest Healthcare Indiana, Inc.

363575844

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

84

Everest Healthcare Ohio, Inc.

311418495

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

85

Everest Healthcare Rhode Island, Inc.

364403091

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

86

Everest Healthcare Texas, L.P.

364321507

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

87

FMS Delaware Dialysis, LLC

261536796

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

88

FMS Philadelphia Dialysis, LLC

311800532

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

89

Fondren Dialysis Clinic, Inc.

760149309

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

90

Fort Scott Regional Dialysis Center, Inc.

431474377

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

91

Four State Regional Dialysis Center, Inc.

431331335

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

93

Fresenius Kidney Care Guam, LLC

842155656

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

93

Fresenius Kidney Care Pittsburgh, LLC

262521636

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

94

Fresenius Management Services, Inc.

042733764

Fresenius Medical Care

920 Winter St

Waltham

MA

02451

95

Fresenius Medical Care South Texas Kidney, LLC

260857967

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

96

Fresenius Medical Care Dialysis Services Oregon, LLC

931175031

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

97

Fresenius Medical Care Dialysis Services Colorado LLC

043447327

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

98

Fresenius Medical Care Harston Hall, LLC

264216027

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

99

Fresenius Medical Care Holdings, Inc.

133461988

Fresenius Medical Care

920 Winter St

Waltham

MA

02451

100

Fresenius Medical Care of Illinois, LLC

562296990

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

101

Fresenius Medical Care of Montana, LLC

274604304

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

102

Fresenius Medical Care Ventures, LLC

223948765

Fresenius Medical Care

920 Winter St

Waltham

MA

02451

103

Fresenius Medical CareOSUIM Kidney Centers, LLC

432117045

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

104

Fresenius USA Manufacturing, Inc.

043475979

Fresenius Medical Care

920 Winter St

Waltham

MA

02451

105

Fresenius USA Marketing, Inc.

043477762

Fresenius Medical Care

920 Winter St

Waltham

MA

02451

106

Fresenius USA, Inc.

042550576

Fresenius Medical Care

920 Winter St

Waltham

MA

02451

107

Gulf Region Mobile Dialysis, Inc.

042938292

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

108

HaemoStat, Inc.

953529889

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

109

Hauppauge Dialysis Center, LLC

473940345

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

110

Henry Dialysis Center, LLC

582415318

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

111

Holton Dialysis Clinic, LLC

582449454

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

112

Home Dialysis of Muhlenberg County, Inc.

611262466

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

113

Homestead Artificial Kidney Center, Inc.

592263441

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

114

Inland Northwest Renal Care Group, LLC

912069412

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

115

Jefferson County Dialysis, Inc.

710728066

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

116

KDCO, Inc.

431796126

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

117

Kentucky Renal Care Group, LLC

364494425

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

G-3


EXHIBIT G

to

THIRD AMENDED AND RESTATED

RECEIVABLES PURCHASE AGREEMENT

LOCATION OF RECORDS

Number

Name

TAX ID

Billing Group Name1

Addr1

City1

ST1

Zip1

118

Little Rock Dialysis, Inc.

710672705

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

119

Maumee Dialysis Services, LLC

352137387

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

120

Metro Dialysis Center Normandy, Inc.

431585199

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

121

Metro Dialysis Center North, Inc.

431227361

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

122

National Medical Care, Inc.

042835488

Fresenius Medical Care

920 Winter St

Waltham

MA

02451

123

National Nephrology Associates of Texas, L.P.

742928010

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

124

New York Dialysis Services, Inc.

043267217

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

125

NNA of Alabama, Inc.

631223468

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

126

NNA of East Orange, L.L.C.

223749910

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

127

NNA of Georgia, Inc.

621765493

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

128

NNA of Harrison, L.L.C.

223730892

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

129

NNA of Louisiana, LLC

621848891

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

130

NNA of Oklahoma, Inc.

621842289

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

131

NNA of Oklahoma, L.L.C.

731574780

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

132

NNA of Rhode Island, Inc.

050513853

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

133

NNA of Toledo, Inc.

341938916

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

134

NNASaint Barnabas, L.L.C.

141851729

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

135

NNASaint BarnabasLivingston, L.L.C.

743070647

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

136

Northern New Jersey Dialysis, L.L.C.

364291598

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

137

NRAAda, Oklahoma, LLC

203918366

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

138

NRAAugusta, Georgia, LLC

201773433

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

139

NRABamberg, South Carolina, LLC

721554958

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

140

NRACrossville, Tennessee, LLC

200211899

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

141

NRAFarmington, Missouri, LLC

204545164

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

142

NRAGeorgetown, Kentucky, LLC

205424005

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

143

NRAHogansville, Georgia, LLC

203169182

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

144

NRAHolly Hill, South Carolina, LLC

721555507

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

145

NRAHollywood, South Carolina, LLC

202902860

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

146

NRAInpatient Dialysis, LLC

830338286

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

147

NRALaGrange, Georgia, LLC

260185821

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

148

NRAMt. Pleasant, South Carolina, LLC

200838706

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

149

NRANew Castle, Indiana, LLC

205987299

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

150

NRANewnan Acquisition, LLC

680523317

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

151

NRAOrangeburg, South Carolina, LLC

432005251

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

152

NRAPalmetto, Georgia, LLC

260185501

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

153

NRAPrinceton, Kentucky, LLC

450468127

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

154

NRARoanoke, Alabama, LLC

330997565

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

155

NRASouth City, Missouri, LLC

202902550

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

156

NRASt. Louis (Home Therapy Center), Missouri, LLC

205424146

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

G-4


EXHIBIT G

to

THIRD AMENDED AND RESTATED

RECEIVABLES PURCHASE AGREEMENT

LOCATION OF RECORDS

Number

Name

TAX ID

Billing Group Name1

Addr1

City1

ST1

Zip1

157

NRASt. Louis, Missouri, LLC

202902075

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

158

NRATalladega, Alabama, LLC

200168987

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

159

NRAValdosta (North), Georgia, LLC

260185895

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

160

NRAValdosta, Georgia, LLC

205056226

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

161

NRAWashington County, Missouri, LLC

204718634

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

162

NRAWinchester, Indiana, LLC

205987315

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

163

QualiCenters Albany, Ltd.

841177951

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

164

QualiCenters Bend, LLC

841306505

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

165

QualiCenters Coos Bay, Ltd.

931116623

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

166

QualiCenters EugeneSpringfield Ltd.

841200211

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

167

QualiCenters Inland Northwest LLC

841300520

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

168

QualiCenters Pueblo LLC

841278890

TYLER BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

169

QualiCenters Salem, LLC

841278891

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

170

RAI Care Centers of Alabama, LLC

272780983

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

171

RAI Care Centers of Florida I, LLC

203275837

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

172

RAI Care Centers of Florida II, LLC

203276388

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

173

RAI Care Centers of Georgia I, LLC

264422073

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

174

RAI Care Centers of Illinois I, LLC

203424989

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

175

RAI Care Centers of Illinois II, LLC

203276495

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

176

RAI Care Centers of Maryland I, LLC

203275966

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

177

RAI Care Centers of Michigan I, LLC

203275900

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

178

RAI Care Centers of Michigan II, LLC

203276543

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

179

RAI Care Centers of Nebraska II, LLC

203276452

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

180

RAI Care Centers of North Carolina II, LLC

203276272

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

181

RAI Care Centers of Northern California I, LLC

203273722

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

182

RAI Care Centers of Northern California II, LLC

203276168

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

183

RAI Care Centers of Oakland II, LLC

260703939

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

184

RAI Care Centers of South Carolina I, LLC

203275735

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

185

RAI Care Centers of Southern California I, LLC

203275222

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

186

RAI Care Centers of Southern California II, LLC

203276225

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

187

RAI Care Centers of Virginia I, LLC

203276076

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

188

RCG Bloomington, LLC

352161251

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

189

RCG East Texas, LLP

432012785

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

190

RCG Indiana, L.L.C.

621674489

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

191

RCG Irving, LLP

680564355

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

192

RCG Martin, LLC

621727016

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

193

RCG Memphis East, LLC

621857812

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

194

RCG Mississippi, Inc.

621628022

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

195

RCG Pensacola, LLC

900123132

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

G-5


EXHIBIT G

to

THIRD AMENDED AND RESTATED

RECEIVABLES PURCHASE AGREEMENT

LOCATION OF RECORDS

Number

Name

TAX ID

Billing Group Name1

Addr1

City1

ST1

Zip1

196

RCG Robstown, LLP

460514571

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

197

RCG University Division, Inc.

621555316

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

230

Reliant Renal Care Lapeer Home Choice, LLC

371739038

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

231

Renal Care Group, Inc.

621622383

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

200

Renal Care Group Alaska, Inc.

920166049

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

201

Renal Care Group East, Inc.

231906900

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

202

Renal Care Group Maplewood, LLC

010854887

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

203

Renal Care Group Northwest, Inc.

931236337

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

204

Renal Care Group of the Midwest, Inc.

480828924

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

205

Renal Care Group of the Ozarks, LLC

050592312

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

206

Renal Care Group of the Rockies, LLC

841596186

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

207

Renal Care Group of the South, Inc.

680594301

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

208

Renal Care Group of the Southeast, Inc.

592851389

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

209

Renal Care Group South New Mexico, LLC

742979806

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

210

Renal Care Group Southwest Michigan, LLC

364525442

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

211

Renal Care Group Southwest, L.P.

860960418

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

212

Renal Care Group Terre Haute, LLC

810614774

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

213

Renal Care Group Texas, Inc.

751739434

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

214

Renal Care Group Toledo, LLC

161748061

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

215

Renal Care GroupHarlingen, L.P.

742967993

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

222

RenalPartners, Inc.

721365907

Intentionally Blank

217

Renex Dialysis Clinic of Bloomfield, Inc.

223572775

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

218

Renex Dialysis Clinic of Bridgeton, Inc.

431717348

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

219

Renex Dialysis Clinic of Creve Coeur, Inc.

431690517

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

220

Renex Dialysis Clinic of Maplewood, Inc.

431804718

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

221

Renex Dialysis Clinic of Orange, Inc.

223461798

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

222

Renex Dialysis Clinic of Pittsburgh, Inc.

251732278

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

223

Renex Dialysis Clinic of South Georgia, Inc.

582383123

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

224

Renex Dialysis Clinic of St. Louis, Inc.

431856441

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

225

Renex Dialysis Clinic of University City, Inc.

431655681

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

226

Renex Dialysis Facilities, Inc.

640798295

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

227

Saint Louis Renal Care, LLC

621648323

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

228

San Diego Dialysis Services, Inc.

042487762

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

229

Santa Barbara Community Dialysis Center, Inc.

952814241

ARIZONA BILLING GROUP

1750 S MESA DR

MESA

AZ

85210

230

Smyrna Dialysis Center, LLC

113696702

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

231

SSKG, Inc.

364085833

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

232

St. Louis Regional Dialysis Center, Inc.

621084258

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

233

STAT Dialysis Corporation

742775421

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

234

Stone Mountain Dialysis Center, LLC

582638661

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

G-6


EXHIBIT G

to

THIRD AMENDED AND RESTATED

RECEIVABLES PURCHASE AGREEMENT

LOCATION OF RECORDS

Number

Name

TAX ID

Billing Group Name1

Addr1

City1

ST1

Zip1

235

Stuttgart Dialysis, LLC

710779483

LAKESIDE BILLING GROUP

3850 N CAUSEWAY BLVD

METAIRIE

LA

70002

236

Tappahannock Dialysis Center, Inc.

541355720

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

237

Terrell Dialysis Center, L.L.C.

364247457

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

238

Warrenton Dialysis Facility, Inc.

541136812

PEACHTREE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

239

West End Dialysis Center, Inc.

541341030

ATLANTA ACUTE BILLING GROUP

1940 LODGE RD NW

KENNESAW

GA

30144

240

WSKC Dialysis Services, Inc.

362668594

TYLER BILLING GROUP

1101 E. SE LOOP 323

TYLER

TX

75701

G-7


EXHIBIT H

to

THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT

LIST OF SELLER’S SUBSIDIARIES, DIVISIONS AND TRADENAMES

SECTION 3.1(k)

Subsidiaries and Divisions [Section 3.1(k)(ii)]:

Wholly owned subsidiaries:

Bio-Medical Applications Management Company, Inc.

Bio-Medical Applications of Illinois, Inc.

Fresenius Medical Care Dialysis Services - Oregon, LLC

Fresenius Medical Care Insurance Group, LLC

Fresenius Medical Care of Illinois, LLC

Fresenius Medical Seamless Care, LLC

Fresenius Medical Care Ventures Holding Company, Inc.

Haemo-Stat, Inc.

NMC A, LLC

NMC Funding Corporation

NMC Services, Inc.

QCI Holdings, Inc.

Quality Care Dialysis Center of Vega Baja, Inc.

Renal Research Institute, LLC

Spectra Renal Research, LLC

U.S. Vascular Access Holdings, LLC Elevate365, LLC

New Highway Realty, LLC

Netherland Realty, LLC

Muskegon New Realty, LLC

Houston Coffee Real Estate, LLC

Partially owned subsidiaries (other member is another wholly owned entity):

QualiCenters Eugene-Springfield, Ltd. (49%)

QualiCenters Inland Northwest L.L.C. (30%)

QualiCenters Salem LLC (40%)

Fresenius Seamless Care of Atlanta, LLC (4.8%)

Fresenius Seamless Care of Delaware, LLC (8.2%)

Tradenames [Section 3.1(k)(iii)]:

Seller:                       Fresenius Medical Care North America

H-1


EXHIBIT I

to

THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT

FORM OF TRANSFERRING AFFILIATE LETTER

[Attached]

I-1


EXECUTION VERSION

SECOND AMENDED AND RESTATED TRANSFERRING AFFILIATE LETTER

Dated as of August 11, 2021

NATIONAL MEDICAL CARE, INC.

920 Winter Street

Waltham, MA 02451 Attention: Mark Fawcett

Dear Sirs:

We refer to the Third Amended and Restated Receivables Purchase Agreement dated as of August 11, 2021 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 October 16, 2008 (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 Second 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.     (a) 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 Assets, if any, with respect thereto, which are owed from time to time to such Transferring Affiliate for an amount equal to the Intercompany Purchase Price (as defined below) of such Receivables, which amount the Seller shall pay to such Transferring Affiliate (i) in cash, (ii) by way of a credit to such Transferring Affiliate in the appropriate intercompany account, (iii) by delivery of one or more Letters of Credit procured by the Seller in such form or forms and for the benefit of such beneficiary or beneficiaries as may have been requested by such Transferring Affiliate or (iv) in any combination of the foregoing, in each case by the last Business Day of the month following the month in which such purchase was made (the related “TAL Settlement Date”). Each purchase of a Receivable and the Related Assets with respect thereto shall be deemed to be made on the date such Receivable is created.


The Seller shall settle from time to time each credit to the account of a Transferring Affiliate by way of (i) payments in cash, (ii) credits in amounts equal to cash expended, obligations incurred or the value of services or property provided by or on behalf of the Seller or (iii) delivery of one or more Letters of Credit procured by the Seller as requested by such Transferring Affiliate, 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.

As used herein, the term “Intercompany Purchase Price” shall mean a purchase price as may be agreed from time by each Transferring Affiliate and the Seller and which would provide the Seller with a reasonable return on its purchases hereunder after taking into account (i) the time value of money based upon the anticipated dates of collection of such Receivables and the cost to the Seller of financing its investment in such Receivables during such period and (ii) the risk of nonpayment by the Obligors. Each Transferring Affiliate and the Seller may agree from time to time to change the Intercompany Purchase Price based on changes in the items described in clauses (i) and

(ii) of the previous sentence, provided that any change to the Intercompany Purchase Price shall apply only prospectively and shall not affect the purchase price of Receivables sold prior to the date on which the Transferring Affiliate and the Seller agree to make such change.

In the event the Seller shall have procured one or more Letters of Credit for a Transferring Affiliate as part of the Intercompany Purchase Price for any Receivables, and the aggregate face amount of such Letters of Credit exceeds the aggregate Intercompany Purchase Price payable to such Transferring Affiliate on the related TAL Settlement Date, then an amount equal to such excess shall be debited from the appropriate intercompany account and shall be deemed to be a prepayment for application on a later TAL Settlement Date toward the Intercompany Purchase Price for Receivables subsequently purchased hereunder.

In the event the Seller shall have procured a Letter of Credit for a Transferring Affiliate as part of the Intercompany Purchase Price for any Receivables, and such Letter of Credit (i) expires or is cancelled or otherwise terminated with all or any portion of its face amount undrawn, or (ii) has its face amount decreased (for a reason other than a drawing having been made thereunder), then an amount equal to such undrawn amount or decrease, as the case may be, shall either be paid by the Seller in cash to such Transferring Affiliate on the next TAL Settlement Date or, if the Seller does not then have cash available therefor, shall be deemed to be a credit to such Transferring Affiliate in the appropriate intercompany account.

(b)   If on any day the Purchaser becomes entitled to a Purchase Price Credit pursuant to Section 2.3(a) of the Agreement, the Seller shall become entitled to a credit against the Intercompany Purchase Price in the same amount as such Purchase Price Credit, which will be owed to the Seller by the Transferring Affiliate that originated the Receivable giving rise to the Purchase Price Credit. If any credit to which the Seller becomes so entitled on any date exceeds the aggregate Intercompany Purchase Price of the Receivables sold hereunder by such Transferring Affiliate on such date, then such

2


Transferring Affiliate shall pay the remaining amount of such credit to the Seller in cash on the next succeeding Business Day; provided that, if the Termination Date has not occurred, such Transferring Affiliate shall be allowed to deduct the remaining amount of such credit from any indebtedness owed to it by the Seller with respect to other purchases of Receivables hereunder.

(c)   It is the intention of the parties hereto that each purchase of Receivables under this Transferring Affiliate Letter shall constitute a sale of such Receivables, together with the Related Assets with respect thereto, from the applicable Transferring Affiliate to the Seller, conveying good title thereto free and clear of any Adverse Claims, and that such Receivables and Related Assets not be part of the applicable Transferring Affiliate’s estate in the event of an insolvency. If, notwithstanding the foregoing, the transactions contemplated under this Transferring Affiliate Letter should be deemed a financing and not a sale or such sale shall for any reason be ineffective or unenforceable (any of the foregoing a “Recharacterization”), each Transferring Affiliate and the Seller intend that such Transferring Affiliate shall be deemed to have granted to the Seller a first priority perfected and continuing security interest in all of such Transferring Affiliate’s right, title and interest in, to and under the Receivables now or hereafter arising that are purportedly sold to the Seller pursuant to this Transferring Affiliate Letter, together with the Related Assets with respect thereto, and that this Agreement shall constitute a security agreement under applicable law. In the case of any Recharacterization, each Transferring Affiliate and the Seller represents and warrants that each remittance of Collections by such Transferring Affiliate to the Seller hereunder will have been (i) in payment of a debt incurred by such Transferring Affiliate in the ordinary course of business or financial affairs of the Seller and such Transferring Affiliate and (ii) made in the ordinary course of business or financial affairs of such Transferring Affiliate and the Seller. The security interests deemed granted and granted pursuant to the two preceding sentences shall secure all obligations of the Transferring Affiliates hereunder and under the other Transaction documents (including, without limitation, all indemnification obligations of the Transferring Affiliates under Section 17 of this Transferring Affiliate Letter).

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.

3


(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 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

4


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.

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 Transferring Affiliate 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

5


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.

(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

6


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 (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 writing in the Account Schedule (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. Subject to satisfaction of the conditions set forth in Section 2.15 of the TAA, any Transferring Affiliate may be removed as a party hereto if (i) such Transferring Affiliate, the Seller and the Transferor have delivered to each Administrative Agent and the Agent a duly executed

7


supplement substantially in the form attached to this Transferring Affiliate Letter as Exhibit 1 (a “Removal Supplement”) and (ii) such Removal Supplement shall have been acknowledged in writing by the Agent.

9.            All notices and other communications provided for hereunder shall, unless otherwise stated herein, be in writing (including writing delivered by way of mail, email, telecopier, telegraphic, telex or cable communication) and mailed, emailed, telecopied, telegraphed, telexed, cabled or delivered, as to each party hereto, at its 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, emailed, telecopied, telegraphed, telexed or cabled, be effective when deposited in the mails, emailed, 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 Eighth Amended and Restated Transfer and Administration Agreement dated as of August 11, 2021 (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 The Bank of Nova Scotia, 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

8


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 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. For purposes of the foregoing, the term “Conduit Investor” shall include each party identified as a Conduit Investor for purposes of Section 10.9 of the TAA. The provisions of this Section shall survive the termination of this Agreement.

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.

9


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. Delivery of an executed counterpart via email or other electronic transmission shall be as effective as delivery of an original counterpart.

17.          Indemnities by the Transferring Affiliates. Without limiting any other rights which the Seller or any other Indemnified Party (as defined below) may have hereunder or under applicable law, the Transferring Affiliates hereby jointly and severally agree to indemnify the Seller and any successors and permitted assigns (including, without limitation, the Purchaser, Conduit Investors, the Bank Investors, the Agent, the Administrative Agents, the Collateral Agents, the Liquidity Providers and the Credit Support Providers) 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 any Liquidity Provider, any Credit Support Provider, the Agent, any Administrative Agent, any Collateral Agent or the Purchaser, 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 any Transferring Affiliate or any Parent Group Member (including any Parent Group Member, in its capacity as the Collection Agent) and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise arising out of or as a result of this Transferring Affiliate Letter, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Seller and its assigns of Receivables and Related Assets 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, Indemnified Amounts for which the Seller is compensated under Section 1(b), or (iii) recourse (except as otherwise specifically provided in this Transferring Affiliate Letter) for uncollectible Receivables. Without limiting the generality of the foregoing, the Transferring Affiliates, jointly and severally, 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 Transferring Affiliate Letter or 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;

10


(iii)  the failure to vest and maintain vested in the Purchaser a first priority ownership interest in the Affected Assets 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 (if a Parent Group Member or designee thereof) to perform its duties or obligations in accordance with the provisions of the TAA; 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 Transferring Affiliate Letter 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 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;

(xi)  the commingling by the Seller, any other Originating Entity or the Collection Agent (if a Parent Group Member or designee thereof) of Collections of Receivables at any time with other funds;

(xii)  any investigation, litigation or proceeding related to Transferring Affiliate Letter, any of the other Transaction Documents, the use of proceeds of Transfers by the Seller or any other Originating Entity, the ownership of any Receivable, Related Security or Contract or any interest therein;

(xiii)  the failure of any Special Account Bank or any Designated Account Agent 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 Seller, any Originating Entity or the Agent (to the extent such Person is entitled to give such

11


instructions in accordance with the terms of the Transaction Documents) whether by reason of the exercise of set-off rights or otherwise;

(xiv)  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 Seller to qualify to do business or file any notice of business activity report or any similar report;

(xv)  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 or any transfer of any Receivable hereunder under statutory provisions or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code;

(xvi)  any action taken by the Seller, any other 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 any applicable Liquidity Provider Agreement, Credit Support Agreement or the credit support furnished by any applicable Credit Support Provider to the Seller 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 Seller 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;

(xvii)  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 Seller or any Parent Group Member; or

(xviii)  any failure by the Seller 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.

18.          Perfection Representations. The Perfection Representations shall be a part of the Agreement for all purposes. Each Transferring Affiliate hereby makes the representations and warranties set forth in the Perfection Representations as of the date of each sale of Receivables hereunder. The Perfection Representations shall survive termination of this Agreement.

12


[Remainder of page intentionally left blank]

13


EXECUTION VERSION

Very truly yours,

1.

APHERESIS CARE GROUP, INC.

2.

BIO-MEDICAL APPLICATIONS MANAGEMENT COMPANY, INC.

3.

BIO-MEDICAL APPLICATIONS OF ALABAMA, INC.

4.

BIO-MEDICAL APPLICATIONS OF AMARILLO, INC.

5.

BIO-MEDICAL APPLICATIONS OF ANACOSTIA, INC.

6.

BIO-MEDICAL APPLICATIONS OF AQUADILLA, INC.

7.

BIO-MEDICAL APPLICATIONS OF ARECIBO, INC.

8.

BIO-MEDICAL APPLICATIONS OF ARKANSAS, INC.

9.

BIO-MEDICAL APPLICATIONS OF BAYAMON, INC.

10.

BIO-MEDICAL APPLICATIONS OF BLUE SPRINGS, INC.

11.

BIO-MEDICAL APPLICATIONS OF CAGUAS, INC.

12.

BIO-MEDICAL APPLICATIONS OF CALIFORNIA, INC.

13.

BIO-MEDICAL APPLICATIONS OF CAMARILLO, INC.

14.

BIO-MEDICAL APPLICATIONS OF CAROLINA, INC.

15.

BIO-MEDICAL APPLICATIONS OF CLINTON, INC.

16.

BIO-MEDICAL APPLICATIONS OF COLUMBIA HEIGHTS, INC.

17.

BIO-MEDICAL APPLICATIONS OF CONNECTICUT, INC.

18.

BIO-MEDICAL APPLICATIONS OF DELAWARE, INC.

19.

BIO-MEDICAL APPLICATIONS OF DOVER, INC.

20.

BIO-MEDICAL APPLICATIONS OF EUREKA, INC.

21.

BIO-MEDICAL APPLICATIONS OF FAYETTEVILLE, INC.

22.

BIO-MEDICAL APPLICATIONS OF FLORIDA, INC.

23.

BIO-MEDICAL APPLICATIONS OF FREMONT, INC.

24.

BIO-MEDICAL APPLICATIONS OF FRESNO, INC.

25.

BIO-MEDICAL APPLICATIONS OF GEORGIA, INC.

26.

BIO-MEDICAL APPLICATIONS OF GUAYAMA, INC.

27.

BIO-MEDICAL APPLICATIONS OF HUMACAO, INC.

28.

BIO-MEDICAL APPLICATIONS OF ILLINOIS, INC.

29.

BIO-MEDICAL APPLICATIONS OF INDIANA, INC.

30.

BIO-MEDICAL APPLICATIONS OF KANSAS, INC.

31.

BIO-MEDICAL APPLICATIONS OF KENTUCKY, INC.

32.

BIO-MEDICAL APPLICATIONS OF LOS GATOS, INC.

33.

BIO-MEDICAL APPLICATIONS OF LOUISIANA, LLC

34.

BIO-MEDICAL APPLICATIONS OF MAINE, INC.

Signature Page to Second Amended and Restated Transferring Affiliate Letter


35.

BIO-MEDICAL APPLICATIONS OF MANCHESTER, INC.

36.

BIO-MEDICAL APPLICATIONS OF MARYLAND, INC.

37.

BIO-MEDICAL APPLICATIONS OF MASSACHUSETTS, INC.

38.

BIO-MEDICAL APPLICATIONS OF MAYAGUEZ, INC.

39.

BIO-MEDICAL APPLICATIONS OF MICHIGAN, INC.

40.

BIO-MEDICAL APPLICATIONS OF MINNESOTA, INC.

41.

BIO-MEDICAL APPLICATIONS OF MISSISSIPPI, INC.

42.

BIO-MEDICAL APPLICATIONS OF MISSOURI, INC.

43.

BIO-MEDICAL APPLICATIONS OF NEW HAMPSHIRE, INC.

44.

BIO-MEDICAL APPLICATIONS OF NEW JERSEY, INC.

45.

BIO-MEDICAL APPLICATIONS OF NEW MEXICO, INC.

46.

BIO-MEDICAL APPLICATIONS OF NORTH CAROLINA, INC.

47.

BIO-MEDICAL APPLICATIONS OF NORTHEAST D.C., INC.

48.

BIO-MEDICAL APPLICATIONS OF OHIO, INC.

49.

BIO-MEDICAL APPLICATIONS OF OKLAHOMA, INC.

50.

BIO-MEDICAL APPLICATIONS OF PENNSYLVANIA, INC.

51.

BIO-MEDICAL APPLICATIONS OF PONCE, INC.

52.

BIO-MEDICAL APPLICATIONS OF PUERTO RICO, INC.

53.

BIO-MEDICAL APPLICATIONS OF RHODE ISLAND, INC.

54.

BIO-MEDICAL APPLICATIONS OF RIO PIEDRAS, INC.

55.

BIO-MEDICAL APPLICATIONS OF SAN GERMAN, INC.

56.

BIO-MEDICAL APPLICATIONS OF SAN JUAN, INC.

57.

BIO-MEDICAL APPLICATIONS OF SOUTH CAROLINA, INC.

58.

BIO-MEDICAL APPLICATIONS OF SOUTHEAST WASHINGTON, INC.

59.

BIO-MEDICAL APPLICATIONS OF TENNESSEE, INC.

60.

BIO-MEDICAL APPLICATIONS OF TEXAS, INC.

15


61.

BIO-MEDICAL APPLICATIONS OF THE DISTRICT OF COLUMBIA, INC.

62.

BIO-MEDICAL APPLICATIONS OF VIRGINIA, INC.

63.

BIO-MEDICAL APPLICATIONS OF WEST VIRGINIA, INC.

64.

BIO-MEDICAL APPLICATIONS OF WISCONSIN, INC.

65.

BIO-MEDICAL APPLICATIONS OF WYOMING, LLC

66.

BREVARD COUNTY DIALYSIS, LLC

67.

CLAYTON COUNTY DIALYSIS, LLC

68.

CLERMONT DIALYSIS CENTER, LLC

69.

COLLEGE PARK DIALYSIS, LLC

70.

COLUMBUS AREA RENAL ALLIANCE, LLC

71.

CONEJO VALLEY DIALYSIS, INC.

72.

DIALYSIS AMERICA GEORGIA, LLC

73.

DIALYSIS ASSOCIATES OF NORTHERN NEW JERSEY, L.L.C.

74.

DIALYSIS CENTERS OF AMERICA - ILLINOIS, INC.

75.

DIALYSIS MANAGEMENT CORPORATION

76.

DIALYSIS SERVICES OF ATLANTA, INC.

77.

DIALYSIS SERVICES OF CINCINNATI, INC.

78.

DIALYSIS SPECIALISTS OF MARIETTA, LTD.

79.

DIALYSIS SPECIALISTS OF TOPEKA, INC.

80.

DOUGLAS COUNTY DIALYSIS, LLC

81.

DU PAGE DIALYSIS LTD.

82.

EVEREST HEALTHCARE HOLDINGS, INC.

83.

EVEREST HEALTHCARE INDIANA, INC.

84.

EVEREST HEALTHCARE OHIO, INC.

85.

EVEREST HEALTHCARE RHODE ISLAND, INC.

86.

EVEREST HEALTHCARE TEXAS, L.P.

87.

FMS DELAWARE DIALYSIS, LLC

88.

FMS PHILADELPHIA DIALYSIS, LLC

89.

FONDREN DIALYSIS CLINIC, INC.

90.

FORT SCOTT REGIONAL DIALYSIS CENTER, INC.

91.

FOUR STATE REGIONAL DIALYSIS CENTER, INC.

92.

FRESENIUS KIDNEY CARE GUAM, LLC

93.

FRESENIUS KIDNEY CARE PITTSBURGH, LLC

94.

FRESENIUS MANAGEMENT SERVICES, INC.

95.

FRESENIUS MEDICAL CARE – SOUTH TEXAS KIDNEY, LLC

96.

FRESENIUS MEDICAL CARE DIALYSIS SERVICES COLORADO, LLC

97.

FRESENIUS MEDICAL CARE DIALYSIS SERVICES-OREGON, LLC

98.

FRESENIUS MEDICAL CARE HARSTON HALL, LLC

99.

FRESENIUS MEDICAL CARE HOLDINGS, INC.

100.

FRESENIUS MEDICAL CARE OF ILLINOIS, LLC

16


101.

FRESENIUS MEDICAL CARE OF MONTANA, LLC

102.

FRESENIUS MEDICAL CARE VENTURES, LLC

103.

FRESENIUS MEDICAL CARE-OSUIM KIDNEY CENTERS, LLC

104.

FRESENIUS USA MANUFACTURING, INC.

105.

FRESENIUS USA MARKETING, INC.

106.

FRESENIUS USA, INC.

107.

GULF REGION MOBILE DIALYSIS, INC.

108.

HAEMO-STAT, INC.

109.

HAUPPAUGE DIALYSIS CENTER, LLC

110.

HENRY DIALYSIS CENTER, LLC

111.

HOLTON DIALYSIS CLINIC, LLC

112.

HOME DIALYSIS OF MUHLENBERG COUNTY, INC.

113.

HOMESTEAD ARTIFICIAL KIDNEY CENTER, INC.

114.

INLAND NORTHWEST RENAL CARE GROUP, LLC

115.

JEFFERSON COUNTY DIALYSIS, INC.

116.

KDCO, INC.

117.

KENTUCKY RENAL CARE GROUP, LLC

118.

LITTLE ROCK DIALYSIS, INC.

119.

MAUMEE DIALYSIS SERVICES, LLC

120.

METRO DIALYSIS CENTER - NORMANDY, INC.

121.

METRO DIALYSIS CENTER - NORTH, INC.

122.

NATIONAL MEDICAL CARE, INC.

123.

NATIONAL NEPHROLOGY ASSOCIATES OF TEXAS, L.P.

124.

NEW YORK DIALYSIS SERVICES, INC.

125.

NNA OF ALABAMA, INC.

126.

NNA OF EAST ORANGE, L.L.C.

127.

NNA OF GEORGIA, INC.

128.

NNA OF HARRISON, L.L.C.

129.

NNA OF LOUISIANA, LLC

130.

NNA OF OKLAHOMA, INC.

131.

NNA OF OKLAHOMA, L.L.C.

132.

NNA OF RHODE ISLAND, INC.

133.

NNA OF TOLEDO, INC.

134.

NNA-SAINT BARNABAS-LIVINGSTON, L.L.C.

135.

NNA-SAINT BARNABAS, L.L.C.

136.

NORTHERN NEW JERSEY DIALYSIS, L.L.C.

137.

NRA-ADA, OKLAHOMA, LLC

138.

NRA-AUGUSTA, GEORGIA, LLC

139.

NRA-BAMBERG, SOUTH CAROLINA, LLC

140.

NRA-CROSSVILLE, TENNESSEE, LLC

141.

NRA-FARMINGTON, MISSOURI, LLC

142.

NRA-GEORGETOWN, KENTUCKY, LLC

143.

NRA-HOGANSVILLE, GEORGIA, LLC

144.

NRA-HOLLY HILL, SOUTH CAROLINA, LLC

17


145.

NRA-HOLLYWOOD, SOUTH CAROLINA, LLC

146.

NRA-INPATIENT DIALYSIS, LLC

147.

NRA-LAGRANGE, GEORGIA, LLC

148.

NRA-MT. PLEASANT, SOUTH CAROLINA, LLC

149.

NRA-NEW CASTLE, INDIANA, LLC

150.

NRA-NEWNAN ACQUISITION, LLC

151.

NRA-ORANGEBURG, SOUTH CAROLINA, LLC

152.

NRA-PALMETTO, GEORGIA, LLC

153.

NRA-PRINCETON, KENTUCKY, LLC

154.

NRA-ROANOKE, ALABAMA, LLC

155.

NRA-SOUTH CITY, MISSOURI, LLC

156.

NRA-ST. LOUIS (HOME THERAPY CENTER), MISSOURI, LLC

157.

NRA-ST. LOUIS, MISSOURI, LLC

158.

NRA-TALLADEGA, ALABAMA, LLC

159.

NRA-VALDOSTA (NORTH), GEORGIA, LLC

160.

NRA-VALDOSTA, GEORGIA, LLC

161.

NRA-WASHINGTON COUNTY, MISSOURI, LLC

162.

NRA-WINCHESTER, INDIANA, LLC

163.

QUALICENTERS ALBANY, LTD.

164.

QUALICENTERS BEND LLC

165.

QUALICENTERS COOS BAY, LTD.

166.

QUALICENTERS EUGENE-SPRINGFIELD, LTD.

167.

QUALICENTERS INLAND NORTHWEST L.L.C.

168.

QUALICENTERS PUEBLO LLC

169.

QUALICENTERS SALEM LLC

170.

RAI CARE CENTERS OF ALABAMA, LLC

171.

RAI CARE CENTERS OF FLORIDA I, LLC

172.

RAI CARE CENTERS OF FLORIDA II, LLC

173.

RAI CARE CENTERS OF GEORGIA I, LLC

174.

RAI CARE CENTERS OF ILLINOIS I, LLC

175.

RAI CARE CENTERS OF ILLINOIS II, LLC

176.

RAI CARE CENTERS OF MARYLAND I, LLC

177.

RAI CARE CENTERS OF MICHIGAN I, LLC

178.

RAI CARE CENTERS OF MICHIGAN II, LLC

179.

RAI CARE CENTERS OF NEBRASKA II, LLC

180.

RAI CARE CENTERS OF NORTH CAROLINA II, LLC

181.

RAI CARE CENTERS OF NORTHERN CALIFORNIA I, LLC

182.

RAI CARE CENTERS OF NORTHERN CALIFORNIA II, LLC

183.

RAI CARE CENTERS OF OAKLAND II, LLC

184.

RAI CARE CENTERS OF SOUTH CAROLINA I, LLC

185.

RAI CARE CENTERS OF SOUTHERN CALIFORNIA I, LLC

18


186.

RAI CARE CENTERS OF SOUTHERN CALIFORNIA II, LLC

187.

RAI CARE CENTERS OF VIRGINIA I, LLC

188.

RCG BLOOMINGTON, LLC

189.

RCG EAST TEXAS, LLP

190.

RCG INDIANA, L.L.C.

191.

RCG IRVING, LLP

192.

RCG MARTIN, LLC

193.

RCG MEMPHIS EAST, LLC

194.

RCG MISSISSIPPI, INC.

195.

RCG PENSACOLA, LLC

196.

RCG ROBSTOWN, LLP

197.

RCG UNIVERSITY DIVISION, INC.

198.

RELIANT RENAL CARE LAPEER HOME CHOICE, LLC

199.

RENAL CARE GROUP, INC.

200.

RENAL CARE GROUP ALASKA, INC.

201.

RENAL CARE GROUP EAST, INC.

202.

RENAL CARE GROUP MAPLEWOOD, LLC

203.

RENAL CARE GROUP NORTHWEST, INC.

204.

RENAL CARE GROUP OF THE MIDWEST, INC.

205.

RENAL CARE GROUP OF THE OZARKS, LLC

206.

RENAL CARE GROUP OF THE ROCKIES, LLC

207.

RENAL CARE GROUP OF THE SOUTH, INC.

208.

RENAL CARE GROUP OF THE SOUTHEAST, INC.

209.

RENAL CARE GROUP SOUTH NEW MEXICO, LLC

210.

RENAL CARE GROUP SOUTHWEST MICHIGAN, LLC

211.

RENAL CARE GROUP SOUTHWEST, L.P.

212.

RENAL CARE GROUP TERRE HAUTE, LLC

213.

RENAL CARE GROUP TEXAS, INC.

214.

RENAL CARE GROUP TOLEDO, LLC

215.

RENAL CARE GROUP-HARLINGEN, L.P.

216.

RENALPARTNERS, INC.

217.

RENEX DIALYSIS CLINIC OF BLOOMFIELD, INC.

218.

RENEX DIALYSIS CLINIC OF BRIDGETON, INC.

219.

RENEX DIALYSIS CLINIC OF CREVE COEUR, INC.

220.

RENEX DIALYSIS CLINIC OF MAPLEWOOD, INC.

221.

RENEX DIALYSIS CLINIC OF ORANGE, INC.

222.

RENEX DIALYSIS CLINIC OF PITTSBURGH, INC.

223.

RENEX DIALYSIS CLINIC OF SOUTH GEORGIA, INC.

224.

RENEX DIALYSIS CLINIC OF ST. LOUIS, INC.

225.

RENEX DIALYSIS CLINIC OF UNIVERSITY CITY, INC.

226.

RENEX DIALYSIS FACILITIES, INC.

19


227.

SAINT LOUIS RENAL CARE, LLC

228.

SAN DIEGO DIALYSIS SERVICES, INC.

229.

SANTA BARBARA COMMUNITY DIALYSIS CENTER, INC.

230.

SMYRNA DIALYSIS CENTER, LLC

231.

SSKG, INC.

232.

ST. LOUIS REGIONAL DIALYSIS CENTER, INC.

233.

STAT DIALYSIS CORPORATION

234.

STONE MOUNTAIN DIALYSIS CENTER, LLC

235.

STUTTGART DIALYSIS, LLC

236.

TAPPAHANNOCK DIALYSIS CENTER, INC.

237.

TERRELL DIALYSIS CENTER, L.L.C.

238.

WARRENTON DIALYSIS FACILITY, INC.

239.

WEST END DIALYSIS CENTER, INC.

240.

WSKC DIALYSIS SERVICES, INC.

20


(each a “Transferring Affiliate”)

By:

Name:

Title:

Acknowledged and accepted:

NATIONAL MEDICAL CARE, INC.

By

Name:

Title:

NMC FUNDING CORPORATION

By

Name:

Title:

Signature Page to Second Amended and Restated Transferring Affiliate Letter


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 The Bank of Nova Scotia.

The Bank of Nova Scotia as Agent

By

Name:

Title:

Signature Page to Second Amended and Restated Transferring Affiliate Letter


EXHIBIT 1

Amended and Restated

Exhibit 1 to the

Amended and Restated

Transferring Affiliate Letter

FORM OF REMOVAL SUPPLEMENT

Reference is hereby made to the Amended and Restated Transferring Affiliate Letter dated October 16, 2008 (the “Transferring Affiliate Letter”) from the Transferring Affiliates to National Medical Care, Inc. (the “Seller”), as the same may be amended, restated, supplemented or otherwise modified from time to time. Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Transferring Affiliate Letter.

Subject to satisfaction of the conditions set forth in Section 8 of the Transferring Affiliate Letter and Section 2.15 of the TAA, [               ] (the “Removed TA”) is hereby removed as a Transferring Affiliate from the Transferring Affiliate Letter on the date hereof (such date, the “Removal Date”).

Notwithstanding the removal of the Removed TA as a Transferring Affiliate under the Transferring Affiliate Letter, on and after the Removal Date, the Removed TA 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 each covenant or undertaking required to be performed by the Seller under the Agreement that relates to any Collections, accounts or the assets or properties of the Removed TA.

The execution, delivery and effectiveness of this Removal Supplement shall not operate as a waiver of any right, power or remedy of the Seller or any of its assignees under the Transferring Affiliate Letter or any other document, instrument, or agreement executed in connection therewith, nor constitute a waiver of any provision contained therein.

THIS REMOVAL SUPPLEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICT OF LAW PROVISIONS) AND DECISIONS OF THE STATE OF NEW YORK.

This Removal Supplement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument. Delivery of an executed counterpart via email or other electronic transmission shall be as effective as delivery of an original counterpart.

Ex 1-1


[TRANSFERRING AFFILIATE],

as Removed TA

By:

Name:

Title:

NATIONAL MEDICAL CARE, INC.,

as Seller

By:

Name:

Title:

NMC FUNDING CORPORATION,

as Purchaser and Transferor

By:

Name:

Title:

Ex 1-2


EXHIBIT J

to

THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT LIST OF TRANSFERRING AFFILIATES, CHIEF EXECUTIVE

OFFICES OF TRANSFERRING AFFILIATES AND TRADENAMES SECTIONS 2.7(b), 3.1(i) and 3.1(k)(iv)

3.1(i) Place of Business:

For each Transferring Affiliate, the principal place of business, chief executive office, and the offices where each Transferring Affiliate keeps substantially all its Records is 920 Winter Street, Waltham, MA 02451 and such other locations listed in Exhibit G.

Transferring Affiliate

State of
Incorporation

1.

Apheresis Care Group, Inc.

Delaware

2.

Bio-Medical Applications Management Company, Inc.

Delaware

3.

Bio-Medical Applications of Alabama, Inc.

Delaware

4.

Bio-Medical Applications of Amarillo, Inc.

Delaware

5.

Bio-Medical Applications of Anacostia, Inc.

Delaware

6.

Bio-Medical Applications of Aquadilla, Inc.

Delaware

7.

Bio-Medical Applications of Arecibo, Inc.

Delaware

8.

Bio-Medical Applications of Arkansas, Inc.

Delaware

9.

Bio-Medical Applications of Bayamon, Inc.

Delaware

10.

Bio-Medical Applications of Blue Springs, Inc.

Delaware

11.

Bio-Medical Applications of Caguas, Inc.

Delaware

12.

Bio-Medical Applications of California, Inc.

Delaware

13.

Bio-Medical Applications of Camarillo, Inc.

Delaware

14.

Bio-Medical Applications of Carolina, Inc.

Delaware

15.

Bio-Medical Applications of Clinton, Inc.

Delaware

16.

Bio-Medical Applications of Columbia Heights, Inc.

Delaware

17.

Bio-Medical Applications of Connecticut, Inc.

Delaware

18.

Bio-Medical Applications of Delaware, Inc.

Delaware

19.

Bio-Medical Applications of Dover, Inc.

Delaware

20.

Bio-Medical Applications of Eureka, Inc.

Delaware

21.

Bio-Medical Applications of Fayetteville, Inc.

Delaware

22.

Bio-Medical Applications of Florida, Inc.

Delaware

23.

Bio-Medical Applications of Fremont, Inc.

Delaware

24.

Bio-Medical Applications of Fresno, Inc.

Delaware

25.

Bio-Medical Applications of Georgia, Inc.

Delaware

26.

Bio-Medical Applications of Guayama, Inc.

Delaware

27.

Bio-Medical Applications of Humacao, Inc.

Delaware

28.

Bio-Medical Applications of Illinois, Inc.

Delaware

J-1


Transferring Affiliate

State of
Incorporation

29.

Bio-Medical Applications of Indiana, Inc.

Delaware

30.

Bio-Medical Applications of Kansas, Inc.

Delaware

31.

Bio-Medical Applications of Kentucky, Inc.

Delaware

32.

Bio-Medical Applications of Los Gatos, Inc.

Delaware

33.

Bio-Medical Applications of Louisiana, LLC

Delaware

34.

Bio-Medical Applications of Maine, Inc.

Delaware

35.

Bio-Medical Applications of Manchester, Inc.

Delaware

36.

Bio-Medical Applications of Maryland, Inc.

Delaware

37.

Bio-Medical Applications of Massachusetts, Inc.

Delaware

38.

Bio-Medical Applications of Mayaguez, Inc.

Delaware

39.

Bio-Medical Applications of Michigan, Inc.

Delaware

40.

Bio-Medical Applications of Minnesota, Inc.

Delaware

41.

Bio-Medical Applications of Mississippi, Inc.

Delaware

42.

Bio-Medical Applications of Missouri, Inc.

Delaware

43.

Bio-Medical Applications of New Hampshire, Inc.

Delaware

44.

Bio-Medical Applications of New Jersey, Inc.

Delaware

45.

Bio-Medical Applications of New Mexico, Inc.

Delaware

46.

Bio-Medical Applications of North Carolina, Inc.

Delaware

47.

Bio-Medical Applications of Northeast D.C., Inc.

Delaware

48.

Bio-Medical Applications of Ohio, Inc.

Delaware

49.

Bio-Medical Applications of Oklahoma, Inc.

Delaware

50.

Bio-Medical Applications of Pennsylvania, Inc.

Delaware

51.

Bio-Medical Applications of Ponce, Inc.

Delaware

52.

Bio-Medical Applications of Puerto Rico, Inc.

Delaware

53.

Bio-Medical Applications of Rhode Island, Inc.

Delaware

54.

Bio-Medical Applications of Rio Piedras, Inc.

Delaware

55.

Bio-Medical Applications of San German, Inc.

Delaware

56.

Bio-Medical Applications of San Juan, Inc.

Delaware

57.

Bio-Medical Applications of South Carolina, Inc.

Delaware

58.

Bio-Medical Applications of Southeast Washington, Inc.

Delaware

59.

Bio-Medical Applications of Tennessee, Inc.

Delaware

60.

Bio-Medical Applications of Texas, Inc.

Delaware

61.

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

Delaware

62.

Bio-Medical Applications of Virginia, Inc.

Delaware

63.

Bio-Medical Applications of West Virginia, Inc.

Delaware

64.

Bio-Medical Applications of Wisconsin, Inc.

Delaware

65.

Bio-Medical Applications of Wyoming, LLC

Delaware

66.

Brevard County Dialysis, LLC

Florida

67.

Clayton County Dialysis, LLC

Georgia

68.

Clermont Dialysis Center, LLC

Georgia

69.

College Park Dialysis, LLC

Georgia

70.

Columbus Area Renal Alliance, LLC

Delaware

71.

Conejo Valley Dialysis, Inc.

California

72.

Dialysis America Georgia, LLC

Delaware

J-2


Transferring Affiliate

State of
Incorporation

73.

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

New Jersey

74.

Dialysis Centers of America - Illinois, Inc.

Illinois

75.

Dialysis Management Corporation

Texas

76.

Dialysis Services of Atlanta, Inc.

Georgia

77.

Dialysis Services of Cincinnati, Inc.

Ohio

78.

Dialysis Specialists of Marietta, Ltd.

Ohio

79.

Dialysis Specialists of Topeka, Inc.

Kansas

80.

Douglas County Dialysis, LLC

Georgia

81.

Du Page Dialysis Ltd.

Illinois

82.

Everest Healthcare Holdings, Inc.

Delaware

83.

Everest Healthcare Indiana, Inc.

Indiana

84.

Everest Healthcare Ohio, Inc.

Ohio

85.

Everest Healthcare Rhode Island, Inc.

Delaware

86.

Everest Healthcare Texas, L.P.

Delaware

87.

FMS Delaware Dialysis, LLC

Delaware

88.

FMS Philadelphia Dialysis, LLC

Delaware

89.

Fondren Dialysis Clinic, Inc.

Texas

90.

Fort Scott Regional Dialysis Center, Inc.

Missouri

91.

Four State Regional Dialysis Center, Inc.

Missouri

92.

Fresenius Kidney Care Guam, LLC

Delaware

93.

Fresenius Kidney Care Pittsburgh, LLC

Delaware

94.

Fresenius Management Services, Inc.

Delaware

95.

Fresenius Medical Care – South Texas Kidney, LLC

Delaware

96.

Fresenius Medical Care Dialysis Services Colorado, LLC

Delaware

97.

Fresenius Medical Care Dialysis Services-Oregon, LLC

Oregon

98.

Fresenius Medical Care Harston Hall, LLC

Delaware

99.

Fresenius Medical Care Holdings, Inc.

New York

100.

Fresenius Medical Care of Illinois, LLC

Delaware

101.

Fresenius Medical Care of Montana, LLC

Delaware

102.

Fresenius Medical Care Ventures, LLC

Delaware

103.

Fresenius Medical Care-OSUIM Kidney Centers, LLC

Delaware

104.

Fresenius USA Manufacturing, Inc.

Delaware

105.

Fresenius USA Marketing, Inc.

Delaware

106.

Fresenius USA, Inc.

Massachusetts

107.

Gulf Region Mobile Dialysis, Inc.

Delaware

108.

Haemo-Stat, Inc.

California

109.

Hauppauge Dialysis Center, LLC

New York

110.

Henry Dialysis Center, LLC

Georgia

111.

Holton Dialysis Clinic, LLC

Georgia

112.

Home Dialysis of Muhlenberg County, Inc.

Kentucky

113.

Homestead Artificial Kidney Center, Inc.

Florida

114.

Inland Northwest Renal Care Group, LLC

Washington

115.

Jefferson County Dialysis, Inc.

Arkansas

116.

KDCO, Inc.

Missouri

J-3


Transferring Affiliate

State of
Incorporation

117.

Kentucky Renal Care Group, LLC

Delaware

118.

Little Rock Dialysis, Inc.

Arkansas

119.

Maumee Dialysis Services, LLC

Delaware

120.

Metro Dialysis Center - Normandy, Inc.

Missouri

121.

Metro Dialysis Center - North, Inc.

Missouri

122.

National Medical Care, Inc.

Delaware

123.

National Nephrology Associates of Texas, L.P.

Texas

124.

New York Dialysis Services, Inc.

New York

125.

NNA of Alabama, Inc.

Alabama

126.

NNA of East Orange, L.L.C.

New Jersey

127.

NNA of Georgia, Inc.

Delaware

128.

NNA of Harrison, L.L.C.

New Jersey

129.

NNA of Louisiana, LLC

Louisiana

130.

NNA of Oklahoma, Inc.

Nevada

131.

NNA of Oklahoma, L.L.C.

Oklahoma

132.

NNA of Rhode Island, Inc.

Rhode Island

133.

NNA of Toledo, Inc.

Ohio

134.

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

New Jersey

135.

NNA-Saint Barnabas, L.L.C.

New Jersey

136.

Northern New Jersey Dialysis, L.L.C.

Delaware

137.

NRA-Ada, Oklahoma, LLC

Delaware

138.

NRA-Augusta, Georgia, LLC

Georgia

139.

NRA-Bamberg, South Carolina, LLC

Tennessee

140.

NRA-Crossville, Tennessee, LLC

Tennessee

141.

NRA-Farmington, Missouri, LLC

Delaware

142.

NRA-Georgetown, Kentucky, LLC

Delaware

143.

NRA-Hogansville, Georgia, LLC

Delaware

144.

NRA-Holly Hill, South Carolina, LLC

Tennessee

145.

NRA-Hollywood, South Carolina, LLC

Delaware

146.

NRA-Inpatient Dialysis, LLC

Tennessee

147.

NRA-LaGrange, Georgia, LLC

Delaware

148.

NRA-Mt. Pleasant, South Carolina, LLC

Tennessee

149.

NRA-New Castle, Indiana, LLC

Delaware

150.

NRA-Newnan Acquisition, LLC

Tennessee

151.

NRA-Orangeburg, South Carolina, LLC

Tennessee

152.

NRA-Palmetto, Georgia, LLC

Delaware

153.

NRA-Princeton, Kentucky, LLC

Tennessee

154.

NRA-Roanoke, Alabama, LLC

Tennessee

155.

NRA-South City, Missouri, LLC

Delaware

156.

NRA-St. Louis (Home Therapy Center), Missouri, LLC

Delaware

157.

NRA-St. Louis, Missouri, LLC

Delaware

158.

NRA-Talladega, Alabama, LLC

Tennessee

159.

NRA-Valdosta (North), Georgia, LLC

Delaware

160.

NRA-Valdosta, Georgia, LLC

Delaware

J-4


Transferring Affiliate

State of
Incorporation

161.

NRA-Washington County, Missouri, LLC

Delaware

162.

NRA-Winchester, Indiana, LLC

Delaware

163.

QualiCenters Albany, Ltd.

Colorado

164.

QualiCenters Bend LLC

Colorado

165.

QualiCenters Coos Bay, Ltd.

Colorado

166.

QualiCenters Eugene-Springfield, Ltd.

Colorado

167.

QualiCenters Inland Northwest L.L.C.

Colorado

168.

QualiCenters Pueblo LLC

Colorado

169.

QualiCenters Salem LLC

Colorado

170.

RAI Care Centers of Alabama, LLC

Delaware

171.

RAI Care Centers of Florida I, LLC

Delaware

172.

RAI Care Centers of Florida II, LLC

Delaware

173.

RAI Care Centers of Georgia I, LLC

Delaware

174.

RAI Care Centers of Illinois I, LLC

Delaware

175.

RAI Care Centers of Illinois II, LLC

Delaware

176.

RAI Care Centers of Maryland I, LLC

Delaware

177.

RAI Care Centers of Michigan I, LLC

Delaware

178.

RAI Care Centers of Michigan II, LLC

Delaware

179.

RAI Care Centers of Nebraska II, LLC

Delaware

180.

RAI Care Centers of North Carolina II, LLC

Delaware

181.

RAI Care Centers of Northern California I, LLC

Delaware

182.

RAI Care Centers of Northern California II, LLC

Delaware

183.

RAI Care Centers of Oakland II, LLC

Delaware

184.

RAI Care Centers of South Carolina I, LLC

Delaware

185.

RAI Care Centers of Southern California I, LLC

Delaware

186.

RAI Care Centers of Southern California II, LLC

Delaware

187.

RAI Care Centers of Virginia I, LLC

Delaware

188.

RCG Bloomington, LLC

Delaware

189.

RCG East Texas, LLP

Delaware

190.

RCG Indiana, L.L.C.

Delaware

191.

RCG Irving, LLP

Delaware

192.

RCG Martin, LLC

Delaware

193.

RCG Memphis East, LLC

Delaware

194.

RCG Mississippi, Inc.

Delaware

195.

RCG Pensacola, LLC

Delaware

196.

RCG Robstown, LLP

Delaware

197.

RCG University Division, Inc.

Tennessee

198.

Reliant Renal Care Lapeer Home Choice, LLC

Delaware

199.

Renal Care Group, Inc.

Delaware

200.

Renal Care Group Alaska, Inc.

Alaska

201.

Renal Care Group East, Inc.

Pennsylvania

202.

Renal Care Group Maplewood, LLC

Delaware

203.

Renal Care Group Northwest, Inc.

Delaware

204.

Renal Care Group of the Midwest, Inc.

Kansas

J-5


Transferring Affiliate

State of
Incorporation

205.

Renal Care Group of the Ozarks, LLC

Delaware

206.

Renal Care Group of the Rockies, LLC

Delaware

207.

Renal Care Group of the South, Inc.

Delaware

208.

Renal Care Group of the Southeast, Inc.

Florida

209.

Renal Care Group South New Mexico, LLC

Delaware

210.

Renal Care Group Southwest Michigan, LLC

Delaware

211.

Renal Care Group Southwest, L.P.

Delaware

212.

Renal Care Group Terre Haute, LLC

Delaware

213.

Renal Care Group Texas, Inc.

Texas

214.

Renal Care Group Toledo, LLC

Delaware

215.

Renal Care Group-Harlingen, L.P.

Delaware

216.

RenalPartners, Inc.

Delaware

217.

Renex Dialysis Clinic of Bloomfield, Inc.

New Jersey

218.

Renex Dialysis Clinic of Bridgeton, Inc.

Missouri

219.

Renex Dialysis Clinic of Creve Coeur, Inc.

Missouri

220.

Renex Dialysis Clinic of Maplewood, Inc.

Missouri

221.

Renex Dialysis Clinic of Orange, Inc.

New Jersey

222.

Renex Dialysis Clinic of Pittsburgh, Inc.

Pennsylvania

223.

Renex Dialysis Clinic of South Georgia, Inc.

Georgia

224.

Renex Dialysis Clinic of St. Louis, Inc.

Missouri

225.

Renex Dialysis Clinic of University City, Inc.

Missouri

226.

Renex Dialysis Facilities, Inc.

Mississippi

227.

Saint Louis Renal Care, LLC

Delaware

228.

San Diego Dialysis Services, Inc.

Delaware

229.

Santa Barbara Community Dialysis Center, Inc.

California

230.

Smyrna Dialysis Center, LLC

Georgia

231.

SSKG, Inc.

Illinois

232.

St. Louis Regional Dialysis Center, Inc.

Missouri

233.

STAT Dialysis Corporation

Delaware

234.

Stone Mountain Dialysis Center, LLC

Georgia

235.

Stuttgart Dialysis, LLC

Arkansas

236.

Tappahannock Dialysis Center, Inc.

Virginia

237.

Terrell Dialysis Center, L.L.C.

Delaware

238.

Warrenton Dialysis Facility, Inc.

Virginia

239.

West End Dialysis Center, Inc.

Virginia

240.

WSKC Dialysis Services, Inc.

Illinois

3.1(k)(iv)

Tradenames:

Renal Care Group

National Nephrology Associates

TruBlu Logistics (FUSA Mfg)

Fresenius Renal Pharmaceuticals

Fresenius Renal Technologies

Fresenius Renal Therapies

Fresenius Kidney Care

Fresenius USA

3.1(k)(iv)

Merger:

On September 25, 2018, American Access Care of Bucks County, LLC, American Access Care of Pittsburgh, LLC, Gynesis Healthcare of

J-6


Pennsylvania, Inc. and PD Solutions of Pennsylvania, merged into Physicians Dialysis Company, Inc.

On September 25, 2018, Mercy Dialysis Center, Inc. merged into Bio- Medical Applications of Wisconsin, Inc.

J-7


EXHIBIT K

to

THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT

FORM OF ACCOUNT AGENT AGREEMENT

[Attached]

K-1


ACCOUNT AGENT AGREEMENT

Account Agent Agreement (this “Agreement”), dated as of August 11, 2021, 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 The Bank of Nova Scotia, 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 Second Amended and Restated Transferring Affiliate Letter dated as of August 11, 2021 (as the same may from time to time be amended, restated, supplemented or otherwise modified, the “Transferring Affiliate Letter”) 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 Third Amended and Restated Receivables Purchase Agreement dated as of August 11, 2021 (as the same may from time to time be amended, restated, supplemented or otherwise modified, the “Receivables Agreement”) 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, to NMC Funding in accordance with the terms thereof.

(3)          NMC Funding has entered into that certain Eighth Amended and Restated Transfer and Administration Agreement dated as of August 11, 2021 (as the same may from time to time be amended, restated, supplemented or otherwise modified, the “TAA”) with NMC, as the “Collection Agent” thereunder, certain “Investors” and “Administrative Agents” from time to time party thereto (together, 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.

(4)          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.

(5)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.

— 1 —


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.

(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.

— 2 —


(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.

(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 9-313, 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.

(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

— 3 —


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 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:

By:

Mark Fawcett,

Senior Vice President & Treasurer

By:

Mark Fawcett,

Senior Vice President & Treasurer

By:

Mark Fawcett,

Senior Vice President & Treasurer

Accepted and agreed as of the date first above written:

NMC Funding Corporation

By:

Mark Fawcett,

Senior Vice President & Treasurer

The Bank of Nova Scotia., as Agent

By:

Name:

Title:

Signature Page to Account Agent Agreement Dated as of August 11, 2021


Exhibit 10.8

EXECUTION VERSION

AMENDMENT NO. 1

Dated as of October 28, 2021

to

EIGHTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

Dated as of August 11, 2021

THIS AMENDMENT NO. 1 (this “Amendment”) dated as of October 28,  2021  is entered into by and among (i) NMC FUNDING CORPORATION, a Delaware corporation (the “Transferor”), (ii) NATIONAL MEDICAL CARE, INC., a Delaware corporation, as collection agent (the “Collection Agent”), (iii) the “Conduit Investors,” “Bank Investors” and “Administrative Agents” identified on the signature pages hereto and (iv) THE BANK OF NOVA SCOTIA, as agent (the “Agent”).

PRELIMINARY STATEMENTS

A.The Transferor, the Collection Agent, the Conduit Investors, the Bank Investors, the Administrative Agents and the Agent are parties to that certain Eighth Amended and Restated Transfer and Administration Agreement dated as of August 11, 2021 (the “TAA”). Capitalized terms used but not otherwise defined in this Amendment shall have the meanings assigned to them in the TAA.

B.In addition, the parties hereto have agreed to amend the TAA on the terms and conditions set forth below.

NOW, THEREFORE, in consideration of the premises set forth above, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

SECTION 1. Amendments to TAA. As of the Effective Date (as defined below), subject to the conditions precedent set forth in Section 2 of this Amendment, the TAA is hereby amended as follows:

1.1.Excess Unbilled Receivables Amount. The definition of “Excess Unbilled Receivables Amount” in Section 1.1 of the TAA is hereby deleted and replaced with the following:

Excess Unbilled Receivables Amount” shall mean, as reported on the Investor Report dated as of the last day of each calendar month, the amount by which the aggregate Outstanding Balance of all Unbilled Eligible Receivables (excluding any Short Term Unbilled Government Program Receivables) exceeds 35.00% of the aggregate Outstanding Balance of all Eligible Receivables; provided, however, that the Excess Unbilled Receivables Amount shall be the aggregate Outstanding Balance

1


of all Unbilled Eligible Receivables (excluding any Short Term Unbilled Government Program Receivables) if FME KGaA is rated less than “BBB-” by Standard and Poor’s or “Baa3” by Moody’s.

1.2US Government Obligor. The definition of “US Government Obligor” in Section 1.1 of the TAA is hereby amended by inserting the following double-underlined language therein:

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 (other than a third-party Obligor) referred to in clause (A), (B) or (F) of the definition of “Obligor” contained in this Section 1.1.

SECTION 2. Conditions Precedent. This Amendment shall become effective as of October 28, 2021 (the “Effective Date”) subject to the Agent’s receipt of the following, each in form and substance satisfactory to each Administrative Agent:

(a)counterparts of this Amendment duly executed by the Transferor, the Collection Agent, the Conduit Investors, the Bank Investors, the Administrative Agents and the Agent; and

(b)such other documents, instruments, certificates and opinions as the Agent or any Administrative Agent shall reasonably request.

SECTION 3. Covenants, Representations and Warranties of the Transferor and the Collection Agent.

3.1Upon the effectiveness of this Amendment, each of the Transferor and the Collection Agent hereby reaffirms all covenants, representations and warranties made by it in the TAA and agrees that all such covenants, representations and warranties shall be deemed to have been remade as of the Effective Date.

3.2Each of the Transferor and the Collection Agent hereby represents and warrants that (i) this Amendment constitutes the legal, valid and binding obligation of such party, enforceable against it in accordance with its terms and (ii) upon the effectiveness of this Amendment, no Termination Event or Potential Termination Event shall exist under the TAA.

SECTION 4. Reference to and Effect on the TAA.

4.1Unless otherwise indicated, all references in this Amendment to a specific “Section”, “Schedule”, “Exhibit” and other subdivision are to such Section, Schedule, Exhibit or other subdivision of the TAA.

4.2Upon the effectiveness of this Amendment, each reference in the TAA to “this Agreement”, “hereunder”, “hereof”, “herein”, “hereby” or words of like import shall mean and be a reference to the TAA as amended hereby, and each reference to the TAA in any other

2


document, instrument and agreement executed and/or delivered in connection with the TAA shall mean and be a reference to the TAA as amended hereby.

4.3Except as specifically amended hereby, the TAA and all other documents, instruments and agreements executed and/or delivered in connection therewith shall remain in full force and effect and are hereby ratified and confirmed.

4.4The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Investor, any Administrative Agent or the Agent under the TAA or any other document, instrument, or agreement executed in connection therewith, nor constitute a waiver of any provision contained therein.

SECTION 5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICT OF LAW PROVISIONS) AND DECISIONS OF THE STATE OF NEW YORK.

SECTION 6. Execution in Counterparts; Electronic  Signatures.  This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument. The words “execution,” signed,” “signature,” and words of like import in this Amendment shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record- keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code, and any other applicable law. Any provisions of this Amendment 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 7. Headings. Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.

[The remainder of this page intentionally left blank]

3


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

NMC FUNDING CORPORATION,
as Transferor

By:

/s/ Mark Fawcett

Name:

Mark Fawcett

Title:

Senior Vice President & Treasurer

NATIONAL MEDICAL CARE, INC., as
Collection Agent

By:

/s/ Mark Fawcett

Name:

Mark Fawcett

Title:

Senior Vice President & Treasurer

Signature Page

Amendment No. 1 to Eighth Amended and Restated

Transfer and Administration Agreement


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

By:

/s/ Douglas Noe

Name:

Douglas Noe

Title:

Managing Director

LIBERTY STREET FUNDING LLC,
as a Conduit Investor

By:

Name:

Title:

Signature Page

Amendment No. 1 to Eighth Amended and Restated

Transfer and Administration Agreement


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

By:

Name:

Title:

LIBERTY STREET FUNDING LLC,
as a Conduit Investor

By:

/s/ Kevin J. Corrigan

Name:

Kevin J. Corrigan

Title:

Vice President

Signature Page

Amendment No. 1 to Eighth Amended and Restated

Transfer and Administration Agreement


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

By:

/s/ Roger Klepper

Name:

Roger Klepper

Title:

MANAGING DIRECTOR

By:

/s/ Konstantina Kourmpetis

Name:

Konstantina Kourmpetis

Title:

MANAGING DIRECTOR

ATLANTIC ASSET SECURITIZATION LLC,
as a Conduit Investor

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

By:

/s/ Roger Klepper

Name:

Roger Klepper

Title:

MANAGING DIRECTOR

By:

/s/ Konstantina Kourmpetis

Name:

Konstantina Kourmpetis

Title:

MANAGING DIRECTOR

Signature Page

Amendment No. 1 to Eighth Amended and Restated

Transfer and Administration Agreement


THE TORONTO-DOMINION BANK, as an
Administrative Agent and as a Bank Investor

By:

/s/ Luna Mills

Name:

Luna Mills

Title:

Managing Director

RELIANT TRUST,
as a Bank Investor

By:Computershare Trust Company of Canada, in
its capacity as trustee of Reliant Trust, by its
U.S. Financial Services Agent, The Toronto-
Dominion Bank

By:

/s/ Luna Mills

Name:

Luna Mills

Title:

Managing Director

GTA FUNDING LLC, as a Conduit Investor

By:

/s/ Kevin J. Corrigan

Name:

Kevin J. Corrigan

Title:

Vice president

Signature Page

Amendment No. 1 to Eighth Amended and Restated

Transfer and Administration Agreement


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

By:

/s/ Janine Marsini

Name:

Janine Marsini

Title:

Authorized Signatory

By:

/s/ VERONICA L. GALLAGHER

Name:

VERONICA L. GALLAGHER

Title:

Authorized Signatory

THUNDER BAY FUNDING , LLC,
as a Conduit Investor

By:

/s/ Janine Marsini

Name:

Janine Marsini

Title:

Authorized Signatory

Signature Page

Amendment No. 1 to Eighth Amended and Restated

Transfer and Administration Agreement


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

By:

/s/ Eric Bruno

Name:

Eric Bruno

Title:

Senior Vice President

Signature Page

Amendment No. 1 to Eighth Amended and Restated

Transfer and Administration Agreement


MUFG BANK, LTD. f/k/a THE BANK OF
TOKYO-MITSUBISHI UFJ, LTD., NEW YORK
BRANCH, as an Administrative Agent

By:

/s/ Eric Williams

Name:

Eric Williams

Title:

Managing Director

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

By:

/s/ Eric Williams

Name:

Eric Williams

Title:

Managing Director

VICTORY RECEIVABLES CORPORATION,
as a Conduit Investor

By:

/s/ Kevin J. Corrigan

Name:

Kevin J. Corrigan

Title:

Vice President

Signature Page

Amendment No. 1 to Eighth Amended and Restated

Transfer and Administration Agreement


Exhibit 31.1

CERTIFICATION PURSUANT TO SECTION 302

OF THE SARBANES-OXLEY ACT OF 2002

I, Rice Powell, certify that:

1.

I have reviewed this report on Form 6-K of Fresenius Medical Care AG & Co. KGaA (the “Report”).

2.

Based on my knowledge, this Report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this Report;

3.

Based on my knowledge, the financial statements, and other financial information included in this Report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this Report;

4.

The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and we have:

a)

designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this Report is being prepared;

b)

designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c)

evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this Report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this Report based on such evaluation; and

d)

disclosed in this Report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.

The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent functions):

a)

all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b)

any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: November 2, 2021

By:

/s/ RICE POWELL

Rice Powell

Chief Executive Officer and Chairman of the Management Board of the General Partner


Exhibit 31.2

CERTIFICATION PURSUANT TO SECTION 302

OF THE SARBANES-OXLEY ACT OF 2002

I, Helen Giza, certify that:

1.

I have reviewed this report on Form 6-K of Fresenius Medical Care AG & Co. KGaA (the “Report”);

2.

Based on my knowledge, this Report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this Report;

3.

Based on my knowledge, the financial statements, and other financial information included in this Report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this Report;

4.

The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and we have:

a)

designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this Report is being prepared;

b)

designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c)

evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this Report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this Report based on such evaluation; and

d)

disclosed in this Report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.

The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent function):

a)

all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b)

any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: November 2, 2021

By:

/s/ HELEN GIZA

Helen Giza

Chief Financial Officer and member of the Management Board of the General Partner


Exhibit 32.1

CERTIFICATION PURSUANT TO

18 U.S.C.SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the report of Fresenius Medical Care AG & Co. KGaA (the “Company”) on Form 6-K furnished for the month of November 2021 containing its unaudited financial statements as of September 30, 2021 and for the nine-months periods ending September 30, 2021 and 2020, as submitted to the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned, Rice Powell, Chief Executive Officer and Helen Giza, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that:

(1)

The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

(2)

The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company.

By:

/s/ RICE POWELL

Rice Powell

Chief Executive Officer and Chairman of the Management Board of the General Partner

November 2, 2021

By:

/s/ HELEN GIZA

Helen Giza

Chief Financial Officer and member of the Management Board of the General Partner

November 2, 2021