Underwriting Agreement
Exhibit 1.1
EXECUTION VERSION
Underwriting Agreement
June 10, 2014
WELLS FARGO SECURITIES, LLC
BARCLAYS CAPITAL INC.
As Representatives of the several Underwriters
c/o WELLS FARGO SECURITIES, LLC
550 South Tryon Street, 6th Floor
Charlotte, North Carolina 28202
Ladies and Gentlemen:
Introductory. DaVita HealthCare Partners Inc., a Delaware corporation (the “Company”), proposes to issue and sell to the several underwriters named in Schedule A hereto (the “Underwriters”), for whom you (the “Representatives”) are acting as representatives, $1,750,000,000 aggregate principal amount of its 5.125% Senior Notes due 2024 (the “Notes”). The Notes will be guaranteed on a senior unsecured basis (collectively, the “Guarantees”) by each of the subsidiary guarantors named in Schedule B-1 hereto (the “Guarantors”). The Notes and the Guarantees are collectively referred to herein as the “Securities.” The Notes and related Guarantees will be issued pursuant to an indenture dated as of June 13, 2014 (the “Indenture”), among the Company, the Guarantors and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”). The term Underwriters shall mean either the singular or plural as the context requires. The use of the neuter in this Underwriting Agreement (the “Agreement”) shall include the feminine and masculine wherever appropriate.
The Securities are being offered and sold by the Company in connection with the repayment of a portion of the existing senior secured credit agreement of the Company and its subsidiaries (the “Refinancing”) as described in the Disclosure Package (as hereinafter defined) and the Prospectus (as hereinafter defined).
This Agreement, the Securities and the Indenture are hereinafter sometimes referred to collectively as the “Transaction Documents.” The issuance and sale of the Securities and the Refinancing are collectively referred to as the “Transactions.”
SECTION 1. Representations and Warranties. The Company and the Guarantors, jointly and severally, represent and warrant to each of the Underwriters as of the date hereof that:
(a) The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (File No. 333-196630), which contains a base prospectus (the “Base Prospectus”), to be used in connection with the public offering and sale of the Securities. Such registration statement, as amended, including the financial statements, exhibits and schedules thereto, at each time of effectiveness under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (collectively, the “Securities Act”), including any required information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430B or 430C under the Securities Act or the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange Act”), is called the “Registration Statement.” Any preliminary prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b), together with the Base Prospectus, is hereafter called a “Preliminary Prospectus.” The term “Prospectus” shall mean the final prospectus supplement relating to the Securities dated June 10, 2014 that is first filed pursuant to Rule 424(b) after the date and time that this Agreement is executed and
delivered by the parties hereto, including the Base Prospectus. Any reference herein to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act; any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Exchange Act, and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement.
(b) Compliance with Registration Requirements. The Company meets the requirements for use of Form S-3 under the Securities Act. The Registration Statement has become effective upon filing with the Commission under the Securities Act. No stop order suspending the effectiveness of the Registration Statement is in effect, the Commission has not issued any order or notice preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus and no proceedings for such purpose or pursuant to Section 8A of the Securities Act have been instituted or are pending or, to the best knowledge of the Company and the Guarantors, are contemplated or threatened by the Commission.
Each Preliminary Prospectus and the Prospectus when filed complied in all material respects with the Securities Act. Each of the Registration Statement and any post-effective amendment thereto, at each time of effectiveness, at the date hereof and at the Closing Date (as defined herein), complied and will comply in all material respects with the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. The Prospectus, as amended or supplemented, as of its date, at the time of any filing pursuant to Rule 424(b) and at the Closing Date, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties set forth in the two immediately preceding sentences do not apply to statements in or omissions from the Registration Statement or any post-effective amendment thereto, or the Preliminary Prospectus or the Prospectus, or any amendments or supplements thereto, made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by the Representatives expressly for use therein, it being understood and agreed that the only such information furnished by the Representatives consists of the information described as such in Section 8(b) hereof.
The documents incorporated by reference in the Registration Statement, the Disclosure Package (as defined herein) and the Prospectus, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act. Any further documents so filed and incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus or any further amendment or supplement thereto, when such documents are filed with the Commission will conform in all material respects to the requirements of the Exchange Act. All documents incorporated or deemed to be incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, as of their respective filing dates, when taken together with the other information in the Disclosure Package, at the Applicable Time and, when taken together with the other information in the Prospectus, at the Closing Date, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
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(c) Well-Known Seasoned Issuer. (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) of the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 of the Securities Act, and (iv) at the Applicable Time (with such date and time being used as the determination date for purposes of this clause (iv)), the Company was and is a “well-known seasoned issuer” as defined in Rule 405 of the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the Closing Date; the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form; and the Company has not otherwise ceased to be eligible to use the automatic shelf registration form.
(d) Disclosure Package. The term “Disclosure Package” shall mean (i) the Base Prospectus together with the Preliminary Prospectus Supplement dated June 10, 2014, as amended or supplemented as of the Applicable Time (as defined below), (ii) the issuer free writing prospectuses as defined in Rule 433 of the Securities Act (each, an “Issuer Free Writing Prospectus”), if any, identified in Schedule C hereto, (iii) any other free writing prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package and (iv) the Final Term Sheet (as defined herein), which also shall be identified in Schedule C hereto. As of 3:17 p.m. (Eastern time) on the date of this Agreement (the “Applicable Time”), the Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(b) hereof.
(e) Company Not Ineligible Issuer. (i) At the earliest time after the filing of the Registration Statement relating to the Securities that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act) and (ii) as of the Applicable Time (with such date being used as the determination date for purposes of this clause (ii)), the Company was not and is not an “ineligible issuer” (as defined in Rule 405 of the Securities Act), without taking account of any determination by the Commission pursuant to Rule 405 of the Securities Act that it is not necessary that the Company be considered an “ineligible issuer.”
(f) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the offering of Securities under this Agreement or until any earlier date that the Company notified or notifies the Representatives as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement, the Disclosure Package or the Prospectus. If at any time following issuance of an Issuer Free Writing
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Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Disclosure Package or the Prospectus, the Company has promptly notified or will promptly notify the Representatives and has promptly amended or supplemented or will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict. Any Issuer Free Writing Prospectus, when taken together with the Disclosure Package, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The foregoing three sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter through the Representatives consists of the information described as such in Section 8(b) hereof.
(g) Distribution of Offering Material by the Company and the Guarantors. Neither the Company nor any Guarantor has distributed or will distribute, prior to the later of the Closing Date and the completion of the Underwriters’ distribution of the Notes, any offering material in connection with the offering and sale of the Securities other than the Preliminary Prospectus, the Prospectus and any Issuer Free Writing Prospectus reviewed and consented to by the Representatives or the Registration Statement.
(h) Financial Statements. The historical financial statements of the Company and its subsidiaries, and the related notes thereto included or incorporated by reference in each of the Registration Statement, the Disclosure Package and the Prospectus present fairly in all material respects the financial position of the Company and its subsidiaries, as of the dates indicated and the results of operations and the changes in cash flows for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods covered thereby; the other historical financial information relating to the Company and its subsidiaries incorporated by reference in each of the Registration Statement, the Disclosure Package and the Prospectus under the heading “Selected Financial Data” in (i) the Company’s annual report on Form 10-K for the fiscal year ended December 31, 2013 and (ii) the Company’s quarterly report on Form 10-Q for the fiscal quarter ended March 31, 2014, respectively, present fairly the information shown thereby in all material respects. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus present fairly the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(i) No Material Adverse Change. Since the date of the most recent financial statements of the Company and its subsidiaries included or incorporated by reference in each of the Registration Statement, the Disclosure Package and the Prospectus, (i) there has not been (w) any change in the long-term debt of the Company or any of its subsidiaries, except for changes in the long-term debt in the ordinary course of business, (x) any issuance of any capital stock of the Company or any of the Guarantors, except for the issuance of options and shares of common stock under existing officer, director or employee stock option, stock purchase or similar benefit plans, upon the exercise of outstanding options or the issuance of capital stock of any subsidiary to the Company or one or more of its subsidiaries, (y) any dividend or distribution of any kind declared, set aside for payment, paid or made by the Company on any class of capital stock or (z) any material adverse change, or any development involving a prospective material adverse
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change, in or affecting the business, properties, financial position, results of operations or prospects of the Company and its subsidiaries taken as a whole (collectively, a “Material Adverse Change”); (ii) neither the Company nor any of its subsidiaries has incurred any liability or obligation, direct or contingent, that is material to the Company and its subsidiaries taken as a whole; and (iii) neither the Company nor any of its subsidiaries has sustained any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, except in each case of clauses (i), (ii) and (iii), as otherwise disclosed in the Disclosure Package and the Prospectus.
(j) Organization and Good Standing. The Company and each Guarantor have been duly organized and are validly existing and in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to be so qualified or have such power or authority would not, individually or in the aggregate, have a material adverse effect on the business, properties, financial position, results of operations or prospects of the Company and its subsidiaries taken as a whole or on the performance by the Company and the Guarantors of their obligations under the Securities and the Guarantees (a “Material Adverse Effect”). The Company does not own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries listed in Schedules B-1 and B-2 to this Agreement. Schedule B-1 lists all of the Guarantors and Schedule B-2 lists all non-guarantor subsidiaries of the Company as of the date hereof and the Closing Date. The subsidiaries listed in Schedule B-3 to this Agreement are the only significant subsidiaries of the Company as defined in Rule 1-02 of Regulation S-X (the “Significant Subsidiaries”).
(k) Capitalization. The Company has an authorized, “As adjusted” capitalization after giving effect to the consummation of the Transactions as set forth in the Disclosure Package and the Prospectus under the heading “Capitalization”; and all the outstanding shares of capital stock or other equity interests of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable, and, except as otherwise described in the Disclosure Package and the Prospectus, or as described in Schedule B-1 or Schedule B-2, each of the subsidiaries of the Company is wholly-owned directly or indirectly by the Company, free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party.
(l) Due Authorization. Each of the Company and the Guarantors has full right, power and authority to execute and deliver the Transaction Documents and to perform its respective obligations hereunder and thereunder and to consummate the Transactions contemplated hereby.
(m) The Indenture. The Indenture has been duly authorized by the Company and the Guarantors and, at the Closing Date, will have been duly executed and delivered by the Company and the Guarantors, and (assuming the due authorization, execution and delivery thereof by the Trustee) constitutes a valid and legally binding agreement of the Company and each of the Guarantors enforceable against the Company and each of the Guarantors in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium of or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability (collectively, the “Enforceability Exceptions”). The Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended.
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(n) The Notes and the Guarantees. The Notes have been duly authorized by the Company and, when duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, subject to the Enforceability Exceptions; and the Guarantees have been duly authorized by each of the Guarantors, and, when the Securities have been duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, the Guarantees will be valid and legally binding obligations of each of the Guarantors, in each case enforceable against each of the Guarantors in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(o) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by the Company and each of the Guarantors.
(p) Descriptions of Certain Documents. The Transaction Documents conform, or on the Closing Date will conform, as the case may be, in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus.
(q) No Violation or Default. Neither the Company nor any of its subsidiaries is (i) in violation of its charter or by-laws or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, have a Material Adverse Effect.
(r) No Conflicts. The execution, delivery and performance by the Company and each of the Guarantors of each of the Transaction Documents to which each is a party, the issuance and sale of the Securities (including the Guarantees), and compliance by the Company and each of the Guarantors with the terms thereof will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Company or any of its subsidiaries or (iii) assuming compliance with all applicable state securities or “Blue Sky” laws and assuming the accuracy of the representations and warranties of the Underwriters in Section 3 hereof, result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach or violation that would not, individually or in the aggregate, have a Material Adverse Effect.
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(s) Government Reimbursement Programs. Except as described in the Disclosure Package and the Prospectus, all of the dialysis facilities operated by the Company and each of its subsidiaries are qualified for participation in all federal healthcare programs in which they participate, including the Medicare programs, the Medicaid programs and the TRICARE programs in which they participate (together with their respective intermediaries or carriers, the “Government Reimbursement Programs”) and are entitled to reimbursement under the Government Reimbursement Programs for services rendered to qualified beneficiaries, and comply in all material respects with the requirements of all Government Reimbursement Programs in which they participate or have participated, except for such failures to be qualified or to be entitled to reimbursement or to comply which could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Disclosure Package and the Prospectus, there is no pending or, to the knowledge of the Company or the Guarantors, threatened or contemplated proceeding or investigation by any of the Government Reimbursement Programs with respect to (i) the Company’s and each of the Company’s subsidiaries’ qualification or right to participate in any Government Reimbursement Program in which they participate or have participated, (ii) the compliance or non-compliance by the Company and each of the Company’s subsidiaries with the terms or provisions of any Government Reimbursement Program in which they participate or have participated or (iii) the right of the Company and each of the Company’s subsidiaries to receive or retain amounts received or due or to become due from any Government Reimbursement Program in which they participate or have participated, which proceeding or investigation, together with all other such proceedings and investigations, could reasonably be expected to, individually or in the aggregate (x) have a Material Adverse Effect or (y) result in consolidated net operating revenues for any (including any future) four fiscal quarter period of the Company constituting less than 95% of consolidated net operating revenues for the immediately preceding four fiscal quarter period of the Company. For purposes of this Agreement, “Medicaid” means any state-operated means-tested entitlement program under Title XIX of the Social Security Act that provides federal grants to states for medical assistance based on specific eligibility criteria, “Medicare” means that government-sponsored entitlement program under Title XVIII of the Social Security Act that provides for a health insurance system for eligible elderly and disabled persons including eligible persons with end-stage renal disease and “TRICARE” means the healthcare program established by the U.S. Department of Defense under Title 10, Subtitle A, Part II, Chapter 55 (10 U.S.C. § 1071 et seq.) for members of the military, military retirees, and their dependents, and includes the competitive selection of contractors to financially underwrite the delivery of healthcare services under the Civilian Health and Medical Program of the Uniformed Services.
(t) Compliance with Federal Healthcare Laws. None of Company, any of the Company’s subsidiaries or the HCP Affiliated Entities, or any of their respective officers, directors or managers has, on behalf of any of the Company or the Company’s subsidiaries, (A) committed any act that would cause any of them to incur a civil monetary penalty under 42 U.S.C. §1320a-7a or violated 42 U.S.C. §1320a-7b or knowingly or willfully violated any other of the federal statutes applicable to Government Reimbursement Programs or any regulations promulgated pursuant to such statutes or related state or local statutes or regulations, including but not limited to the following: (i) knowingly and willfully made or caused to be made a false statement or representation of a material fact in any applications for any benefit or payment; (ii) knowingly and willfully made or caused to be made any false statement or representation of a material fact for use in determining rights to any benefit or payment; (iii) knowingly and willfully failed to disclose knowledge by a claimant of the occurrence of any event affecting the initial or continued right to any benefit or payment on its own behalf or on behalf of another, with intent to secure such benefit or payment fraudulently; (iv) knowingly and willfully solicited or received or offered
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or paid any remuneration (including any kickback, bribe or rebate), directly or indirectly, overtly or covertly, in cash or in kind or offering to pay or soliciting to receive such remuneration (x) in return for referring an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part by Medicare, Medicaid, TRICARE or other applicable government payers, or (y) in return for purchasing, leasing or ordering or arranging for or recommending, or to induce, the purchasing, leasing or ordering of any good, facility, service or item for which payment may be made in whole or in part by Medicare, Medicaid, TRICARE or other applicable government payers, or (B) knowingly and willfully presented or caused to be presented a claim for a medical or other item or service that was not provided as claimed, or is for a medical or other item or service and the person knew or should have known the claim was false or fraudulent, except in the case of each of (A) and (B) as described in the Disclosure Package and the Prospectus or as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as described in the Disclosure Package and the Prospectus or as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, none of the Company or the Company’s subsidiaries has, nor have any of their respective officers, directors or managers, on behalf of the Company or the Company’s subsidiaries, (X) violated the Federal False Claims Act, 31 U.S.C. § 3729 et seq., including without limitation (i) knowingly presenting or causing to be presented to a government official a false claim for payment or approval, (ii) knowingly made, used or caused to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the government or (iii) conspired to defraud the government by getting a false or fraudulent claim paid; or (Y) violated 42 U.S.C. §1395nn or any regulations promulgated pursuant thereto (collectively, the “Stark Law”), including, without limitation, presenting or causing to be presented a claim under Medicare or Medicaid or billing any individual, third party payor, or other entity, for any “designated health service” (as defined in the Stark Law) payable by Medicare or Medicaid for a referral for the designated health service made by a physician that had (or whose immediate family member had) a financial relationship with the Company or the Company’s subsidiaries that did not meet a Stark Law exception. Except as individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect, the Company and each of the Company’s subsidiaries is in compliance with the privacy and security rules promulgated under the Health Insurance Portability and Accountability Act of 1996 found at 45 C.F.R. parts 160-164 (collectively, “HIPAA”) and the amendments to HIPAA made under the Health Information Technology for Economic and Clinical Health Act amendments to the American Recovery and Reinvestment Act of 2009. To the knowledge of the Company, none of the Company or the Company’s subsidiaries has violated 18 U.S.C. §1347 including, but not limited to, knowingly and willfully executing or attempting to execute a scheme or artifice by means of false or fraudulent pretenses (i) to defraud any health care benefit program, or (ii) to obtain, any money or property owned by, under the custody or control of, any health benefit program.
(u) Compliance with State Healthcare Laws. Except as disclosed in the Disclosure Package and the Prospectus, each of the Company and each of its subsidiaries has complied with and is in compliance with the requirements pertaining to risk-bearing organizations, including, without limitation, requirements set forth in California Health & Safety Code § 1375.4 and those promulgated by the California Department of Managed Health Care (the “RBO Requirements”), except as individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Disclosure Package and the Prospectus, there is no pending or, to the knowledge of the Company or the Guarantors, threatened or contemplated proceeding or investigation against any of the Company or its subsidiaries by any of state governmental authority with respect to RBO Requirements or other compliance with state healthcare laws. Except as individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect, each of the Company and its subsidiaries is in compliance with all state laws (i) regarding the privacy and security of health information and (ii) regarding corporate practice of medicine and fee splitting.
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(v) No Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Company and each of the Guarantors of each of the Transaction Documents to which each is a party, the issuance and sale of the Securities (including the Guarantees), and compliance by the Company and each of the Guarantors with the terms thereof and the consummation of the Transactions, except for such consents, approvals, authorizations, orders and registrations or qualifications (i) as may be required under applicable state securities laws in connection with the purchase and resale of the Securities by the Underwriters, (ii) as have been obtained and (iii) the failure of which to be obtained could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or materially adversely effect the ability of the Company to consummate the Transactions.
(w) Legal Proceedings. Except as described in the Disclosure Package and the Prospectus, there are no legal, governmental or regulatory investigations, actions, suits or proceedings pending to which the Company or any of its subsidiaries is or may be a party or to which any property of the Company or any of its subsidiaries is or may be the subject that, individually or in the aggregate, could reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect; and, to the best knowledge of each of the Company and the Guarantors, no such investigations, actions, suits or proceedings are threatened or contemplated by any governmental or regulatory authority or threatened by others.
(x) Independent Accountants. KPMG, LLP, who has certified certain financial statements of the Company and its subsidiaries is an independent registered public accounting firm with respect to the Company and its subsidiaries within the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act.
(y) Title to Real and Personal Property. The Company and its subsidiaries have good and marketable title in fee simple (with respect to real property) or good and marketable title (with respect to personal property) to, or have valid rights to lease or otherwise use, all items of real and personal property that are used in, or material to, the respective businesses of the Company and its subsidiaries, in each case free and clear of all liens, encumbrances, claims and defects and imperfections of title, except those that (i) do not materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries or (ii) could not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect.
(z) Title to Intellectual Property. The Company and its subsidiaries own or possess adequate rights to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses and know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) necessary for the conduct of their respective businesses, except where failure to have such rights could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and, to the knowledge of the Company and the Guarantors, (x) the conduct of their respective businesses will not conflict with or infringe any such rights of others and (y) neither the Company nor any of its subsidiaries has received any written notice of any claim of infringement of or conflict with any such rights of others, except, in the case of each of (x) and (y), to the extent such conflict or infringement or alleged conflict or infringement could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
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(aa) Investment Company Act. Neither the Company nor any of its subsidiaries is, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Prospectus none of them will be, an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder (collectively, “Investment Company Act”).
(bb) Taxes. The Company and its subsidiaries have paid all federal, state, local and foreign taxes and filed all tax returns required to be paid or filed through the date hereof, except where failure to pay such taxes or file such returns could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and except as otherwise disclosed in the Disclosure Package and the Prospectus, there is no tax deficiency that has been, or could reasonably be expected to be, asserted against the Company or any of its subsidiaries or any of their respective properties or assets, except as could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(cc) Licenses and Permits. The Company and its subsidiaries possess all licenses, certificates, permits and other authorizations (collectively “licenses”) issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses as described in the Disclosure Package and the Prospectus, except where the failure to possess or make the same would not, individually or in the aggregate, have a Material Adverse Effect; and except as described in the Disclosure Package and the Prospectus, neither the Company nor any of its subsidiaries has received notice of any revocation or modification of any such license or has any reason to believe that any such license will not be renewed in the ordinary course, except where such revocation or modification could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(dd) No Labor Disputes. To the knowledge of the Company and the Guarantors, (i) no labor dispute with employees of the Company or any of its subsidiaries exists, (ii) no significant collective bargaining organizing activities are taking place with respect to the Company or any of its subsidiaries and (iii) no such significant collective bargaining organizing activities are contemplated or threatened, except, in the case of each of (i), (ii) and (iii), where such disputes and collective bargaining organizing activities could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(ee) Compliance with Environmental Laws. The Company and its subsidiaries (i) are in compliance with any and all applicable Environmental Laws (as defined below); or (ii) have not received written notice of any actual or potential liability for the investigation or remediation of any disposal or release of Hazardous Materials (as defined below), or action, suit, claim, demand, notice of non-compliance or violation, and is not a party to any order, decree or agreement, asserting any liability or requiring any action under any Environmental Law, except in any such case for any such failure to comply with, or failure to receive required permits, licenses or approvals, or liability, as would not, individually or in the aggregate, have a Material Adverse Effect. To the knowledge of the Company and the Guarantors there are no events, occurrences, conditions or activities which could reasonably be expected to result in any non-compliance with or liability under Environmental Law except as would not, individually or in the aggregate, have
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a Material Adverse Effect. Neither the Company nor any of its subsidiaries is conducting any investigation, response, remedial or other corrective action under any Environmental Law at any location except for any such actions which, individually or in the aggregate, would not have a Material Adverse Effect. For purposes of this Agreement, “Environmental Laws” means the common law and all applicable federal, provincial, state, local and foreign laws, rules, regulations, codes, ordinances, orders, decrees, judgments, decisions or injunctions issued, promulgated, approved or entered thereunder, relating to pollution or protection of public or employee health and safety or the environment, including, without limitation, laws relating to (i) emissions, discharges, releases or threatened releases of Hazardous Materials into the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata and natural resources such as wetlands, flora and fauna), (ii) the manufacture, processing, distribution, use, generation, treatment, storage, disposal, transport, handling or recycling of Hazardous Materials, (iii) zoning, facility siting, environmental impact assessment or review, or land use and (iv) underground and aboveground storage tanks and related piping, and emissions, discharges, releases or threatened releases therefrom, and “Hazardous Materials” means any substance, material, pollutant, contaminant, chemical, constituent or waste, including without limitation petroleum and petroleum products and human and biological waste or product, subject to regulation under or which could give rise to liability under any Environmental Law.
(ff) Compliance with ERISA. Each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), that is maintained, administered or contributed to by the Company or any of its subsidiaries for employees or former employees of the Company and its subsidiaries has been maintained in compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Internal Revenue Code of 1986, as amended (the “Code”), except where the failure to so maintain such plans could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any such plan excluding transactions effected pursuant to a statutory or administrative exemption, except such transactions as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; for each pension plan, within the meaning of Section 3(2) of the ERISA that is maintained, administered or contributed to by the Company or any of its affiliates, and that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated funding deficiency” as defined in Section 412 of the Code has been incurred, whether or not waived, except where such deficiency could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and for each such pension plan the present value of all benefits accrued under such pension plan does not exceed the fair market value of the assets of each such plan, determined using reasonable actuarial assumptions, by an amount that could individually or in the aggregate, have a Material Adverse Effect if such pension plans were terminated.
(gg) Disclosure Controls. The Company and its subsidiaries maintain an effective system of “disclosure controls and procedures” (as defined in Rule 13a-15(e) under the Exchange Act). The Company and its subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.
(hh) Accounting Controls. The Company and its subsidiaries maintain systems of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally
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accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences and (v) the interactive data in eXtensible Business Reporting Language included or incorporated by reference in each of the Registration Statement, the Disclosure Package and the Prospectus has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(ii) No Material Weakness in Internal Controls. Except as disclosed in the Disclosure Package and the Prospectus, or in any document incorporated by reference therein, since the end of the Company’s most recent fiscal year, there has been (i) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (ii) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
(jj) Insurance. The Company and its subsidiaries have insurance covering their respective properties, operations, personnel and businesses, including business interruption insurance and medical liability insurance, which insurance is in amounts and insures against such losses and risks as, in the opinion of management of the Company, are adequate to protect the Company and its subsidiaries and their respective businesses, except where failure to maintain such insurance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and neither the Company nor any of its subsidiaries has (i) received notice from any insurer or agent of such insurer that capital improvements or other expenditures are required or necessary to be made in order to continue such insurance or (ii) any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage at reasonable cost from similar insurers as may be necessary to continue its business, except, in the case of clause (i) and (ii) above, as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(kk) No Unlawful Contributions or Other Payments. (a) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee, affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries has (i) used any corporate funds for unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the FCPA or the UK Bribery Act; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment, and (b) the Company, its subsidiaries and, to the knowledge of the Company, its affiliates have conducted their business in compliance with the FCPA and the UK Bribery Act and have instituted, maintain and enforce policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith. “FCPA” means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder. “UK Bribery Act” means the Bribery Act of 2010 enacted in the United Kingdom, and the notes and guidance thereunder.
(ll) Solvency. On and immediately after the Closing Date, and after giving effect to the issuance of the Notes and the Guarantees and the use of proceeds therefrom as described in the Disclosure Package and the Prospectus, the Company and each of the Guarantors will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to any person on a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of such person is not less than the total amount required to pay the liabilities of such
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person on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) such person is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Notes and the Guarantees as contemplated by this Agreement, the Disclosure Package and the Prospectus and the use of proceeds therefrom as described in the Disclosure Package and the Prospectus, such person is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) such person is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such person is engaged; and (v) such person is not a defendant in any civil action that would result in a judgment that such person is or would become unable to satisfy.
(mm) No Stabilization. Neither the Company nor any of the Guarantors has taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities.
(nn) Margin Rules. Neither the issuance, sale and delivery of the Securities nor the application of the proceeds thereof by the Company as described in the Disclosure Package and the Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System or any other regulation of such Board of Governors.
(oo) Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in the Disclosure Package and the Prospectus has been made without a reasonable basis for such statement.
(pp) Statistical and Market Data. To the knowledge of the Company and each of the Guarantors the statistical and market-related data included in the Disclosure Package and the Prospectus is based on or derived from sources that are reliable and accurate in all material respects.
(qq) Material Contracts. There is no contract, agreement or other document to which the Company or any subsidiary of the Company is a party which is required to be filed as an exhibit to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2013 or any subsequent Exchange Act filings that has not been so filed as required.
(rr) Sarbanes-Oxley Compliance. There is and has been no failure on the part of the Company and any of the Company’s directors or officers, in their capacities as such, to comply in any material respect with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated thereunder.
(ss) No Conflict with Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions , the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and, to the knowledge of the Company, no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or threatened.
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(tt) No Conflict with Sanctions Laws. None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is currently subject to any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of Treasury’s Office of Foreign Assets Control, the United Nations Security Council, the European Union, Her Majesty’s Treasury, the Office of the Superintendent of Financial Institutions or other relevant sanctions authority (collectively, “Sanctions”), and none of the Company or any of its subsidiaries is located, organized or resident in a country or territory that is the subject of Sanctions; and the Company will not, directly or indirectly, use the proceeds of the sale of the Securities, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to Sanctions or located in any country or territory that is the subject of any Sanctions.
Any certificate signed by an officer of the Company or any Guarantor and delivered to the Representatives or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Company or any Guarantor to each Underwriter as to the matters set forth therein.
SECTION 2. Purchase and Sale. The Company agrees to issue and sell to the several Underwriters the Notes upon the terms herein set forth and, on the basis of the representations, warranties and agreements and upon the terms but subject to the conditions herein set forth, the Underwriters agree, severally and not jointly, to purchase from the Company the respective aggregate principal amount of Notes set forth opposite their names on Schedule A. The purchase price per Note to be paid by the several Underwriters to the Company shall be equal to 98.750% of the principal amount thereof.
SECTION 3. Delivery and Payment; Representations and Warranties and Covenants of the Underwriters.
(a) Delivery of certificates for the Securities to be purchased by the Underwriters and payment therefor shall be made at the offices of Cahill Gordon & Reindel LLP, 80 Pine Street, New York, NY 10005 (or such other place as may be agreed to by the Company and the Representatives) at 9:00 a.m. New York time, on June 13, 2014, or such other time and date as may be agreed to by the Company and the Representatives (the time and date of such closing are called the “Closing Date”). Delivery of the Securities shall be made through the facilities of The Depository Trust Company (“DTC”) unless the Representatives shall otherwise instruct.
(b) Public Offering of the Notes. The Representatives hereby advise the Company that the Underwriters intend to offer for sale to the public, as described in the Disclosure Package and the Prospectus, their respective portions of the Notes as soon after this Agreement has been executed as the Representatives, in their sole judgment, have determined is advisable and practicable.
(c) Payment for the Notes. Payment for the Notes shall be made on the Closing Date by wire transfer of immediately available funds to the order of the Company.
It is understood that the Representatives have been authorized, for their own account and the account of the several Underwriters, to accept delivery of and receipt for, and make payment of the purchase price for, the Notes. Wells Fargo Securities, LLC (“WFS”), individually and not as the Representative of the Underwriters, may (but shall not be obligated to) make payment for any Notes to be purchased by any Underwriter whose funds shall not have been received by the Representatives by the Closing Date for the account of such Underwriter, but any such payment shall not relieve such Underwriter from any of its obligations under this Agreement.
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(d) Delivery of the Notes. Delivery of one or more global notes (collectively, the “Global Note”) representing the Notes shall be made to a nominee of DTC or to the Trustee, acting as custodian for DTC, as applicable. Time shall be of the essence, and delivery at the time and place specified in this Agreement is a further condition to the obligations of the Underwriters.
(e) Delivery of Prospectus to the Underwriters. Not later than 10:00 a.m. on the second business day following the date the Notes are first released by the Underwriters for sale to the public, the Company shall deliver or cause to be delivered, copies of the Prospectus in such quantities and at such places as the Representatives shall reasonably request.
SECTION 4. Covenants. The Company and the Guarantors, jointly and severally, covenant and agree with each of the Underwriters as follows:
(a) Representatives’ Review of Proposed Amendments and Supplements. During the period beginning at the Applicable Time and ending on the later of the Closing Date or such date, as in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales by an Underwriter or dealer, including in circumstances where such requirement may be satisfied pursuant to Rule 172 (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement, the Disclosure Package or the Prospectus, the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement, and the Company shall not file or use any such proposed amendment or supplement to which the Representatives reasonably object.
(b) Securities Act Compliance. After the date of this Agreement and during the Prospectus Delivery Period, the Company shall promptly advise the Representatives in writing (i) when the Registration Statement, if not effective at the Applicable Time, shall have become effective, (ii) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (iii) of the time and date of any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus, (iv) of the time and date that any post-effective amendment to the Registration Statement becomes effective, and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order or notice preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus, or of any receipt by the Company of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or of the threatening or initiation of any proceedings for any of such purposes (including any notice or order pursuant to Section 8A or Rule 401(g)(2) of the Securities Act). The Company shall use commercially reasonable efforts to prevent the issuance of any such stop order or notice of prevention or suspension of such use. If the Commission shall enter any such stop order or issue any such notice at any time, the Company will use commercially reasonable efforts to obtain the lifting or reversal of such order or notice at the earliest possible moment, or, subject to Section 4(a), will file an amendment to the Registration Statement or will file a new registration statement and use its best efforts to have such amendment or new registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b) and 430B, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, and will use commercially reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) were received in a timely manner by the Commission.
(c) Exchange Act Compliance. During the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission and the New York Stock Exchange pursuant to Section 13, 14 or 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
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(d) Final Term Sheet. The Company will prepare a final term sheet in a form approved by the Representatives, and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such rule (such term sheet, the “Final Term Sheet”).
(e) Permitted Free Writing Prospectuses. The Company represents that it has not made, and agrees that, unless it obtains the prior written consent of the Representatives, it will not make, any offer relating to the Notes that constitutes or would constitute an Issuer Free Writing Prospectus or that otherwise constitutes or would constitute a “free writing prospectus” (as defined in Rule 405 of the Securities Act) or a portion thereof required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Securities Act; provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule C hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. The Company consents to the use by any Underwriter of a free writing prospectus that (a) is not an “issuer free writing prospectus” as defined in Rule 433, or (b) contains only (1) information describing the preliminary terms of the Securities or their offering, (2) information that describes the final terms of the Securities or their offering and that is included in the Final Term Sheet of the Company contemplated in Section 4(d) hereof, (3) information describing the Company that is included in the Disclosure Package or (3) information permitted under Rule 134 under the Securities Act; provided that each Underwriter severally covenants with the Company not to take any action without the Company’s consent which consent shall be confirmed in writing that would result in the Company being required to file with the Commission under Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of such Underwriter.
(f) Amendments and Supplements to the Registration Statement, Disclosure Package and Prospectus and Other Securities Act Matters. If, during the Prospectus Delivery Period, any event or development shall occur or condition exist as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made or then prevailing, as the case may be, not misleading, or if it shall be necessary to amend or supplement the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, in order to make the statements therein, in the light of the circumstances under which they were made or then prevailing, as the case may be, not misleading, or if in the opinion of the Company or the Representatives it is otherwise necessary to amend or supplement the Registration Statement, the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, or to file a new registration statement containing the Prospectus, in order to comply with law, including in connection with the delivery of the Prospectus, the Company agrees to (i) notify the Representatives of any such event or condition and (ii) promptly prepare (subject to Section 4(a)
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and 4(e) hereof), file with the Commission (and use its best efforts to have any amendment to the Registration Statement or any new registration statement to be declared effective) and furnish at its own expense to the Underwriters and to dealers, amendments or supplements to the Registration Statement, the Disclosure Package or the Prospectus, or any new registration statement, necessary in order to make the statements in the Disclosure Package or the Prospectus as so amended or supplemented, in the light of the circumstances under which they were made or then prevailing, as the case may be, not misleading or so that the Registration Statement, the Disclosure Package or the Prospectus, as amended or supplemented, will comply with law.
(g) Copies of Any Amendments and Supplements to the Prospectus. The Company agrees to furnish to the Representatives, without charge, during the Prospectus Delivery Period, as many copies of the Prospectus and any amendments and supplements thereto (including any documents incorporated or deemed incorporated by reference therein) and the Disclosure Package as the Representatives may reasonably request in writing.
(h) Copies of the Registration Statements and the Prospectus. The Company will furnish to the Representatives and counsel for the Underwriters signed copies of the Registration Statement and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and, during the Prospectus Delivery Period, as many copies of each Preliminary Prospectus, the Prospectus and any supplement thereto and the Disclosure Package as the Representatives may reasonably request in writing.
(i) Blue Sky Compliance. The Company and the Guarantors shall cooperate with the Representatives and counsel for the Underwriters to qualify or register the Securities for sale under (or obtain exemptions from the application of) the state securities or blue sky laws or Canadian provincial securities laws or other foreign laws of those jurisdictions designated by the Representatives and consented to by the Company, and the Company and the Guarantors shall comply in all material respects with such laws and shall continue such qualifications, registrations and exemptions in effect so long as required for the distribution of the Securities. Neither the Company nor any Guarantor shall be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) take any action that would subject it to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company and the Guarantors will advise the Representatives promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company and the Guarantors shall use their best efforts to obtain the withdrawal thereof at the earliest possible moment.
(j) Use of Proceeds. The Company shall apply the net proceeds from the sale of the Securities sold by it in the manner described under the caption “Use of Proceeds” in each of the Disclosure Package and the Prospectus.
(k) Agreement Not to Offer to Sell Additional Securities. During the period of 30 days following the date of this Agreement, the Company will not, without the prior written consent of WFS (which consent may be withheld at the sole discretion of WFS), directly or indirectly, sell, offer, contract or grant any option to sell, pledge or transfer, or otherwise dispose of, or announce the offering of, any debt securities of the Company or securities exchangeable for or
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convertible into debt securities of the Company in each case that are substantially similar to the Securities (other than as contemplated by this Agreement) (which, for the avoidance of doubt, does not include entering into or borrowings under the senior secured credit facility to be entered into by the Company as disclosed in the Disclosure Package and Prospectus).
(l) DTC. The Company shall use commercially reasonable efforts to obtain the approval of DTC to permit the Notes to be eligible for “book-entry” transfer and settlement through the facilities of DTC, and agrees to comply with all of its agreements set forth in the representation letters of the Company to DTC relating to the approval of the Notes by DTC for “book-entry” transfer.
(m) Earnings Statement. As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement (which need not be audited) covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the “effective date” (as defined in Rule 158 under the Securities Act) of the Registration Statement.
(n) Periodic Reporting Obligations. During the Prospectus Delivery Period the Company shall file, on a timely basis, with the Commission all reports and documents required to be filed under the Exchange Act.
(o) Filing Fees. The Company agrees to pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act.
(p) Compliance with Sarbanes-Oxley Act. During the Prospectus Delivery Period, the Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes-Oxley Act, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes-Oxley Act.
(q) Future Reports to the Representatives. During the Prospectus Delivery Period, the Company will furnish to the Representatives (i) to the extent not available on the Commission’s Next-Generation EDGAR filing system, as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholders’ equity and cash flows for the year then ended and the opinion thereon of the Company’s independent public or certified public accountants; and (ii) to the extent not available on the Commission’s Next-Generation EDGAR filing system, as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other report filed by the Company with the Commission, FINRA or any securities exchange.
(r) No Manipulation of Price. The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any securities of the Company to facilitate the sale or resale of the Securities.
(s) Investment Limitation. The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Notes in such a manner as would require the Company or any of its subsidiaries to register as an investment company under the Investment Company Act.
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(t) Notice of Inability to Use Automatic Shelf Registration Statement Form. If at any time during the Prospectus Delivery Period, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representatives, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Securities, in a form satisfactory to the Representatives, (iii) use its best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Notes to continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become ineligible. References herein to the Registration Statement shall include such new registration statement or post-effective amendment, as the case may be.
SECTION 5. Payment of Expenses. The Company and the Guarantors, jointly and severally, agree to pay all costs, fees and expenses incurred in connection with the performance of their obligations hereunder and in connection with the transactions contemplated hereby, including without limitation (i) all expenses incident to the issuance and delivery of the Securities (including all printing and engraving costs), (ii) all necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the Securities to the Underwriters, (iii) all fees and expenses of the Company’s and the Guarantors’ counsel, independent public or certified public accountants and other advisors, (iv) all costs and expenses incurred in connection with the preparation, printing, filing, shipping and distribution of the Registration Statement (including financial statements, exhibits, schedules, consents and certificates of experts), each Issuer Free Writing Prospectus, each Preliminary Prospectus and the Prospectus, and all amendments and supplements thereto, and the mailing and delivering of copies thereof to the Underwriters and dealers, this Agreement, the Indenture, the DTC blanket letter of representations and riders thereto and the Notes and Guarantees, (v) all filing fees, attorneys’ fees and expenses incurred by the Company, the Guarantors or the Underwriters in connection with qualifying or registering (or obtaining exemptions from the qualification or registration of) all or any part of the Securities for offer and sale under the securities laws of the several states of the United States, the provinces of Canada or other jurisdictions designated by the Underwriters (including, without limitation, the cost of preparing, printing and mailing preliminary and final blue sky or legal investment memoranda), (vi) the fees and expenses of the Trustee, including the reasonable fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vii) any fees payable in connection with the rating of the Securities with the ratings agencies, (viii) the filing fees for FINRA’s review of the offering of the Securities, and the reasonable fees and disbursements of counsel to the Underwriters in connection with compliance with FINRA’s rules and regulations, (ix) all fees and expenses of the Company and the Guarantors in connection with approval of the Securities by DTC for “book-entry” transfer, and the performance by the Company and the Guarantors of their respective other obligations under this Agreement, (x) all expenses incident to the “road show” for the offering of the Securities, including one half of the cost of any chartered airplane or other transportation, (xi) all other fees, costs and expenses referred to in Item 14 of Part II of the Registration Statement, and (xii) all other costs and expenses incident to the performance of their obligations hereunder which are not otherwise specifically provided for in this Section 5. It is understood, however, that, except as provided in this Section 5, Section 7, Section 8 and Section 11 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and expenses of their counsel.
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SECTION 6. Conditions to the Obligations of the Underwriters. The obligations of the Underwriters hereunder shall be subject, in their discretion, to the condition that all representations and warranties of the Company and each Guarantor herein are true and correct at and as of the date hereof and the Closing Date, the condition that the Company and each Guarantor shall have performed all of their respective obligations hereunder theretofore to be performed, and the following additional conditions:
(a) Accountants’ Comfort Letter. On the date hereof, the Underwriters shall have received from KPMG, LLP, independent public accountants for the Company, a letter dated the date hereof addressed to the Underwriters, in form and substance satisfactory to the Representatives, covering certain financial information included in or incorporated by reference in the Disclosure Package and other customary information included in accountant’s comfort letters to underwriters.
(b) Compliance with Registration Requirements; No Stop Order. For the period from and after effectiveness of this Agreement and prior to the Closing Date:
(i) the Company shall have filed the Prospectus with the Commission (including the information required by Rules 430A, 430B and 430C under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act;
(ii) the Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time periods prescribed for such filings under such Rule 433;
(iii) no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement, shall be in effect and no proceedings for such purpose or pursuant to Section 8A of the Securities Act shall have been instituted or threatened by the Commission; and the Company shall not have received from the Commission any notice pursuant to Section 3(a)(62) under the Exchange Act objecting to use of the automatic shelf registration statement form; and
(iv) FINRA shall have advised the Representatives in writing that it has no objection to the fairness and reasonableness of the underwriting and other terms and arrangements related to the offering of the Securities.
(c) No Material Adverse Change or Ratings Agency Change. For the period from and after the date of this Agreement and prior to the Closing Date:
(i) in the judgment of the Representatives there shall not have occurred any Material Adverse Change;
(ii) there shall not have been any change or decrease specified in the letter or letters referred to in paragraph (a) of this Section 6 which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Securities as contemplated by this Agreement, the Disclosure Package and the Prospectus; and
(iii) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded
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the Company or any of its subsidiaries by any “nationally recognized statistical rating organization” (as such term is defined in Section 3(a)(62) of the Exchange Act), and no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, any such rating.
(d) Opinion of Counsel for the Company. On the Closing Date, the Underwriters shall have received the opinion of (i) Sidley Austin LLP, counsel for the Company, dated as of such Closing Date, the form of which is attached as Exhibit A and (ii) Kim M. Rivera, Chief Legal Officer and Corporate Secretary, dated as of such Closing Date, the form of which is attached as Exhibit B.
(e) Opinion of Counsel for the Underwriters. On the Closing Date, the Underwriters shall have received the favorable opinion of (i) Cahill Gordon & Reindel LLP, counsel for the Underwriters, dated as of such Closing Date, and (ii) Winston and Strawn, LLP, special regulatory counsel to the Underwriters, dated as of such Closing Date, in each case in form and substance satisfactory to, and addressed to, the Underwriters, with respect to the issuance and sale of the Notes, the Registration Statement, the Prospectus (together with any supplement thereto), the Disclosure Package and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(f) Officers’ Certificate. On the Closing Date, the Representatives shall have received a written certificate executed by an executive officer of the Company reasonably satisfactory to the Representatives, dated as of the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, any Issuer Free Writing Prospectus and any amendment or supplement thereto and this Agreement, to the effect set forth in subsections (b)(i), (ii) and (iii) and (c)(iii) of this Section 6, and further to the effect that:
(i) for the period from and after the date of this Agreement and prior to the Closing Date, there has not occurred any Material Adverse Change;
(ii) the representations and warranties of the Company and the Guarantors set forth in Section 1 of this Agreement are true and correct in all material respects, except that such materiality qualifier shall not apply to any representation or warranty that is by its terms qualified as to materiality, on and as of the Closing Date with the same force and effect as though expressly made on and as of the Closing Date; and
(iii) the Company and the Guarantors have complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
(g) Bring-down Comfort Letter. On the Closing Date, the Underwriters shall have received from KPMG, LLP, independent public accountants for the Company, a letter dated such date, in form and substance satisfactory to the Representatives, to the effect that they reaffirm the statements made in the letter furnished by them pursuant to subsection (a) of this Section 6, except that (i) it shall cover certain financial information included in or incorporated by reference to the Prospectus and any amendment or supplement thereto customarily included in accountant’s comfort letters to underwriters and (ii) the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the Closing Date, as the case may be.
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(h) [Reserved]
(i) Closing Documents. At the Closing Date, the Company and the Guarantors shall have furnished counsel for the Company, the Guarantors or the Underwriters, as the case may be, such documents as they reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties or fulfillment of any of the conditions herein contained.
If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representatives by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Section 5, Section 7, Section 8, Section 9, Section 13 and Section 17 shall at all times be effective and shall survive such termination.
SECTION 7. Reimbursement of Underwriters’ Expenses. If this Agreement is terminated by the Representatives pursuant to Section 6, Section 10 or Section 11, or if the sale to the Underwriters of the Notes on the Closing Date is not consummated because of any refusal, inability or failure on the part of the Company or any Guarantor to perform any agreement herein or to comply with any provision hereof, the Company and the Guarantors, jointly and severally, agree to reimburse the Representatives and the other Underwriters (or such Underwriters as have terminated this Agreement with respect to themselves), severally, upon demand for all out-of-pocket expenses that shall have been reasonably incurred by the Representatives and the Underwriters in connection with the proposed purchase and the offering and sale of the Securities, including but not limited to fees and disbursements of counsel, printing expenses, travel expenses, postage, facsimile and telephone charges.
SECTION 8. Indemnification.
(a) Indemnification of the Underwriters. The Company and each of the Guarantors jointly and severally agree to indemnify and hold harmless each Underwriter, its affiliates which offer Securities, directors, officers, employees and agents and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages, liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred) and expenses, joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B or 430C under the Securities Act, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and to reimburse each Underwriter, its affiliates which offer Securities, officers, directors, employees, agents and each such controlling person for any and all expenses (including, subject to Section 8(c), the fees and disbursements of counsel chosen by WFS) as such expenses are reasonably incurred by such Underwriter, or its affiliates which offer Securities, officers, directors, employees and agents or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability or expense; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, arising out of, or based upon, any untrue statement or omission or alleged untrue statement or alleged omission made in reliance upon and in conformity
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with any information relating to any Underwriter furnished to the Company in writing by the Representatives expressly for use in the Registration Statement, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto), it being understood that the only information provided by any Underwriter is referenced in Section 8(b). The indemnity agreement set forth in this Section 8(a) shall be in addition to any liabilities that the Company may otherwise have.
(b) Indemnification of the Company and the Guarantors. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company and each of the Guarantors and each of their respective directors and each of their respective officers who signed the Registration Statement and each person, if any, who controls the Company or any of the Guarantors within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages, liabilities or expenses that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or alleged omission of a material fact contained in the Registration Statement (or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B or 430C under the Securities Act), any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use therein; and to reimburse the Company and the Guarantors, or any such director, officer or controlling person for any legal and other expense reasonably incurred by the Company and the Guarantors, or any such director, officer or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action. The Company and the Guarantors hereby acknowledge that the only information that the Underwriters have furnished to the Company through the Representatives expressly for use in the Registration Statement (or any amendment thereto), any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto), consists of the statements set forth in the third sentence of the sixth paragraph and the seventh, nineteenth and twenty-second paragraphs under the heading “Underwriting” in the Preliminary Prospectus and the Prospectus.
(c) Notifications and Other Indemnification Procedures. Promptly after receipt by an indemnified party under this Section 8 notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure to so notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in material prejudice to the indemnifying party (through the forfeiture of substantive rights and defenses) and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. In case any such action is brought against any indemnified party and such indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be entitled to participate in, and, to the extent that it shall elect, jointly with all other indemnifying parties similarly notified, by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that a conflict may arise between the positions of the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be legal defenses available to it and/or the other indemnified parties that are different or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified
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party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying party’s election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 8 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (other than local counsel), representing all indemnified parties who are parties to such action) or (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action, in each of which cases the fees and expenses of counsel shall be at the expense of the indemnifying party as reasonably incurred by the indemnified party.
(d) Settlements. The indemnifying party under this Section shall not be liable for any settlement of any proceeding effected without its written consent, which shall not be withheld unreasonably, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have provided the indemnifying party with the proposed terms of settlement and shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by Section 8 hereof, the indemnifying party agrees that such party shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement or notified the indemnified party that it in good faith disputes whether it is obligated to indemnify the indemnified party with respect to such settlement or the fees and expenses of counsel. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment if any pending or threatened action, suit or proceeding in respect of which any indemnified party is or could have been a party and indemnity was or could have been sought hereunder by such indemnified party, unless such settlement, compromise or consent (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such action, suit or proceeding and (ii) does not include a statement as to an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
SECTION 9. Contribution.
(a) Contribution. If the indemnification provided for in Section 8 is for any reason unavailable to an indemnified party or otherwise insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each indemnifying party, shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors, on the one hand, and the Underwriters, on the other hand, from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Guarantors, on the one hand, and the Underwriters, on the other hand, in connection with the statements or omissions or inaccuracies in the representations and warranties herein which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantors, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Securities, pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the
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offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company and the Guarantors, and the total underwriting discount received by the Underwriters, in each case as set forth on the front cover page of the Prospectus bear to the aggregate initial public offering price of the Notes as set forth on such cover. The relative fault of the Company and the Guarantors, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact or any such inaccurate or alleged inaccurate representation or warranty relates to information supplied by the Company and the Guarantors, on the one hand, or the Underwriters, on the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 8(c), any legal or other fees or disbursements reasonably incurred by such party in connection with investigating or defending any action or claim.
The Company, the Guarantors and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 9. Notwithstanding the provisions of this Section 9, no Underwriter shall be required to contribute any amount in excess of the underwriting discount received by such Underwriter in connection with the Securities underwritten by it and distributed to the public. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 9 are several, and not joint, in proportion to their respective underwriting commitments as set forth opposite their names in Schedule A. For purposes of this Section 9, each director, officer, employee and agent of an Underwriter, each affiliate of an Underwriter that offers securities and each person, if any, who controls an Underwriter within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as such Underwriter, and each director of the Company and/or a Guarantor, each officer of the Company and/or a Guarantor who signed the Registration Statement and each person, if any, who controls the Company and/or a Guarantor within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as the Company and the respective Guarantors, as the case may be.
SECTION 10. Default of One or More of the Several Underwriters.
(a) If, on the Closing Date, any one or more of the several Underwriters shall fail or refuse to purchase the Notes that it or they have agreed to purchase hereunder on such date, and the aggregate principal amount of Notes which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not exceed 10% of the aggregate principal amount of the Notes to be purchased on such date, the other Underwriters shall be obligated, severally, in the proportions that the principal amount of Notes to be purchased set forth opposite their respective names on Schedule A bears to the aggregate principal amount of Notes set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as may be specified by the Representatives with the consent of the non-defaulting Underwriters, to purchase the Notes which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date. If, on the Closing Date, any one or more of the Underwriters shall fail or refuse to purchase the Notes and the aggregate principal amount of Notes with respect to which such default occurs exceeds 10% of the aggregate principal amount of Notes to be purchased on such date, and arrangements satisfactory to the Representatives and the Company for the purchase of such Notes are not made within 48 hours after such default, this Agreement shall terminate without liability of any party to
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any other party except that the provisions of Section 5, Section 7, Section 8, Section 9, Section 13 and Section 17 shall at all times be effective and shall survive such termination. In any such case either the Representatives or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days in order that the required changes, if any, to the Registration Statement, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus or any other documents or arrangements may be effected. As used in this Agreement, the term “Underwriter” shall be deemed to include any person substituted for a defaulting Underwriter under this Section 10. Any action taken under this Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
SECTION 11. Termination of this Agreement.
(a) Prior to the Closing Date this Agreement may be terminated by the Representatives by notice given to the Company if at any time (i) trading or quotation in any of the Company’s securities shall have been suspended or limited by the Commission or by the New York Stock Exchange, or trading in securities generally on the New York Stock Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchanges by the Commission or FINRA; (ii) a general banking moratorium shall have been declared by federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred; (iii) in the judgment of the Representatives there shall have occurred any Material Adverse Change; or (iv) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Representatives is material and adverse and makes it impracticable or inadvisable to market the Securities in the manner and on the terms described in the Disclosure Package or the Prospectus or to enforce contracts for the sale of securities. Any termination pursuant to this Section 11 shall be without liability on the part of (a) the Company or any Guarantor to any Underwriter, except that the Company and the Guarantors shall be, jointly and severally, obligated to reimburse the expenses of the Representatives and the Underwriters pursuant to Sections 5 and 7 hereof or (b) any Underwriter to the Company, except, in each case, as provided under Sections 8 and 9 hereof.
SECTION 12. No Advisory or Fiduciary Responsibility.
(a) The Company and each Guarantor acknowledge and agree that: (i) the purchase and sale of the Securities pursuant to this Agreement, including the determination of the public offering price of the Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the Company and such Guarantor, on the one hand, and the several Underwriters, on the other hand, and the Company and such Guarantor are capable of evaluating and understanding and understand and accept the terms, risks and conditions of the transactions contemplated by this Agreement; (ii) in connection with each transaction contemplated hereby and the process leading to such transaction each Underwriter is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary of the Company, the Guarantors or any of their respective affiliates, stockholders, creditors or employees or any other party; (iii) no Underwriter has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Company or such Guarantor with respect to any of the transactions contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or such Guarantor on other matters) and no Underwriter has any obligation to the Company or such Guarantor with respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement; (iv) the several Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company and
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the Guarantors and that the several Underwriters have no obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company and the Guarantors have consulted their own legal, accounting, regulatory and tax advisors to the extent they deemed appropriate.
This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company, the Guarantors and the several Underwriters, or any of them, with respect to the subject matter hereof. The Company and each Guarantor hereby waive and release, to the fullest extent permitted by law, any claims that the Company or such Guarantor may have against the several Underwriters with respect to any breach or alleged breach of agency or fiduciary duty.
SECTION 13. Representations and Indemnities to Survive Delivery. The respective indemnities, agreements, representations, warranties and other statements of the Company, of its officers and of the several Underwriters set forth in or made pursuant to this Agreement will remain operative and in full force and effect, regardless of any (A) investigation, or statement as to the results thereof, made by or on behalf of any Underwriter, the officers or employees of any Underwriter, or any person controlling the Underwriter or (B) acceptance of the Securities and payment for them hereunder. The provisions of Section 5, Section 7, Section 8, Section 9, this Section 13 and Section 17 hereof shall survive the termination or cancellation of this Agreement.
SECTION 14. Notices. All communications hereunder shall be in writing and shall be mailed, hand delivered or telecopied and confirmed to the parties hereto as follows:
If to the Representatives:
Wells Fargo Securities, LLC
550 South Tryon Street, 6th Floor
Charlotte, North Carolina 28202
Attention: Legal Department
and
Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
Attention: Syndicate Registration
If to the Company:
DaVita HealthCare Partners Inc.
2000 16th St.
Denver, Colorado 80202
Facsimile: (866) ###-###-####
Attention: Chief Legal Officer
with a copy to:
Sharon R. Flanagan, Esq.
Sidley Austin LLP
555 California Street, Suite 2000
San Francisco, CA 94104
Facsimile: (415) ###-###-####
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Any party hereto may change the address for receipt of communications by giving written notice to the others.
SECTION 15. Successors and Assigns. This Agreement will inure to the benefit of and be binding upon the parties hereto, including any substitute Underwriters pursuant to Section 10 hereof, and to the benefit of (i) the Company and the Guarantors, their respective directors and their respective officers who signed the Registration Statement, and any person who controls the Company or any of the Guarantors within the meaning of the Securities Act and the Exchange Act and any officer of the Company or any Guarantor who signed the Registration Statement, (ii) the Underwriters, the affiliates which offer securities, officers, directors, employees and agents of the Underwriters, and each person, if any, who controls any Underwriter within the meaning of the Securities Act and the Exchange Act, and (iii) the respective successors and assigns of any of the above, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The term “successors and assigns” shall not include a purchaser of any of the Securities from any of the several Underwriters merely because of such purchase.
SECTION 16. Partial Unenforceability. The invalidity or unenforceability of any Section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
SECTION 17. Governing Law Provisions. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK (IT BEING UNDERSTOOD THAT THIS SECTION 17 SHALL NOT BE INTENDED TO, AND SHALL NOT HAVE THE EFFECT OF, SUPERSEDING THE GOVERNING LAW PROVISION OF ANY OTHER TRANSACTION DOCUMENT OR ANY OTHER AGREEMENT RELATED TO THIS AGREEMENT).
Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby (“Related Proceedings”) may be instituted in the federal courts of the United States of America located in the City and County of New York or the courts of the State of New York in each case located in the City and County of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction (except for suits, actions, or proceedings instituted in regard to the enforcement of a judgment of any Specified Court in a Related Proceeding (a “Related Judgment”), as to which such jurisdiction is non-exclusive) of the Specified Courts in any Related Proceeding. Service of any process, summons, notice or document by mail to such party’s address set forth above shall be effective service of process for any Related Proceeding brought in any Specified Court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any Related Proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any Specified Court that any Related Proceeding brought in any Specified Court has been brought in an inconvenient forum.
SECTION 18. General Provisions. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof. This Agreement may be
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executed in two or more counterparts, each one of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by telecopier, facsimile, email or other electronic transmission (i.e., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement. This Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit. The Section headings herein are for the convenience of the parties only and shall not affect the construction or interpretation of this Agreement.
SECTION 19. Patriot Act Compliance. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification provisions of Section 8 and the contribution provisions of Section 9, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Sections 8 and 9 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, the Disclosure Package and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act.
[Signature Page Follows]
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If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms.
| Very truly yours,
| ||
| DAVITA HEALTHCARE PARTNERS INC. | ||
| By: | /s/ Chetan P. Mehta | |
| Name: Chetan P. Mehta | ||
| Title: Group Vice President, Finance | ||
| ABQ Health Partners, LLC Alamosa Dialysis, LLC Arizona Integrated Physicians, Inc. Carroll County Dialysis Facility, Inc. Continental Dialysis Center of Springfield-Fairfax, Inc. Continental Dialysis Center, Inc. DaVita—West, LLC DaVita HealthCare Partners Plan, Inc. DaVita of New York, Inc. DaVita Rx, LLC Dialysis Holdings, Inc. Dialysis Specialists of Dallas, Inc. DNH Medical Management, Inc. (dba the Camden Group) DNP Management Company, LLC Downriver Centers, Inc. DVA Healthcare of Maryland, Inc. DVA Healthcare of Massachusetts, Inc. DVA Healthcare of Pennsylvania, Inc. DVA Healthcare Procurement Services, Inc. DVA Healthcare Renal Care, Inc. DVA Laboratory Services, Inc. DVA of New York, Inc. DVA Renal Healthcare, Inc. East End Dialysis Center, Inc. Elberton Dialysis Facility, Inc. Flamingo Park Kidney Center, Inc. Fort Dialysis, LLC Freehold Artificial Kidney Center, L.L.C. Greenspoint Dialysis, LLC HealthCare Partners Arizona, LLC HealthCare Partners ASC-LB, LLC |
-30-
| HealthCare Partners Holdings, LLC HealthCare Partners Nevada, LLC HealthCare Partners South Florida, LLC HealthCare Partners, LLC Hills Dialysis, LLC Houston Kidney Center/Total Renal Care Integrated Service Network Limited Partnership JSA Care Partners, LLC JSA Health Care Corporation JSA Health Care Nevada, L.L.C. JSA Holdings, Inc. JSA P5 Nevada, L.L.C. Kidney Care Services, LLC Knickerbocker Dialysis, Inc. Las Vegas Solari Hospice Care, LLC Liberty RC, Inc. Lincoln Park Dialysis Services, Inc. Maple Grove Dialysis, LLC Mason-Dixon Dialysis Facilities, Inc. Medical Group Holding Co., LLC Nephrology Medical Associates of Georgia, LLC Neptune Artificial Kidney Center, L.L.C. North Atlanta Dialysis Center, LLC North Colorado Springs Dialysis, LLC Northridge Medical Services Group, Inc. Palo Dialysis, LLC Patient Pathways, LLC Physicians Choice Dialysis Of Alabama, LLC Physicians Choice Dialysis, LLC Physicians Dialysis Acquisitions, Inc. Physicians Dialysis Ventures, Inc. Physicians Dialysis, Inc. Physicians Management, LLC Renal Life Link, Inc. Renal Treatment Centers, Inc. Renal Treatment Centers—California, Inc. Renal Treatment Centers—Hawaii, Inc. Renal Treatment Centers—Illinois, Inc. Renal Treatment Centers—Mid-Atlantic, Inc. Renal Treatment Centers—Northeast, Inc. Renal Treatment Centers—Southeast, LP Renal Treatment Centers—West, Inc. RMS Lifeline, Inc. Rocky Mountain Dialysis Services, LLC Shining Star Dialysis, Inc. Sierra Rose Dialysis Center, LLC Southwest Atlanta Dialysis Centers, LLC The DaVita Collection, Inc. THP Services, Inc. Total Acute Kidney Care, Inc. |
-31-
| Total Renal Care Texas Limited Partnership Total Renal Care, Inc. Total Renal Laboratories, Inc. Total Renal Research, Inc. TRC—Indiana, LLC TRC of New York, Inc. TRC West, Inc. Tree City Dialysis, LLC VillageHealth DM, LLC |
| By: | /s/ Chetan P. Mehta | |
| Chetan P. Mehta | ||
| Group Vice President | ||
-32-
The foregoing Agreement is hereby confirmed and accepted by the Representatives as of the date first above written.
| WELLS FARGO SECURITIES, LLC | ||
| Acting as Representative of the several Underwriters named in the attached Schedule A. | ||
| By: | Wells Fargo Securities, LLC | |
| By: | /s/ Chris McCoy | |
| Name: Chris McCoy | ||
| Title: Managing Director | ||
-33-
BARCLAYS CAPITAL INC.
Acting as Representative of the
several Underwriters named in
the attached Schedule A.
| By: | Barclays Capital Inc. | |
| By: | /s/ John Skrobe | |
| Name: John Skrobe | ||
| Title: Managing Director | ||
SCHEDULE A
|
| Principal Amount Of Notes To Be Purchased | |||||
| Wells Fargo Securities, LLC | $ | 288,750,000.00 | ||||
| Barclays Capital Inc. | 288,750,000.00 | |||||
| Credit Suisse Securities (USA) LLC | 166,250,000.00 | |||||
| Goldman, Sachs & Co. | 166,250,000.00 | |||||
| J.P. Morgan Securities LLC | 166,250,000.00 | |||||
| Merrill Lynch, Pierce, Fenner & Smith Incorporated | 166,250,000.00 | |||||
| Morgan Stanley & Co. LLC | 166,250,000.00 | |||||
| SunTrust Robinson Humphrey, Inc. | 166,250,000.00 | |||||
| Credit Agricole Securities (USA) Inc. | 43,750,000.00 | |||||
| Mitsubishi UFJ Securities (USA), Inc. | 43,750,000.00 | |||||
| Scotia Capital (USA) Inc. | 43,750,000.00 | |||||
| SMBC Nikko Securities America, Inc. | 43,750,000.00 | |||||
|
|
| |||||
| Total | $ | 1,750,000,000 | ||||
Schedule A-1
SCHEDULE B-1
Guarantors
| Name of Entity | Jurisdiction of Formation | IRS EIN | ||
| ABQ Health Partners, LLC | Delaware | 20 ###-###-#### | ||
| Alamosa Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Arizona Integrated Physicians, Inc. | Delaware | 86-0788567 | ||
| Carroll County Dialysis Facility, Inc. | Maryland | 52-1693649 | ||
| Continental Dialysis Center of Springfield-Fairfax, Inc. | Virginia | 62-1238381 | ||
| Continental Dialysis Center, Inc. | Virginia | 22 ###-###-#### | ||
| DaVita—West, LLC | Delaware | 01-0561202 | ||
| DaVita HealthCare Partners Plan, Inc. | Delaware | 46 ###-###-#### | ||
| DaVita of New York, Inc. | New York | 26-1650326 | ||
| DaVita Rx, LLC | Delaware | 20 ###-###-#### | ||
| Dialysis Holdings, Inc. | Delaware | 94 ###-###-#### | ||
| Dialysis Specialists of Dallas, Inc. | Texas | 75 ###-###-#### | ||
| DNH Medical Management, Inc. (dba the Camden Group) | California | 95 ###-###-#### | ||
| DNP Management Company, LLC | Delaware | 26-0775419 | ||
| Downriver Centers, Inc. | Michigan | 38 ###-###-#### | ||
| DVA Healthcare of Maryland, Inc. | Maryland | 62-1605235 | ||
| DVA Healthcare of Massachusetts, Inc. | Massachusetts | 62-1529463 | ||
| DVA Healthcare of Pennsylvania, Inc. | Pennsylvania | 91-1867238 | ||
| DVA Healthcare Procurement Services, Inc. | California | 33-0731597 | ||
| DVA Healthcare Renal Care, Inc. | Nevada | 95 ###-###-#### | ||
| DVA Laboratory Services, Inc. | Florida | 65-0127483 | ||
| DVA of New York, Inc. | New York | 91-1806157 | ||
| DVA Renal Healthcare, Inc. | Tennessee | 62-1323090 | ||
| East End Dialysis Center, Inc. | Virginia | 54-1318452 | ||
| Elberton Dialysis Facility, Inc. | Georgia | 58-1721014 | ||
| Flamingo Park Kidney Center, Inc. | Florida | 65-0431823 | ||
| Fort Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Freehold Artificial Kidney Center, L.L.C. | New Jersey | 22 ###-###-#### | ||
| Greenspoint Dialysis, LLC | Delaware | 26-1649191 | ||
| HealthCare Partners Arizona, LLC | Arizona | 46-1904106 | ||
| HealthCare Partners ASC-LB, LLC | California | 95 ###-###-#### | ||
| HealthCare Partners Holdings, LLC | California | 56 ###-###-#### | ||
| HealthCare Partners Nevada, LLC | Nevada | 27-0398693 | ||
| HealthCare Partners South Florida, LLC | Florida | 43 ###-###-#### | ||
| HealthCare Partners, LLC | California | 95 ###-###-#### | ||
| Hills Dialysis, LLC | Delaware | 27-1859945 | ||
| Houston Kidney Center/Total Renal Care Integrated Service Network Limited Partnership | Delaware | 76-0509917 | ||
| JSA Care Partners, LLC | Florida | 45 ###-###-#### |
Schedule B-1-1
| JSA Health Care Corporation | Delaware | 87-0408859 | ||
| JSA Health Care Nevada, L.L.C. | Nevada | 74 ###-###-#### | ||
| JSA Holdings, Inc. | Delaware | 20-0160881 | ||
| JSA P5 Nevada, L.L.C. | Nevada | 20 ###-###-#### | ||
| Kidney Care Services, LLC | Delaware | 11 ###-###-#### | ||
| Knickerbocker Dialysis, Inc. | New York | 40-0002285 | ||
| Las Vegas Solari Hospice Care, LLC | Delaware | 45 ###-###-#### | ||
| Liberty RC, Inc. | New York | 91-1889832 | ||
| Lincoln Park Dialysis Services, Inc. | Illinois | 36 ###-###-#### | ||
| Maple Grove Dialysis, LLC | Delaware | 26-1757887 | ||
| Mason-Dixon Dialysis Facilities, Inc. | Maryland | 52-1766772 | ||
| Medical Group Holding Co., LLC | New Mexico | 20 ###-###-#### | ||
| Nephrology Medical Associates of Georgia, LLC | Georgia | 91 ###-###-#### | ||
| Neptune Artificial Kidney Center, L.L.C. | New Jersey | 22 ###-###-#### | ||
| North Atlanta Dialysis Center, LLC | Delaware | 20-0336249 | ||
| North Colorado Springs Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Northridge Medical Services Group, Inc. | California | 36 ###-###-#### | ||
| Palo Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Patient Pathways, LLC | Delaware | 27-0670041 | ||
| Physicians Choice Dialysis Of Alabama, LLC | Delaware | 90-0072092 | ||
| Physicians Choice Dialysis, LLC | Delaware | 90-0072080 | ||
| Physicians Dialysis Acquisitions, Inc. | Delaware | 04 ###-###-#### | ||
| Physicians Dialysis Ventures, Inc. | Delaware | 04 ###-###-#### | ||
| Physicians Dialysis, Inc. | Delaware | 04 ###-###-#### | ||
| Physicians Management, LLC | Delaware | 90-0072097 | ||
| Renal Life Link, Inc. | Delaware | 20-1649898 | ||
| Renal Treatment Centers, Inc. | Delaware | 23 ###-###-#### | ||
| Renal Treatment Centers—California, Inc. | Delaware | 23 ###-###-#### | ||
| Renal Treatment Centers—Hawaii, Inc. | Delaware | 23 ###-###-#### | ||
| Renal Treatment Centers—Illinois, Inc. | Delaware | 23 ###-###-#### | ||
| Renal Treatment Centers—Mid-Atlantic, Inc. | Delaware | 23 ###-###-#### | ||
| Renal Treatment Centers—Northeast, Inc. | Delaware | 23 ###-###-#### | ||
| Renal Treatment Centers—Southeast, LP | Delaware | 23 ###-###-#### | ||
| Renal Treatment Centers—West, Inc. | Delaware | 23 ###-###-#### | ||
| RMS Lifeline, Inc. | Delaware | 36 ###-###-#### | ||
| Rocky Mountain Dialysis Services, LLC | Delaware | 32-0000322 | ||
| Shining Star Dialysis, Inc. | New Jersey | 91 ###-###-#### | ||
| Sierra Rose Dialysis Center, LLC | Delaware | 02-0614476 | ||
| Southwest Atlanta Dialysis Centers, LLC | Delaware | 20-0336205 | ||
| The DaVita Collection, Inc. | California | 20 ###-###-#### | ||
| THP Services, Inc. | California | 20 ###-###-#### | ||
| Total Acute Kidney Care, Inc. | Florida | 65-0086334 | ||
| Total Renal Care Texas Limited Partnership | Delaware | 74 ###-###-#### | ||
| Total Renal Care, Inc. | California | 95 ###-###-#### | ||
| Total Renal Laboratories, Inc. | Florida | 59 ###-###-#### | ||
| Total Renal Research, Inc. | Delaware | 94 ###-###-#### |
Schedule B-1-2
| TRC—Indiana, LLC | Indiana | 91-1971775 | ||
| TRC of New York, Inc. | New York | 91-1849180 | ||
| TRC West, Inc. | Delaware | 88-0364717 | ||
| Tree City Dialysis, LLC | Delaware | 26-0460873 | ||
| VillageHealth DM, LLC | Delaware | 20-0174548 |
Schedule B-1-3
SCHEDULE B-2
Non-Guarantor Subsidiaries
| Name of Entity | Jurisdiction of Formation | IRS EIN | ||
| Aberdeen Dialysis, LLC | Delaware | 20 ###-###-#### | ||
| Able Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| ABQ Health Partners Endoscopy Center, LLC | New Mexico | 26-1508741 | ||
| Acadia Dialysis, LLC | Delaware | 46-1698542 | ||
| Accountable Kidney Care, LLC | Delaware | 46-0835950 | ||
| Acton Dialysis, LLC | Delaware | 46-1991590 | ||
| Adair Dialysis, LLC | Delaware | 46-0821113 | ||
| Aikens Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Alexandria Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Alomie Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Amarillo Dialysis, LLC | Delaware | 26-0460662 | ||
| American Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| American Fork Dialysis, LLC | Delaware | 26-0460502 | ||
| Amery Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| An Ren | Taiwan, Province Of China | N/A | ||
| An Shu | Taiwan, Province Of China | N/A | ||
| Anderson Kidney Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Animas Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Arcadia Gardens Dialysis, LLC | Delaware | 26-1504868 | ||
| Arches Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Argyle Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| ARTA Health Network, a Professional Medical Corporation | California | 33-0622649 | ||
| ARTA Western Medical Group, Inc. | California | 33-0658815 | ||
| Astro, Hobby, West Mt. Renal Care Limited Partnership | Delaware | 76-0520167 | ||
| Atlantic Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Austin Dialysis Centers, L.P. | Delaware | 20-1561159 | ||
| Bagby Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Bainbridge Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Balch Springs Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Bannon Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Barnell Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Barrington Dialysis, LLC | Delaware | 46-1054448 | ||
| Barton Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Basin Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Bastrop Dialysis, LLC | Delaware | 46-1047539 | ||
| Bayshore Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Baytown Dialysis, LLC | Delaware | 26-0331376 | ||
| Beachside Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Beacon Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Bear Creek Dialysis Center, L.P. | Delaware | 20 ###-###-#### | ||
| Beck Dialysis, LLC | Delaware | 46-1465376 | ||
| Belfair Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Bellevue Dialysis, LLC | Delaware | 46-0754128 | ||
| Beverly Dialysis, LLC | Delaware | 27 ###-###-#### |
Schedule B-2-1
| Beverly Hills Dialysis Partnership | California | 95 ###-###-#### | ||
| Bidwell Dialysis, LLC | Delaware | 46-1123765 | ||
| Birch Dialysis, LLC | Ohio | 27 ###-###-#### | ||
| Bladon Dialysis, LLC | Delaware | 36 ###-###-#### | ||
| Blake Dialysis, LLC | Delaware | 45-1966671 | ||
| Blanco Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Bliss Dialysis, LLC | Delaware | 46-0607480 | ||
| Blue Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Bluegrass Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Bohama Dialysis, LLC | Delaware | 46-1137531 | ||
| Boltron Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Borrego Dialysis, LLC | Delaware | 46-1792060 | ||
| Bottle Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Bowan Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Braden Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Braggs Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Braidwood Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Brantley Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Bridges Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Bright Dialysis, LLC | Delaware | 27-0488742 | ||
| Brighton Dialysis Center, LLC | Delaware | 20-0875984 | ||
| Brook Dialysis LLC | Delaware | 27 ###-###-#### | ||
| Brownsville Kidney Center, Ltd | Texas | 74 ###-###-#### | ||
| Brownwood Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Bruno Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Bryce Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Buescher Dialysis, LLC | New York | 46-1713425 | ||
| Buford Dialysis, LLC | Delaware | 20 ###-###-#### | ||
| Bulfinch Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Bullards Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Burney Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Burton Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Butano Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Caballo Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Caddo Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Cagles Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Calaveras Dialysis, LLC | Delaware | 46-1083900 | ||
| Camino Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Campton Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Cannon Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Canyon Springs Dialysis, LLC | Delaware | 26-0775607 | ||
| Canyonlands Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Capelville Dialysis, LLC | Delaware | 26-1787972 | ||
| Capes Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Capital Dialysis Partnership | California | 91-1874072 | ||
| Cardinal Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Carlsbad Dialysis, LLC | Delaware | 46-0536117 | ||
| Carlton Dialysis, LLC | U.S. Virgin Islands | 66-0817279 | ||
| Carroll County Dialysis Facility Limited Partnership | Maryland | 52-1728533 | ||
| Cascades Dialysis, LLC | Delaware | 26 ###-###-#### |
Schedule B-2-2
| Cassin Dialysis, LLC | U.S. Virgin Islands | 66-0817700 | ||
| Caswell Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Cataldo Dialysis, LLC | New York | 46 ###-###-#### | ||
| Catello Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Cathedral Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Caverns Dialysis, LLC | Delaware | 46-1364131 | ||
| Cedar Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Centennial LV, LLC | Delaware | 20 ###-###-#### | ||
| Central Carolina Dialysis Centers, LLC | Delaware | 47-0938741 | ||
| Central Georgia Dialysis, LLC | Delaware | 20 ###-###-#### | ||
| Central Iowa Dialysis Partners, LLC | Delaware | 20-0847476 | ||
| Central Kentucky Dialysis Centers, LLC | Delaware | 20-1557876 | ||
| Cerito Dialysis Partners, LLC | Delaware | 27 ###-###-#### | ||
| Chadron Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Champions Dialysis, LLC | Delaware | 27-1823824 | ||
| Channel Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Cheraw Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Cherry Valley Dialysis, LLC | Delaware | 26-0494445 | ||
| Chesterfield Dialysis, LLC | Delaware | 20 ###-###-#### | ||
| Chicago Heights Dialysis, LLC | Delaware | 20-1252883 | ||
| Chipeta Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Churchill Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Cimarron Dialysis, LLC | Delaware | 35 ###-###-#### | ||
| Cinco Rios Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Clark Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Clayton Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Clearee Dialysis, LLC | Delaware | 46-1014442 | ||
| Cleburne Dialysis, LLC | Delaware | 46-1065639 | ||
| Clifton Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Clinica Central do Bonfim S.A. | Portugal | N/A | ||
| Clinton Township Dialysis, LLC | Delaware | 26-0494278 | ||
| Clover Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Coast Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Cobbles Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Coe Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Colleton Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Columbus-RNA-DaVita, LLC | Delaware | 26-1928637 | ||
| Colville Dialysis, LLC | Delaware | 26-0494371 | ||
| Commerce Township Dialysis Center, LLC | Delaware | 20 ###-###-#### | ||
| Conchasa Dialysis, LLC | Delaware | 46-1219652 | ||
| Conconully Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Cooper Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Coral Dialysis, LLC | Delaware | 46-1998880 | ||
| Cordele Dialysis Center, LLC | Delaware | 26-0876834 | ||
| Cottonwood Dialysis, LLC | Delaware | 27-1586962 | ||
| Court Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Cowell Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Creek Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Crestshore Dialysis, LLC | New York | 46 ###-###-#### | ||
| Crystals Dialysis, LLC | Delaware | 26 ###-###-#### |
Schedule B-2-3
| Curecanti Dialysis, LLC | Delaware | 46-0603097 | ||
| Curlew Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Dallas-Fort Worth Nephrology II, LLC | Delaware | 20 ###-###-#### | ||
| Dallas-Fort Worth Nephrology, L.P. | Delaware | 20 ###-###-#### | ||
| Damon Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Daroga Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Davis Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| DaVita—Riverside II, LLC | Delaware | 20 ###-###-#### | ||
| DaVita 3SBio Healthcare Management (Liaoning) Co., Ltd. | China | N/A | ||
| DaVita Care (Philippines), Inc. | Philippines | N/A | ||
| DaVita Care (Saudi Arabia) | Saudi Arabia | N/A | ||
| DaVita Care (Taiwan) Private Limited | Taiwan, Province Of China | N/A | ||
| DaVita Care (UK) Ltd. | United Kingdom | N/A | ||
| DaVita Care KSA B.V. | Netherlands | N/A | ||
| DaVita Care Pte, Ltd. | Singapore | N/A | ||
| DaVita China Pte. Ltd. | Singapore | N/A | ||
| DaVita Dakota Dialysis Center, LLC | Delaware | 26-0231202 | ||
| DaVita DPC Holding Co., LLC | Delaware | 45 ###-###-#### | ||
| DaVita El Paso East, L.P. | Delaware | 20 ###-###-#### | ||
| DaVita Hospital Management Consulting (Shanghai) Co., Ltd. | China | N/A | ||
| DaVita International, LLC | Delaware | 90-0864028 | ||
| DaVita Lehbi Cayman | Cayman Islands | N/A | ||
| DaVita Nephrolife (India) Private Limited | India | N/A | ||
| DaVita Nephrology Medical Associates of Washington, P.C. | Washington | 20-0863625 | ||
| DaVita Renal Care India Private Limited | India | N/A | ||
| DaVita Renal Pte, Ltd. | Singapore | N/A | ||
| DaVita Seri Setia Sdn. Bhd. | Malaysia | N/A | ||
| DaVita Tidewater—Virginia Beach, LLC | Delaware | 20 ###-###-#### | ||
| DaVita Tidewater, LLC | Delaware | 20-1242215 | ||
| DaVita VillageHealth Insurance Of Alabama, Inc. | Alabama | 20 ###-###-#### | ||
| DaVita VillageHealth of Colorado, Inc. | Colorado | 26-0233682 | ||
| DaVita VillageHealth of Ohio, Inc. | Ohio | 20 ###-###-#### | ||
| DaVita VillageHealth, Inc. | Delaware | 20 ###-###-#### | ||
| DaVita-Riverside, LLC | Delaware | 03-0400051 | ||
| DC Healthcare International, Inc. | Delaware | 27 ###-###-#### | ||
| DE Oro Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Decker Dialysis, LLC | Delaware | 26-1538625 | ||
| Deerbrook Dialysis Center, LLC | Delaware | 20 ###-###-#### | ||
| Delabar Dialysis, LLC | Delaware | 46-4115531 | ||
| Deowee Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Deschutes Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Desoto Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Diablo Dialysis, LLC | Delaware | 46-1855893 | ||
| Dialyse-Zentrum Hamburg-Ost GmbH | Germany | N/A | ||
| Dialysis of Des Moines, LLC | Delaware | 90-0065950 | ||
| Dialysis of North Atlanta, LLC | Delaware | 75 ###-###-#### | ||
| Dialysis of Northern Illinois, LLC | Delaware | 68-0555153 | ||
| Dolores Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Dome Dialysis, LLC | Delaware | 45-0985042 | ||
| Doves Dialysis, LLC | Delaware | 27 ###-###-#### |
Schedule B-2-4
| Downtown Houston Dialysis Center, L.P. | Delaware | 20-0749365 | ||
| DPC Vail, LLC | Delaware | 80-0772321 | ||
| Dresher Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Durango Dialysis Center, LLC | Delaware | 20-1557928 | ||
| DV Care GmbH | Germany | N/A | ||
| DV Care Netherlands B.V. | Netherlands | N/A | ||
| DV Care Netherlands C.V. | Netherland | N/A | ||
| DV Renal Care Sweden AB | Sweden | N/A | ||
| DVA (Malaysia) SDN. BHD. | Malaysia | N/A | ||
| DVA Dialysis Services SDN. BHD. | Malaysia | N/A | ||
| DVA Healthcare—Southwest Ohio, LLC | Tennessee | 91-1806155 | ||
| DVA Healthcare of New London, LLC | Tennessee | 91-1973363 | ||
| DVA Healthcare of Norwich, LLC | Tennessee | 91-1973361 | ||
| DVA Healthcare of Tuscaloosa, LLC | Tennessee | 62-1620606 | ||
| DVA Renal Care Portugal, Unipessoal LDA | Portugal | N/A | ||
| DVA/Washington University Healthcare of Greater St. Louis, LLC | Delaware | 43-1868988 | ||
| Dworsher Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Eagles Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| East Bay—DaVita Dialysis, LLC | Delaware | None | ||
| East Dearborn Dialysis, LLC | Delaware | 80-0132363 | ||
| East Ft. Lauderdale, LLC | Delaware | 20-0068890 | ||
| East Houston Kidney Center, L.P. | Delaware | 20-0749404 | ||
| Eastmont Dialysis Partnership | California | 91-1819193 | ||
| Eastover Dialysis, LLC | Delaware | 26-1209524 | ||
| Ebrea Dialysis, LLC | Delaware | 46-1823618 | ||
| Edisto Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Eldrist Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Elgin Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Elk Grove Dialysis Center, LLC | Delaware | 47-0936543 | ||
| Empire State DC, Inc. | New York | 84-1377630 | ||
| Enchanted Dialysis, LLC | New York | 45 ###-###-#### | ||
| Especialistas en Salud-Esensa S.A.S. | Colombia | N/A | ||
| Espeja sp. z o.o. | Poland | N/A | ||
| Estero Dialysis, LLC | Delaware | 27-0158396 | ||
| Etowah Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Eufaula Dialysis, LLC | Delaware | 46-0791632 | ||
| EURODIAL—Centro de Nefrologia e Dialise de Leiria S.A. | Portugal | N/A | ||
| Everglades Dialysis, LLC | Delaware | 46-1004283 | ||
| Extracorp Aktiengesellschaft | Germany | N/A | ||
| Fairfield Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Falcon, LLC | Delaware | 80-0488649 | ||
| Falls Dialysis, LLC | Delaware | 27-1586831 | ||
| Fanthorp Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Farragut Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Fenton Dialysis, LLC | Delaware | 45-1452582 | ||
| Fields Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Five Star Dialysis, LLC | Delaware | 26-0876772 | ||
| Fjords Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Flagler Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Flor Dialysis, LLC | Delaware | 27 ###-###-#### |
Schedule B-2-5
| Forester Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Foss Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Freeportbay Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Fremont Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Fullerton Dialysis Center, LLC | Delaware | 20 ###-###-#### | ||
| Ganois Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Gardenside Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Garner Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Garrett Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Garth Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| GDC International, LLC | Delaware | 27-1464577 | ||
| GDC Resources, LLC | Delaware | 27-1464490 | ||
| Gemini Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Gertrude Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Geyser Dialysis, LLC | Delaware | 46-1364071 | ||
| GiveLife Dialysis, LLC | Delaware | 27-0558651 | ||
| Givhan Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Glacier Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Glassland Dialysis, LLC | Delaware | 46-0629988 | ||
| Golden Dialysis, LLC | Delaware | 46-1434069 | ||
| Golden Sun Bear, LLC | Delaware | 27-3112699 | ||
| Goldendale Dialysis, LLC | Delaware | 46-1514483 | ||
| Goliad Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Goodale Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Goza Dialysis, LLC | Delaware | 46-1741207 | ||
| Grand Home Dialysis, LLC | Delaware | 26-0494588 | ||
| Great Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Greater Las Vegas Dialysis, LLC | Delaware | 20 ###-###-#### | ||
| Greater Los Angeles Dialysis Centers, LLC | Delaware | 20 ###-###-#### | ||
| Green Country Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Green Desert Dialysis, LLC | Delaware | 20 ###-###-#### | ||
| Greenleaf Dialysis, LLC | Delaware | 46-0754555 | ||
| Greenwood Dialysis, LLC | Delaware | 20-0340412 | ||
| Griffin Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Griffs Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Grosse Pointe Dialysis, LLC | Delaware | 26-0435725 | ||
| Grove Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Gulch Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Guntersville Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Hagerstown Dialysis, LLC | Delaware | 26-0460607 | ||
| Hanford Dialysis, LLC | Delaware | 26-1382974 | ||
| Hardy Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Harmony Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Harriman Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Harris Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Hart Dialysis, LLC | Delaware | 27-1586624 | ||
| Hawaiian Gardens Dialysis Center, LLC | Delaware | 26-0231123 | ||
| Hazelton Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| HCP ACO California, LLC | California | 45 ###-###-#### | ||
| HCP ACO Nevada, LLC | Nevada | 45 ###-###-#### |
Schedule B-2-6
| HCP/ARTA Medical Group, P.C. | California | 46-1772418 | ||
| Headlands Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| HealthCare Partners Accountable Care Organization, LLC | California | 45 ###-###-#### | ||
| HealthCare Partners Affiliates Medical Group | California | 95 ###-###-#### | ||
| HealthCare Partners Associates Medical Group, Inc. | California | 45 ###-###-#### | ||
| Healthcare Partners Medical Group (Bacchus), Ltd. | Nevada | 88-0213519 | ||
| HealthCare Partners Medical Group, Inc. | California | 95 ###-###-#### | ||
| Heavener Dialysis, LLC | Delaware | 46-1550305 | ||
| Heideck Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Heron Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Heyburn Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Hialeah Kidney Dialysis, LLC | Delaware | 26-0689776 | ||
| Higbee Dialysis, LLC | Delaware | 46-0740918 | ||
| Historic Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Hochatown Dialysis, LLC | Delaware | 46-0930807 | ||
| Holiday Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Honey Dialysis, LLC | Delaware | 27-0669943 | ||
| Honeyman Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Hong Ren | Taiwan, Province Of China | N/A | ||
| Houston Acute Dialysis, L.P. | Delaware | 20-1545064 | ||
| Hugo Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Humboldt Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Hunter Dialysis, LLC | Delaware | 46-1849799 | ||
| Huntington Artificial Kidney Center, Ltd. | New York | 11 ###-###-#### | ||
| Huntington Park Dialysis, LLC | Delaware | 26-0666057 | ||
| Hunts Dialysis, LLC | Delaware | 27-0342360 | ||
| Hyattsville Dialysis, LLC | Delaware | 26-1382857 | ||
| Hyde Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| IDC—International Dialysis Centers SGPS, Unipessoal, Lda. | Portugal | N/A | ||
| IDC—International Dialysis Centers, Lda | Portugal | N/A | ||
| Indian River Dialysis Center, LLC | Delaware | 20 ###-###-#### | ||
| Ionia Dialysis, LLC | Delaware | 20 ###-###-#### | ||
| ISD Bartlett, LLC | Delaware | 27 ###-###-#### | ||
| ISD Bends Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| ISD Brandon, LLC | Delaware | 72-1343656 | ||
| ISD Buffalo Grove, LLC | Delaware | 61-1432627 | ||
| ISD Canton, LLC | Delaware | 37-1418573 | ||
| ISD Corpus Christi, LLC | Delaware | 26-0229697 | ||
| ISD I Holding Company, Inc. | Delaware | 27-1619457 | ||
| ISD II Holding Company, Inc. | Delaware | 27-1619686 | ||
| ISD Kansas City, LLC | Delaware | 26-118366 | ||
| ISD Kendallville, LLC | Delaware | 20 ###-###-#### | ||
| ISD Las Vegas, LLC | Delaware | 20 ###-###-#### | ||
| ISD Lees Summit, LLC | Delaware | 26-0334050 | ||
| ISD Pharmacy, LLC | Delaware | 26-1749557 | ||
| ISD Plainfield, LLC | Delaware | 20 ###-###-#### | ||
| ISD Renal, Inc. | Delaware | 20 ###-###-#### | ||
| ISD Schaumburg, LLC | Delaware | 32-0080776 | ||
| ISD Spring Valley, LLC | Delaware | 45-1857925 | ||
| ISD Summit Renal Care, LLC | Ohio | 62-1748058 |
Schedule B-2-7
| ISD Trenton, LLC | Delaware | 26-1223747 | ||
| J.E.T. New Orleans East Dialysis, LLC | Delaware | 26-0494663 | ||
| Jacinto Dialysis, LLC | Delaware | 46-0758959 | ||
| Jedburg Dialysis, LLC | Delaware | 26-1808390 | ||
| Joliet Dialysis, LLC | Delaware | 26-1117186 | ||
| Joshua Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| JSA Professional Association | Florida | 65-1280664 | ||
| Kamiah Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Kavett Dialysis, LLC | Delaware | 46-1223728 | ||
| Kearn Dialysis, LLC | Delaware | 27-1823160 | ||
| Keller Dialysis, LLC | Delaware | 27-1822963 | ||
| Kenai Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Kerricher Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Keystone Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Kidney Centers of Michigan, L.L.C. | Delaware | 20-0091149 | ||
| Kidney Home Center, LLC | Delaware | 26 ###-###-#### | ||
| Kimball Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Kings Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Kinswa Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Kobuk Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Lakeshore Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Lakeside Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Landing Dialysis, LLC | Delaware | 45-0985307 | ||
| Landsford Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Lanier Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Lapham Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Las Olas De Sequoia, LLC | Delaware | 90-0867857 | ||
| Las Vegas Pediatric Dialysis, LLC | Delaware | 26-1269919 | ||
| Lasalle Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Lassen Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Lathrop Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Latrobe Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Lawrenceburg Dialysis, LLC | Delaware | 20-0284135 | ||
| Leasburg Dialysis, LLC | Delaware | 37-1637560 | ||
| Leo Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Lexington Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Lifeline Pensacola, LLC | Delaware | 30-0757694 | ||
| Lifeline Vascular Access Network, LLC | Delaware | 26-0231059 | ||
| Lifeline Vascular Birmingham, Inc. | Delaware | 45-1061509 | ||
| Lifeline Vascular Center- Albany, LLC | Delaware | 90-0899519 | ||
| Lifeline Vascular Center- Niceville, LLC | Delaware | 36 ###-###-#### | ||
| Lifeline Vascular Center Of South Orlando, LLC | Delaware | 80-0840413 | ||
| Lifeline Vascular Center- Orlando, LLC | Delaware | 90-0854214 | ||
| Lighthouse Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Limon Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Lincolnton Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Little Rock Dialysis Centers, LLC | Delaware | 20 ###-###-#### | ||
| Livingston Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Llano Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Lockhart Dialysis, LLC | Delaware | 45 ###-###-#### |
Schedule B-2-8
| Lockport Dialysis, LLC | Delaware | 26-1117337 | ||
| Lone Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Long Beach Dialysis Center, LLC | Delaware | 20 ###-###-#### | ||
| Longworth Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Lord Baltimore Dialysis, LLC | Delaware | 20 ###-###-#### | ||
| Lory Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Los Angeles Dialysis Center | California | 93-0990123 | ||
| Los Arcos Dialysis, LLC | Delaware | 27-0342298 | ||
| Loup Dialysis, LLC | Delaware | 27-0889026 | ||
| Lourdes Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Lowden Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Lurleen Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Lyndon Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Mackinaw Dialysis, LLC | California | 46 ###-###-#### | ||
| Madison Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Magnolia Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Magoffin Dialysis, LLC | Delaware | 46-0998128 | ||
| Mahoney Dialysis, LLC | Delaware | 46-1713759 | ||
| Mammoth Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Manchester Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Manito Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Manzano Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Maples Dialysis, LLC | Delaware | 27-0488857 | ||
| Marlton Dialysis Center, LLC | Delaware | 20 ###-###-#### | ||
| Marseille Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Martin Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Marysville Dialysis Center, LLC | Delaware | 74 ###-###-#### | ||
| Mayfield Dialysis, LLC | Delaware | 26-1648870 | ||
| Mazonia Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Meadows Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Memorial Dialysis Center, L.P. | Delaware | 20 ###-###-#### | ||
| Mena Dialysis Center, LLC | Delaware | 20 ###-###-#### | ||
| Mendocino Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Meridian Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Mesilla Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Mid-City New Orleans Dialysis Center, LLC | Delaware | 20-1680408 | ||
| Middlesex Dialysis Center, LLC | Delaware | 62-1817596 | ||
| Milo Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Minam Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Miramar Dialysis Center, LLC | Delaware | 26-0230798 | ||
| Mission Dialysis Services, LLC | Delaware | 26 ###-###-#### | ||
| Mocca Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Modesto Dialysis, LLC | Delaware | 26-0494766 | ||
| Molera Dialysis, LLC | Delaware | 46-0616516 | ||
| Monahans Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Moncrief Dialysis Center/Total Renal Care Limited Partnership | Delaware | 91-1841248 | ||
| Monte Perla Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Morro Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Mosaic Management Services, Inc. | California | 20 ###-###-#### | ||
| Mountain West Dialysis Services, LLC | Delaware | 26 ###-###-#### |
Schedule B-2-9
| Mulgee Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Musgrove Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Muskogee Dialysis, LLC | Delaware | 20-1242151 | ||
| MVZ DaVita Braunschweig GmbH | Germany | N/A | ||
| MVZ DaVita Dusseldorf GmbH | Germany | N/A | ||
| MVZ Dresden Betriebs GmbH | Germany | N/A | ||
| Nadell Dialysis, LLC | Delaware | 46-1144250 | ||
| National Trail Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Natomas Dialysis, LLC | Delaware | 20 ###-###-#### | ||
| Navarro Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Neff Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| New Bay Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| New Castle Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| New Hope Dialysis, LLC | Delaware | 20 ###-###-#### | ||
| New Springs Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Nisene Dialysis, LLC | Delaware | 46-1855753 | ||
| Nolia Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Norte Dialysis, LLC | Delaware | 46-1725138 | ||
| North Austin Dialysis, LLC | Delaware | 20 ###-###-#### | ||
| Northridge Medical Services Group, Incorporated | California | 36 ###-###-#### | ||
| Northshore Dialysis, LLC | Delaware | 46-1452555 | ||
| Northwest Arkansas Kidney Centers, LLC | Delaware | 26-1383081 | ||
| Northwest Tucson Dialysis, LLC | Delaware | 26-0775546 | ||
| NTKC Management, L.L.C. | Texas | 26-0573065 | ||
| Nuevo Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Oakes Dialysis, LLC | Delaware | 26-1504946 | ||
| Oasis Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Ohio River Dialysis, LLC | Delaware | 20 ###-###-#### | ||
| Okanogan Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Olive Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Olympic Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Ontario Dialysis Center, LLC | Delaware | 20-1757176 | ||
| Open Access Lifeline, LLC | Delaware | 26-0334277 | ||
| Open Access Sonography, Inc. | Florida | 59 ###-###-#### | ||
| Orange Dialysis, LLC | California | 01-0721696 | ||
| Ordust Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Oriello Dialysis, LLC | New York | 46 ###-###-#### | ||
| Osage Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Owasso Dialysis, LLC | Delaware | 26-0494334 | ||
| Pacheco Dialysis, LLC | Delaware | 46-0740809 | ||
| Pacific Coast Dialysis Center | California | 95 ###-###-#### | ||
| Pacific Dialysis Partnership | Guam | 66-0526846 | ||
| Pacific Dialysis, LLC | Delaware | 26-1383151 | ||
| Paladina Health Group Of Texas | Texas | 46-1600784 | ||
| Paladina Health Group of Washington, P.C. | Washington | 45 ###-###-#### | ||
| Paladina Health, LLC | Delaware | 45 ###-###-#### | ||
| Palmetto Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Palomar Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Panola Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Parker Dialysis, LLC | Delaware | 26 ###-###-#### |
Schedule B-2-10
| Parkside Dialysis, LLC | Delaware | 46-1713578 | ||
| Patch Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Patoka Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| PDI Holdings, Inc. | Delaware | 23 ###-###-#### | ||
| Peaks Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Pearl Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Pedernales Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Pekin Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Percha Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Perry County Dialysis, LLC | Delaware | 26-1757708 | ||
| Pfeiffer Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Physician Associates of the Greater San Gabriel Valley, a Medical Group, Inc. | California | 95 ###-###-#### | ||
| Physicians Dialysis of Houston, LLP | Texas | 14-1861585 | ||
| Physicians Dialysis of Lancaster, LLC | Pennsylvania | 46-0499619 | ||
| Physicians Dialysis of Newark, LLC | New Jersey | 02-0535949 | ||
| Pible Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Pike Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Pine Dialysis, LLC | Delaware | 46-0736520 | ||
| Pittsburgh Dialysis Partners, LLC | Delaware | 26-0152600 | ||
| Plaine Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Plateau Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Platte Dialysis, LLC | Delaware | 27-0670106 | ||
| Plumas Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Pobello Dialysis, LLC | Delaware | 46-1496882 | ||
| Poinsett Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Pointe Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Pokagon Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Ponca Dialysis, LLC | Delaware | 46-1136745 | ||
| Ponderosa Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Pooler Dialysis, LLC | Delaware | 26-0230854 | ||
| Portola Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Powerton Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Priday Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Princeton Dialysis, LLC | Delaware | 26-1825946 | ||
| Prineville Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Prings Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Pruneau Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Quality Dialysis Care Sdn. Bhd. | Malaysia | N/A | ||
| Quincy Dialysis, LLC | Delaware | 26-1504781 | ||
| Rainer Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Rancho Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Rayburn Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Red Willow Dialysis, LLC | Delaware | 27-0887633 | ||
| Redcliff Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Redwood Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Reef Dialysis, LLC | Delaware | 46-0554920 | ||
| Refuge Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Renaissance Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Renal Clinic Of Houston, LLC | Delaware | 26-1538547 |
Schedule B-2-11
| Reno Avenue Dialysis, LLC | Delaware | 26-1928706 | ||
| Rickwood Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Riddle Dialysis, LLC | Delaware | 20 ###-###-#### | ||
| Ridgeland Dialysis, LLC | Delaware | 26-1928516 | ||
| Rio Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Ripley Dialysis, LLC | Delaware | 26-1538677 | ||
| Rita Ranch Dialysis, LLC | Delaware | 26-1928730 | ||
| River Valley Dialysis, LLC | Delaware | 20 ###-###-#### | ||
| RNA—DaVita Dialysis, LLC | Delaware | 20 ###-###-#### | ||
| Roaring Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Robinson Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Rochester Dialysis Center, LLC | Delaware | 20 ###-###-#### | ||
| Roose Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Ross Clark Circle Dialysis, LLC | Delaware | 26-1757995 | ||
| Roushe Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Royale Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| RTC Holdings, Inc. | Delaware | 51-0340369 | ||
| RTC TN, Inc. | Delaware | 51-0378828 | ||
| Rusk Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Russell Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Rye Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Saddleback Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| SafeHarbor Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Saguaro Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Sahara Dialysis, LLC | Delaware | 46-0697839 | ||
| SAKDC-DaVita Dialysis Partners, L.P. | Delaware | 20 ###-###-#### | ||
| Salisbury Dialysis, LLC | Delaware | 26-1209451 | ||
| San Gabriel Valley Partnership | California | 94 ###-###-#### | ||
| San Marcos Dialysis, LLC | Delaware | 26-0494529 | ||
| Sandlin Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Sands Dialysis, LLC | Delaware | 27-1587050 | ||
| Sandusky Dialysis, LLC | Delaware | 20 ###-###-#### | ||
| Santa Fe Springs Dialysis, LLC | Delaware | 20 ###-###-#### | ||
| Santee Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Santiam Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Santo Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Sapelo Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| SE Ohio Regional Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Seabay Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Seasons Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Seminole Dialysis, LLC | Delaware | 46-1501694 | ||
| Seneca Dialysis, LLC | Delaware | 20 ###-###-#### | ||
| Shadow Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Shayano Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Shelby Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Sherman Dialysis, LLC | Delaware | 27-0888094 | ||
| Shoals Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Shone Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Siena Dialysis Center, LLC | Delaware | 20 ###-###-#### | ||
| Silverwood Dialysis, LLC | Delaware | 46 ###-###-#### |
Schedule B-2-12
| Simcoe Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Simeon Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Skagit Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Snowdale Dialysis, LLC | Delaware | 46-1505881 | ||
| Soledad Dialysis Center, LLC | Delaware | 02-0614455 | ||
| Somerville Dialysis Center, LLC | Delaware | 26-0665984 | ||
| South Central Florida Dialysis Partners, LLC | Delaware | 20 ###-###-#### | ||
| South Fork Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| South Shore Dialysis Center, L.P. | Delaware | 20 ###-###-#### | ||
| Southcrest Dialysis, LLC | Delaware | 74 ###-###-#### | ||
| Southeast Florida Dialysis, LLC | Delaware | 20 ###-###-#### | ||
| Southeastern Indiana Dialysis, LLC | Delaware | 26-1928669 | ||
| Southern Colorado Joint Ventures, LLC | Delaware | 20 ###-###-#### | ||
| Southern Hills Dialysis Center, LLC | Delaware | 20-0315546 | ||
| Southlake Dialysis, LLC | Delaware | 46-1047611 | ||
| Southwest Indiana Dialysis, LLC | Delaware | 26-1649377 | ||
| Southwestern Tennessee Dialysis, LLC | Delaware | 26-1196508 | ||
| Sparks Dialysis, LLC | Delaware | 27-1672411 | ||
| Sprewell Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Springs Dialysis, LLC | Delaware | 46-0579874 | ||
| St. Luke’s Dialysis, LLC | Delaware | 20 ###-###-#### | ||
| Star Dialysis, LLC | Delaware | 27-0342502 | ||
| Steam Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Steele Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Stevenson Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Stewart Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Stines Dialysis, LLC | Delaware | 46-1356067 | ||
| Storrie Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Strongsville Dialysis, LLC | Delaware | 20 ###-###-#### | ||
| Studeinezentrum Karlstrasse GmbH | Germany | N/A | ||
| Sugarite Dialysis, LLC | Delaware | 45-1966865 | ||
| Sugarloaf Dialysis, LLC | Delaware | 20 ###-###-#### | ||
| Summer Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Summit Dialysis Center, L.P. | Delaware | 20-1345201 | ||
| Sun City Dialysis Center, L.L.C. | Delaware | 20-0068957 | ||
| Sun City West Dialysis Center, LLC | Delaware | 26-0331340 | ||
| Sunrays Dialysis, LLC | Delaware | 27-0626229 | ||
| Sunset Dialysis, LLC | Delaware | 26-1383037 | ||
| Swanson Dialysis, LLC | Delaware | 27-1823545 | ||
| Sylvania Dialysis Center, LLC | Delaware | 26-1116957 | ||
| Talbert Medical Group, Inc. | California | 93-1172065 | ||
| Talbert Surgical Associates, LLC | California | 26 ###-###-#### | ||
| Talimena Dialysis, LLC | Delaware | 46-1329593 | ||
| Tannor Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Taylor Dialysis, LLC | Delaware | 26-1649744 | ||
| Tel-Huron Dialysis, LLC | Delaware | 26-0492001 | ||
| Tennessee Valley Dialysis Center, LLC | Delaware | 20 ###-###-#### | ||
| Teton Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| The Woodlands Dialysis Center, LP | Delaware | 20 ###-###-#### | ||
| Topanga Dialysis, LLC | Delaware | 26 ###-###-#### |
Schedule B-2-13
| Tortugas Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Total Renal Care of North Carolina, LLC | Delaware | 91-1868873 | ||
| Total Renal Care of Utah, L.L.C. | Delaware | 87-0570546 | ||
| Total Renal Care/Crystal River Dialysis, L.C. | Florida | 93-1228985 | ||
| Total Renal Care/Eaton Canyon Dialysis Center Partnership | California | 95 ###-###-#### | ||
| Total Renal Care/Peralta Renal Center Partnership | California | 94 ###-###-#### | ||
| Total Renal Care/Piedmont Dialysis Center Partnership | California | 94 ###-###-#### | ||
| Townsend Dialysis, LLC | Delaware | 46-0603077 | ||
| Transmountain Dialysis, L.P. | Delaware | 86-1120659 | ||
| TRC—Four Corners Dialysis Clinics, L.L.C. | New Mexico | 36 ###-###-#### | ||
| TRC—Petersburg, LLC | Delaware | 91-1887759 | ||
| TRC El Paso Limited Partnership | Delaware | 93-1229060 | ||
| TRC-Dyker Heights, L.P. | New York | 91 ###-###-#### | ||
| TRC-Georgetown Regional Dialysis, LLC | District Of Columbia | 91-1931209 | ||
| Tross Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| True North DC, LLC | New York | 46 ###-###-#### | ||
| Tugaloo Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Tugman Dialysis, LLC | Delaware | 35 ###-###-#### | ||
| Tulsa Dialysis, LLC | Delaware | 32-0000319 | ||
| Tumalo Dialysis, LLC | Delaware | 45-1344802 | ||
| Turlock Dialysis Center, LLC | Delaware | 26-0460709 | ||
| Tustin Dialysis Center, LLC | Delaware | 02-0614431 | ||
| Tyler Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Ukiah Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Unicoi Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Union City Dialysis, LLC | Delaware | 26-1649025 | ||
| University Dialysis Center, LLC | Delaware | 20 ###-###-#### | ||
| Upper Valley Dialysis, L.P. | Delaware | 20 ###-###-#### | ||
| Urbana Dialysis, LLC | Delaware | 26-1538755 | ||
| USC-DaVita Dialysis Center, LLC | California | 20 ###-###-#### | ||
| UT Southwestern DVA Healthcare, L.L.P. | Texas | 62-1634350 | ||
| Valley Springs Dialysis, LLC | Delaware | 26-1117691 | ||
| Verde Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Versailles Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Victory Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Villanueva Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Vogel Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Wakoni Dialysis, LLC | Delaware | 46-1505881 | ||
| Walcott Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Waldorf Dialysis, LLC | Delaware | 26-1505006 | ||
| Walker Dialysis, LLC | Delaware | 27-1953130 | ||
| Wallowa Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Walton Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Wauseon Dialysis, LLC | Delaware | 26-1928603 | ||
| Waycross Dialysis, LLC | Delaware | 26-1383069 | ||
| Weldon Dialysis, LLC | California | 46 ###-###-#### | ||
| Wesley Chapel Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| West Broomfield Dialysis, LLC | Delaware | 26-1117100 | ||
| West Elk Grove Dialysis, LLC | Delaware | 26-0689726 | ||
| West Monroe Dialysis, LLC | Delaware | 26-0231256 |
Schedule B-2-14
| West Pensacola Dialysis, LLC | Delaware | 26-1115381 | ||
| West Sacramento Dialysis, LLC | Delaware | 20 ###-###-#### | ||
| Western Nevada Dialysis, LLC | Delaware | 26-1269936 | ||
| Weston Dialysis Center, LLC | Delaware | 82-0574862 | ||
| Westview Dialysis, LLC | Delaware | 20 ###-###-#### | ||
| Whitney Dialysis, LLC | Delaware | 27 ###-###-#### | ||
| Wilder Dialysis, LLC | Delaware | 27-0342457 | ||
| Willowbrook Dialysis Center, L.P. | Delaware | 20 ###-###-#### | ||
| Windcreek Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Winds Dialysis, LLC | Delaware | 27-0888875 | ||
| Winster Dialysis, LLC | Delaware | 46-0924534 | ||
| Wood Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Wooten Dialysis, LLC | Delaware | 45 ###-###-#### | ||
| Wyandotte Central Dialysis, LLC | Delaware | 20 ###-###-#### | ||
| Wyler Dialysis, LLC | Delaware | 26 ###-###-#### | ||
| Xiang You | Taiwan, Province Of China | N/A | ||
| Yargol Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Ybor City Dialysis, LLC | Delaware | 26-0460800 | ||
| Yucaipa Dialysis, LLC | Delaware | 26-0460763 | ||
| Zara Dialysis, LLC | Delaware | 46 ###-###-#### | ||
| Zephyrhills Dialysis Center, LLC | Delaware | 26 ###-###-#### |
Schedule B-2-15
SCHEDULE B-3
Significant Subsidiaries
| Significant Subsidiaries
| ||
| Name of Entity | Jurisdiction of Formation | |
| Dialysis Holdings, Inc. | Delaware | |
| DVA Healthcare Renal Care, Inc. | Nevada | |
| DVA Renal Healthcare, Inc. | Tennessee | |
| HealthCare Partners Holdings, LLC | California | |
| HealthCare Partners, LLC | California | |
| JSA Health Care Corporation | Delaware | |
| JSA Holdings, Inc. | Delaware | |
| Renal Treatment Centers, Inc. | Delaware | |
| Total Renal Care, Inc. | California | |
Schedule B-3-1
SCHEDULE C
Issuer Free Writing Prospectuses
Final Term Sheet dated as of June 10, 2014 filed pursuant to Rule 433.
Schedule C-1
Filed pursuant to Rule 433
Registration Statement 333-196630
Final Term Sheet
June 10, 2014
Schedule D
Final Term Sheet
$1,750,000,000
DaVita HealthCare Partners Inc.
5.125% Senior Notes due 2024
June 10, 2014
This final term sheet supplements, and should be read in conjunction with, DaVita HealthCare Partners Inc.’s preliminary prospectus supplement dated June 10, 2014 (the “Preliminary Prospectus Supplement”) and accompanying prospectus dated June 10, 2014 and the documents incorporated by reference therein. The information in this final term sheet supplements the Preliminary Prospectus Supplement and supersedes the information in the Preliminary Prospectus Supplement to the extent it is inconsistent with the information in the Preliminary Prospectus Supplement. Terms used herein but not defined herein shall have the respective meanings as set forth in the Preliminary Prospectus Supplement.
| Issuer: | DaVita HealthCare Partners Inc. (the “Issuer”) | |
| Title of Securities: | 5.125% Senior Notes due 2024 (the “Notes”) | |
| Aggregate Offering Size: | $1,750,000,000 | |
| Net Proceeds to Issuer before Expenses: | $1,728,125,000 | |
| Maturity Date: | July 15, 2024 | |
| Coupon: | 5.125% per annum, accruing from June 13, 2014 | |
| Offering Price: | 100.000%, plus accrued interest from June 13, 2014, if any | |
| Interest Payment Dates: | January 15 and July 15 | |
| First Interest Payment Date: | January 15, 2015 | |
| Optional Redemption: | At any time prior to July 15, 2019, the Issuer may redeem the Notes at its option, in whole or from time to time in part, at a “make whole” redemption price, plus accrued and unpaid interest, if any, to the date of redemption, as set forth in the Preliminary Prospectus Supplement.
At any time on or after July 15, 2019, the Issuer may redeem the Notes at its option, in whole or from time to time in part, at the following redemption prices (expressed as a percentage of principal amount), plus accrued and unpaid interest, if any, to the redemption date, if redeemed during the 12-month period commencing on July 15 of the years set forth below: | |
| Year | Price | |||||
| 2019 | 102.563 | % | ||||
| 2020 | 101.708 | % | ||||
| 2021 | 100.854 | % | ||||
| 2022 and thereafter | 100.000 | % | ||||
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| Optional Redemption with Net Cash Proceeds of Equity Offerings: | At any time prior to July 15, 2017, the Issuer may redeem at its option, on one or more occasions, up to 35% of the original aggregate principal amount of the Notes (including the original aggregate principal amount of any Additional Notes) at 105.125%, plus accrued and unpaid interest, if any, to the redemption date; provided that at least 65% of the original aggregate principal amount of the Notes (including the original aggregate principal amount of any Additional Notes) remains outstanding after each such redemption. | |
| Change of Control: | 101%, plus accrued and unpaid interest, if any, to the Change of Control Payment Date | |
| Joint Book-Running Managers: | Wells Fargo Securities, LLC Barclays Capital Inc. Credit Suisse Securities (USA) LLC Goldman, Sachs & Co. J.P. Morgan Securities LLC Merrill Lynch, Pierce, Fenner & Smith Incorporated Morgan Stanley & Co. LLC SunTrust Robinson Humphrey, Inc. | |
| Co-managers: | Credit Agricole Securities (USA) Inc. Mitsubishi UFJ Securities (USA), Inc. Scotia Capital (USA) Inc. SMBC Nikko Securities America, Inc. | |
| CUSIP/ISIN Numbers: | CUSIP: 23918K AQ1 ISIN: US23918KAQ13 | |
| Trade Date: | June 10, 2014 | |
| Settlement Date: | June 13, 2014 (T+3) | |
| Use of Proceeds: | We intend to use the net proceeds from this offering to repay, concurrently with the closing of this offering, a portion of our Term Loan B and Term Loan B-2 borrowings outstanding under our current senior secured credit facilities and to pay fees and expenses related to this offering. Pending application of the net proceeds from the offering of the notes for the purposes described above, we may temporarily invest the net proceeds in short-term investments. | |
The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus, when available, if you request it by contacting (i) Wells Fargo Securities, LLC at (800) ###-###-#### or ***@***, (ii) Barclays Capital Inc. at (888) ###-###-#### or Barclaysprospectus@ broadridge.com, (iii) BofA Merrill Lynch at 222 Broadway, New York, NY 10038, Attention: Prospectus Department, or email ***@***, (iv) Credit Suisse Securities (USA) LLC at (800) ###-###-#### or ***@***, (v) Goldman, Sachs & Co. at (866) ###-###-#### or ***@***, (vi) J.P. Morgan Securities LLC at (800) ###-###-####, (vii) Morgan Stanley & Co. LLC at (866) ###-###-#### and (viii) SunTrust Robinson Humphrey, Inc. at (404) ###-###-####.
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