HomeMy WebLinkAbout01-3366 · · COMMONWEALTH OF PENNSYLVANIA - UCC1
PJ~i~-~ ,'~ ,';~-.~ ~IN~
~.,;,~,, 4~me (last name filsz il' nd vdual) and mailing addmls- Ul~ C~mltt~lllil C~ FeEt UCC-I
Rend Tre~rnent Centers-Norlh,=,~. Inc.
212,50 Hawthorne Boule~Grd, Suite 800 rd.Z Ne. ~.:,i. ii,la:~ by filing omcer)~ Dlte,'Llme, ~ O~ee (slampe~
Torralee, CA g0503 ~/"-~---~}"~A/ ~.;:. ",.:: :. ,,-.-r,......,/~D/~c:l.,~ o, ..
01 JU -I
and is to he filed with the (check applicable box):
r-I Secmmy o~'the CommonweaJth.
]~Pm~henee~ of Cuml:x~la~cI County.
I-I red ealale mcm~ls of Court.
for securily interest information:
Baqk of America, N.A., as P.,oll~erd Agent COLLATB~L
I nc~nce Cerl(Er :,~. "~; _7..-'~.--- by item and/or type:
101 North T~yon ~ F:;~see Sc:heduleA attached hereto.
· ' Charlotte, NC 28255
A--;i.-.a~) et' &~lmd 1'l rl~ mime(i) (lasl name fiTst ifindivdual) and
address For security intetesl in£onnation:
~ l~el ot'~ariim (check ir applicable): [] (check only il'desired) Products of'the collatem] am aim covered.
I-Ille [emls 'Dcbtm" nad "Secured Paty" mm1 "Lessee" and 'Lessor,' !~'"'~J' ~elited re,ti e~tate, it'applicab]e: The collamral is, or includes (check appmp;iate box(es))-
3
~I:r~-uI~TY PARTY ~IGNATURB[II) ~e I'ollowing ma] estete:
d. already subject to a secudtyin~ereslill another judsdicfion- ii o~,...=aTU
5ec~red Z~rt~ $1~mst~re(s) _1 b t 1
CT CORPORATION SYSTEM
^tt~: Eligab~th Cumm~z~s
]3~0 Trca! ~lvd., Suite ]00
Walnut Creek, CA 94~6
(800)874-8820
Schedule A
This Financing Statement is being delivered in connection with the Credit Agreement dated as of May 3. 2001, among DaVita
Inc., Bank of America, N.A., as agent, and various financial iustitutions (as amended, restated, supplemented or othenvise
modified from time to time, the "Cred~,,fg~'oo~fo;f~") and various collateral documents delivered in connection therewith and
covers all of Debtor's right, title and interest in and to the following, whether now owned or hereinafter acquired (the
"Collateral'):
(a) all equipment in all of its forms, all fixtures and all parts thereof'and all accessions thereto;
(b) all inventory in all of its forms and all accessions thereto and products thereof and documents
therefor;
(c) all accounts, chattel paper, instruments, general intangibles (other than general intang~les
consisting of Security Collateral, Intellectual Property Collateral or Agreement Collateral which are included as
"Collateral" in the applicable provisions of this Schedule A) and other obligations of any kind, whether or not arising
out of or in connection with the sale or lease of goods or the rendering of services and whether or not earned by
performance, and all rights now or hereafter existing in and to all security agreements, leases and other contracts
securing or otherwise relating to any such accounts, chattel paper, instruments, general intangibles or obligations (any
and all such accounts, chattel paper, instruments, general intangibles and obligations, to the extent not refer~d to in
clause (d), (e) or (f) below, being the "Receivables', and any and all such security agreements, leases and other
contracts being the "Related Contracts"). "Receivables" shall include, but not be limited to, any accounts, contract
fights, notes, &aris and other obligations or rights Io payment of every kind or description now or any time hereafter
arising, directly or indirectly, out of the provision of Dialysis Services and/or the provision of Ancillary Services
specifically including, but not limited to, all accounts receivable and rights to payment through federal, state or local
governmental programs, including without limitation, all Govenunentsl Health Receivables, all other third-party payer
programs and health cam insurance receivables and other private pay receivables. As used herein, (i) "Dialysis
Services" means hemodialysis services and peritoneal dialysis services, hemoperfusion, plasmapheresis, continuous
arteriovenous hemofiltratinn and bio-medical services related to the foregoing; (ii) ",4n¢illarj/Services" means
services relating to the needs of patients with "End Stage Renal Disease" and ancillary to the provision of Dialysis
Services, including, but not limited to, the administration of erythropoictin, intradialytic parenteral nutrition, bone
densitometry studies, EKGs, nerve conduction studies, Doppler Flow Testing, blood transfusions, pharmacy and
laboratory services, technical services with respect to equipment used in connection with the provision of Dialysis
Services and management services with respect to the provision of Dialysis Services; (iii) "Governmental HeallA
Receivables" means Medicaid Receivables, Medicare Receivables or VA Receivables; (iv) "Medicaid Receivable"
means any Receivable with respect to which the obligor is a state governmental authority (or agent thereof) obligated
to pay, pursuant to federal or state Medicaid program statutes or regulations, for services rendered to eligible
beneficiaries thereunder; (v) "Medicare Receivable" means any Receivable with respect to which the obligor is a
federal governmental authority (or agent thereof) obligated to pay, pursuant to federal Medicare Program statutes or
regulations, for services rendered to eligt'ble heneficlaries thereunder and (vi) "PA Receivable" means any Receivable
with respect to which the obligor is the Veterans' Administration or any successor thereto (or any agent thereof);
(d) the following (the "$ecuriO~ Collatera£'):
(i) the shares of stock owned by Debtor (the "Initial Pledged SAares') and the certificates, if
any, representing the Initial Pledged Shares, and all dividends, cash, instruments and other property from
time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the
Initial Pledged Shares;
(ii) the indebtedness owned by Debtor (the "Initial Pledged Debf') and the instruments, if any,
evidencing the Initial Pledged Debt, and all interest, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in exchange for any or aH of the Xnitial Pledged
Debt;
(iii) ull additional shares of stock from thne to time acquired by Debtor in any manner (such
shares, together with the Initial Pledged Shares, being the "Pledged $/ro~s"), and the certificates, if any,
representing such additional she~s, and all dividends, cash, instruments and other properly from time to time
received, receivable or otherwise distributed in respect of or in exchange for any or all of such sintres;
SFDOCS01/2056~93 1
provided, that if the issuer of any of soch Pledged Shares is a con~ollad foreign cosporation (used hereinafrer
as such tetra is defined in Section 975(a) or a successor provision of the Internal Revenue Code), the Pledged
Shares shall not include any shares of stock of such issuer in excess of the numbur of shares of such issuer
possessing up ~o but not exceeding 65% of the voting power of all classes of capitsl stock entitled to vote of
such issuer, and ali dividends, cash, wanants, rights, iustmments and other propen'y or proceeds from t/me to
time received, receivable or otherwise dishibuted in respect of or in exchange for any or all of such Pledged
Shams;
(iv) all additional indebtedness from time to time owed to Debtor (such indebtedness, together
with the Initial Pledged Debt, being the "Pledged Debt") and the ins~uments, if any, evidencing such
indebtedness, and all interest, cash, iustmmeuts and other property from time to time received, receivable or
otherwise dis~r~uted in respect of or in exchange for any or all of such indebtedness; and
(v) all other inveslment property in which Debtor has now, or acquires from time to time
hereafter, any right, title or interest in any manner, and the certificates or iuslruments, if any, representing or
evidencing such invesUnent property, and all dividends, interest, disuibutinus, value, cash, ius~rumcots and
other property from time to time received, receivable or othe~,ise distributed in respect of or in exchange for
any or all of soch investment property;
(e) each of the agreements to which Debtor is now or may hereafter become a party, in each case as
such agreements may be amended, amended and restated, supplemented or otherwise modified from time to time
(collectively, the "Assigned~gr~emen~"), including, without limitation, (i) all rights of Debtor to receive moneys
due and to become due under or pursuant to the Assigned Agreements, (ii) all rights of Dchtor to receive proceeds of
any insurance, indenmity, warranty or guaranty with respect to the Assigned Agreements, (iii) claims of Debtor for
dan~ges arising out of or for breach of or default under the Assigned Agreements and (iv) the right of Debtor to
terminate the Assigned AgrecmenLs, to perform thereunder and to compel performance and otherwise exercise all
remedies thereunder (all such Collateral being the "Agreement Collafera£');
(O the following (collectively, thc "Account Collateral"):
(i) the L/C Collateral Account referred to in the Security Agreement referred to in thc Credit.
Agreement, all financial assets from time to time credited to the L/C Collateral Account, and all dividends,
interest, cash, instruments and other property from time to time received, rcccivablc or otherwise distributed
in respect of or in exchange for any or all of such financial assets;
(ii) all other deposit accounts of Debtor from time to time. all funds held therein and all
certificates and instroanents, if any, from time to time representing or evidencing such deposit accounts;
(iii) all notes, certificates of deposit, deposit accounts, checks and other in~munents from time
to time delivered to or otherwise possessed by thc Collateral Agent for or on behalf of Debtor, including,
without limitation, those delivered or possessed in substitution for or in addition to any or all of thc then
existing Account Collateral; and
(iv) all interest, dividends, cash, instruments and other property from time to time received,
reccivabla or otherwise disuibuted in respect of or in exchange for any or all of the then existing Account
Collateral; and
(g) the following (collectively, thc "lntdlectual Property Collateral"):
(0 all United States, international and foreign patents, patent applications and Ststotory
invention registrations, together with all reissues, divisions, continuations, condunatious-in-pat% exteusions
and reexaminations thereof, all inventions therein, all rights therein provided by international tzearies or
conventions and all improvements thereto, and all other rights ofeny kind whatsoever of Debtor accruing
thereunder or pe~aining thezmo 0he ~Patents");
(ii) all tradcn~rks (including, without limitation, service marks), certification marks, collective
marks, Irede d~ss, Ingos, domain names, product confignratious, trade names, business names, corporate
names and other source identifiers, whether or not registered, whether ~tly in use or not, including,
without limitation, ali common law rights and regis~ttions and applications for registration thereof, and all
other marks registenxl in the U.S. Patent and Trademark Office or in any office or agency of any State or
S1~X:S011205~9.3 2
Territory of the United States or any fore~gn country (but axcluding any Umted States mtunt to-nsc
trademark application prior to th~ filing and acceptance of a Statement of Use or an Amendment to allege use
trademark application under applicable law), and all rights thereto pro.y ..
conventions, all reissues, cxtenstons and renewals of any of the foregotng, together ra each case vath thc
goodwill of thc business connocted thercMth and symbohzed thereby, and all nghts corresponding thereto
throughout the world and all other rights of any kind whatsoever of Debtor aecromg thereunder or pertauung
thereto (the "Trodemaris");
·hts co iht applications, copyright registrations and like protections in each
iii) all copyng , pyr g ~ot. ..... ished or ununblished, any renewals or
work of a(~thorship, whether statutory or common law, wh~ ..... ~ubl -f~om, or relating to works
extensions thereof, all copyrights of works based on, incorporated in, derived
covered by such copyrights, together with all rights coz~esponding thereto throughout the world and all other
rights of any kind whatsoever of Debtor accruing thereunder or p~ining thereto (the 'Copyrigk~s");
· ential and ropriela~ information, including, without limitation, know-how, trade
(tv). al! con_fi~___.~..~,;~..P~rocessas and techniques, inventions, research at,d development
information, technical data, financial, marketing and business data, pricing and cost information, business
and marketing plans and customer and supplier lists and information (the "T~de
ter software ~rogramS and databases (including, without limitation, source code,
(v) all compu - ,- ....... -~ ~ocumentatiun and materials relating
object co~l¢ and all related applications and data mesl, tu'mwm~ m~ ~, . ' service
thereto, and all rights with respect to the foregoing, together with any and all options, warranties,
contracts, program services, test rights, maintenance rights, improvement rights, renewal fights and
indemnifications and any substitutions, replacements, additions or model conversions of any of the foregoing
(the "Computer
· icense a reemcnts, pcnmts, authorizations and franchise, s, wheth, c.r w. lt.h re,s~.e~t to thc
(vi). ,all 1.,, - !o, Trsde Secrets or Computer Sofrware, or witll respec, ~o mc
Patents, Traocmarr, s, ~opyng,,,.~, ....
txademarks, copyrights, trade secrets, computer sot~vare or other proprietary right of any other Person, and
all incornc, royalties and other payments now or hercaftsr due and/or payable with respect thereto, subject, in
each case, to thc terms of such license a~reemcnts, permits, authorizations and franchises, (thc L~ce#s ),
and
(vii) any and all claims for damages for past, presunt and future infringement, misappropriation
or breach with respect to thc patents, Trademarks, Copyrights, Trade Secrets, Computer Software or
Licenses, with the right, but not the obhgatlon, to sue for and collect, or otherwise recover, such damages;
(h) all procaeds of any and all of thc Collateral (including, without limi?tio .n, ntP~Cod~t.~.~c~mu~cd,
property of the types described in clauses (a) through (g) and this clause (h)) an~, to tue exlcn no
all (i) payments under insm'ancc (whether or not thc Collateral Agent is thc loss payee ~f), or any indenmity,
warranty or guaranty, payable by reason of loss or damage to or otherwise with respect to any of the foregoing
Collateral and (ii) cash.
Notwitha~unding anything hereto to thc contrary, tn no event shall the Collateral mchide, and thc Debtor shall
not he deemed to have granted a security interest in or pledged (i) thc assets subject to existing contracts of sale specifiC, in
Security Agreement reran'ed to in the Credit A~recmcnt, or (ii) any of the Debtor's rights or interests m any
Schedule V oftha a party or any Security Collateral (other than stock issued by wholly-
license, contract, or agreement to which thc Debtor is thereunder to the extent, but only to thc
owned Suhaidlaries of DaVita Inc.) owned by the Debtor or any of its rights or interests · result in a'brcach of the
exteat, that such a grant would, under the terms of soch license, conlract or agreement or othervase,
terms of, or constitute a default under any iicanSe, contract, or agrecmcat to which the Debtor is a pafly or any Security
Collateral (other than stock issued by wholly-owned Subsidiaries of DaVita Inc.) owned by the Debtor (other than to thc extent
that any such term would hn rendered meffcct~vc pursuant to Section 9 31 $(4) of the applicable Umform Commercrsl Code or
any other applicable law (inolndinl~ the United States Bankruptcy Code) or principles of equity); provided, that imm~lately
upon thc inoiTectiveocss, lapse or t~mniuntion of any such provision, the Collateral shall include, and thc Debtor shall he
· ' · such rights and interests as if such provision had never been hi eff..~, t.
de~d to have granted a s~:Unty interest m, all . ..
SFDOCS01 ;205629,,3
Schedule A
This Financing Statement is being delivered m connection with the Credit Agreement dated as of May 3, 2001, among DaVita
Inc, Bank of' America, N A, as agent, and various t'mancial instttuttons (as amended, restated, supplemented or otherwise
modified from time to tune, thc "Credit Agreement") and various collateral documents dehvcred ut connection therevnth and
covers all of Debtor's tight, title and interest in and to the following, whether now owned or hereinafter acquired (the
"Collateral"):
(a) all equipment in all of its formS, all fixtures and all parts thereof and all accessions thereto;
(b) all inventory in all of its forms and all accessions thereto and products thereof and documents
therefor;
ousts chattel paper, instruments, general tatung,bias (othe.r. than.ga.ne.r.at lnta. nglM~e_s.~
(c) a!l acc ' .
consisting of Security Collateral, mteuectua~ ,- ,,,t,-..., v- ,
"Collateral" in the applicable provisions of this Schedule A) and other obligations of any kind, whether or not arising
out of or in connection with thc salc or lease of goodS or the rendering of services and whether or not earned by
performance, and all rights now or hereafter existing in and to all security agrecments, leases and other contracts
scenting or otherwise relating to any such accounts, chattel paper, instruments, gancral intangiblas or obligations (any
and all such accountS, chattel paper, instmmcnts, gancral intangibles and obligations, to thc extcnt not reran'ed to in
clause (d), (e) or (0 below, being the "Receivables", and any and all such security agreements, Iceses and other
contracts being the "Related Contracts")· "Receivables" shall include, but not be limited to, any accounts, contract
rights, notcs, drafts and other obligations or rights to payment of every kind or description now or any time hereafter
arising, directly or indirectly, out of the provision of Dialysis Services and/or thc provision of Ancillary Services
specifically including, but not limited to, all accounts receivable and rights to payment through federal, state or local
including without limitation, all Govcnunental Health Receivables, all other third-patty payer
govenunctual programs, pay receivables. As used herein, (i) "Dialysis
programs and health care insurance receivables and other private , ,
· ' and pcritoncal dialysis services, hemoperfu~ion, plasmapheresis, continuous
Services" means hemodialysts servtces
arterinvenous hemofiltratinn and bio-medical services related to the foregoing; (ii) "Ancillary Services" means
scrvices relating to thc needs of patiunts with "End Stage P..cnal Disease" and ancillary to thc provision of Dialysis
Services, including, but not limited to, thc administration of etlnhropnietin, inttadialytic parenteral nutrition, bnnc
dcnsitomctrY studies, EKGs, nnrvc conduction studies, Doppler Flow Testing, blood transfusions, pharmacy and
· ' ' cs with res cct to cquipmcnt uscd in connection with the provision of Dialysis
labo .ratory s.erv,ces, tec~_[cJJ~.t~.~c~ith resoe~ to thc provision of Dialysts Services; (m)"Governmetttui Health
Services ann management
Rncelvables" means Medicaid Receivables, Medicare Rcceivablns or VA Receivables; (iv) "Medlcuitl Receivable"
· with res act to which the obligor is a state guvcmmental authority (or agent the.~, of) obligated
means any Recc.,.v_~b~}e~_~_, ...~,,. --edicaid .rem'am statutes or regulat,ons, for sorvtccs rendered to ehgibl,
to pay, pursuant to
beneficiaries thereunder; (v) "Medicare Receivable" means any Receivable with respect to which the obligor is a
fcdcrel guvcrnmcntal authority (or agent thereof) obhgated to pay, pursuant to federal Medicare program statutes or
regulations, for sorvices rendered to eligible hencficiaries thereunder and (vi) "f/,4 Receivable" means any Receivable
with respcct to which the obligor is the Veterans' Administration or any successor thc~to (or any agent thereof);
(d) thc following (thc "Securiiy Cullatero£'):
shares of stnck owned by Debtor (the "Initial Pledged Shares") and thc cartifi .catns, if
(i_)__.:__ .t~e 'nitial Pledoed Shares, and all dividends, cash, inst~umcnts and other property trom
soy, repreacutuq~ tam · t~ .'
time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the
Initial Pledged Shares;
(ii) mdcbtednnss owned by Debtor (the "Initial Pledged De/n~') and the insmunnnts, if' any,
the ' · · other ro c from time to time
evidencing the Initial Pledged Debt, and all mternst, cash, instruments and p p rty
received, mecivablc or otherwise distributed in respect of or in exchange for any or all of the Initial Pledged
Debt; .
(iii) all s ~dditional s ~ to time acqnired by Debtor in any munncr (such
shares, together with thc Initial ple~g~l,,b__ .?~...~ u[e ,,p/edged,q/ares"), and the certificates, if unY,
representing such additional shares d~ta~al]l-~--~10e~-°"a-~sh, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in exchange for any or all of such shares;
1
SFDOCS01/20~,29.3
· · f an of such Plcdsed Shares is a controlled t'orei~n co~pomtion (u~ed b~reinafter
provided, the! ~fthc ~ .s~...o _. y ..... · ........ cssor ,~mvision of thc Internal p, cvcnuC Code), the Pledged
as such term zs daf'taco m .,~cctton :~.~) v, ~ ~,,,-,, . r in excess of the number of shares of such issuer
Shares shall not inoludc shy sha~s of stuck of such ~ssucr
nceedina 65% of the ,voting power of all classes of capltsl stock entitled to vote of
~nsscssin~ up to but not e ............ nd other ,,ronen'y or proceeds from tiroe to
~uch issuer, and all dividends, cash, warrantS, ngntS, ~nsuun~,~ - r ~--
time receivcd, receivable or otherwise disuibuted in respect of or in cxcheugc for any or all of such Pledged
Shares;
· I1 additional indcbtednass [rom time to time owed to Debtor (such indcbtednoss, together
(iv) a ........... Pledeed Debf) and thc inslrumants, if any, evidencmg such
with the Initial Plcagca l.zcOt, ueutg ~nc r, ~ '
indebtednass, and all interest, cash, insmzmcnts and other prupcrty from time to time received, receivable or
otherwise distrthuted in respcct of or in exchange for any or all of snch indcbtednass; and
ther investment property in which Debtor has now, or acquires from time to time
(v) all .o ........... and thc certificates or instruments, if any, representing or
hereal~cr, any right, title or mterest m any ,,,~,-
evidencing such invcstn,.ent property, and all dividends, interest, distributions, vainc, cash, instntmcnts and
other property from time to time received, receivable or otherwise distributed in respect of or in exchange for
· any or all of snch investment p~opcrty;
(e) each of the a~recments to which De.bto~r is _no,w_or..,n~.~h, Cro~r~.bs~C~om~i~cP~r~mi~htoC~emeas
such agreements may bc amended, amended ano restateo, supp,c,,,,-,,,,. .... .
(collectively, the "Assigned Agreements"), including, without limitation, (i) all rights of Debtor to receive moneys
· .' ' to receive proceeds of
duc and to become dna under or pursuant to the Assigned Agreements, (ti) all rights of Debtor
any insurance, indemnity, warranty or guaranty with respect to thc Assigned Agreements, (iii) claims of Dcblur for
damages arising out of ur for breach of or default under thc Assigned Agreements and (iv) th~ right of Debtor to
· ' all
terminatc the Assigned Agn;cments, to perform thereunder and to compel performance and otherwise cxercxsc
remedies lhereunder (all such Collateral being the "/lgreeneent Collatera£');
(f) thc following (collectively, thc "Account Collatera£'):
c L/C Collateral Account referred to in thc Sccurit~ Agreement referred to .'.tn .?c..Cre,dit.
(i) all fiua~nCcial assets from time to time credited to thc L/C Collateral Account, and ali divluenua,
Agreement, . . . ' ' ' '
interest, cash, instruments and other property from time to t~m.c received, receivable or othervasc d~stnbuted
in respect of or in exchange for any or all of such financial assetS;
(ii) all other deposit accounts of Debtor from time to time, all funds held therein and all
certificates and instzumcnts, if any, from time to time representing or evidencing such deposit accounts;
· " Il notes certificates of deposit, deposit accounts, checks and other instruments fro.m time
(us) a - ' · -' b- the Collateral Agent for or on behalf of Debtor, inclndmg,
to time delivered to or omervasc pnsscsscu ~,
without limitation, those delivered or possnsscd in substitution for or in addition to any or all of the then
existing Account Collateral; and
i,) ,l, int s, tli de , cas ms, .meuts,nd
receivabl(~ or otherwise distributed in respect of or m exchange for any u~
Collateral; and
(g) thc following (collectively, thc "Intellectual Propert~ Colluteru£'):
(i) all United Ststes, international and foreign patents, patent applications and ~tatotory .
invention registrations, together with all reissues, divisions, continuations, continuationa-in-part, extensions
and reexaminations thereof, all inventions therein, all rights therein provided by international treaties o.r
convcntioua and all improvements thereto, and all other rights of any kind whatsoever of Debtor accmtr~
thereunder or pertainln~ thereto (the "Puteat$");
.., ., ,.:.,4,marks ~'i~-lUmna, wtrdlout in,sutton, Service marks), ccn'ification marks, collective
u.~ a ..... · x-I'-'~..--°--'.-~---.,--,,,s J,,,.~ tions, trade names, businoss names, corporate
ss Io os domem - ·
marks trade dre , g ' n[~r~l~i~:i~l_--'Z ...,-.,-. curr~ti~ in usc or not, mcindmg,
names and other source ldent' s,~~.r.,~'..,~ ,,,,~l;~-ations for reatstratton thc=f, and all
.... ! comntou la ri IltS aim reglsuau u~ m~., -¥t,
vathout lumtation, al ~_u~ .... : ..... flice or anencv of any State or
otb. ur marks registered in the U.S. a an ra ~ ~iu~;c u, ~, -,,~
2
SFDOCS01/205629.3
· ' Tenitory of the United Status or any foreign country (but excluding any United States intent-m-use
trademark application prior to the filing and acceptance of a Statement of Use or an Amendment to allege use
in contu~ction tberewith to the extent that a valid security interest may not be taken in such an intent-m-use
Irademark application under applicable law), and all fights therein provided by internetionel t~'eatics or
conventions, all reissues, extensions and renewals of any of the foregoing, together in each case with the
goodwiU of the business connected therewith and symbolized thereby, and all rights con'esponding thereto
throughout the world and all other rights of any kind whatsoever of Debtor accruing thereunder or pertaining
tbereto (the "Trademarks");
ail copyrights, copyright applications, copyright registrations and like protections in each
(iii) -
work of authorship, whctber statutory or con'm,.un law, whctber published or unpublished, any renewals or
cxtensious thereof, all copyrights of works based on, incmporated in, derived fi'om, or relating to works
covered by such copyrights, together with all rights corresponding thereto throughout the world and all other
rights of any kind whatsoever of Debtor accruing thereunder or pertsining thereto (tbe "Copyrights");
(iv) all confidential and propricta~, information, including, without limitation, know-bow, trade
secrets, manufacturing and production processes and techniques, inventions, research al,d development
information, teclmical data, tinencial, marketing and business data, pricing and cost information, bosincss
and marketing plans and custorocr and supplier lists and information (the "Trade Secrets");
(v) all computer sof~ware programs and datahascs (laclnding, without limitation, source code,
object code and all related applications and data files), fu-mware, and documentation and materials relating
thereto, and all rights with respect to thc foregoing, together with any and all options, warranties, service
contracts, program services, test rights, maintenance rights, improveraent rights, renewal rights and
indemniflcatious and an)' substitutions, replacements, additions or model conversions of any of the foregoing
(the "Computer Software");
(vi) all license agreements, permits, authorizations and franchises, whether with respect to the
Patents, Trademarks, CopyrightS, Trade Secrets or Computer Sni%'ware, or with respect to thc patents,
trademarks, copy~ghts, trade secrets, computer sulk'ware or other proprietary right of any other Persun' and
all income, royahics and other payments now or bereal~cr duc and/or payable with respect thereto, subject, in
each case, to thc terms of such license agreements, permits, authorizations and fi-anchises, (the "Licenses");
and
(vii) any and all claims for damages for past, present and future infringemsnt, misappropriation
or breach with respect to thc Patents, Trademarks, Copyrights, Trade Secrets, Comlmter $ottware or
Licenses, with the ~ighi, but not thc obligation, to suc for and collect, or otherwise recover, such deranges;
and
(b) all proceeds of any and all of the Collateral (including, without limitation, proceeds that coustitutc
property of the types described in clauses (a) through (g) and this clause (h)) and, to the extent not othctnvise included,
all (i) peymants under insurance (whether or not the Collateral Agent is thc loss peyec tbereo0, or any indenmity,
warranty or guaranty, peyablc by reason nf lnss or damage to or otherwise with respect tu any of thc foregoing
Collateral and (ii) cash.
Notwithstanding anything herein to thc contrary, in no event shall the Collateral include, and the Debtor shall
not be deemed to bevc granted a security interest in or plndgnd (i) thc assets subject to existing contracts of sale specified in
Schedule V oftbe Sccurity Agr~mem referrcd to in the Credit Agreemsnt, or (ii) any nfthe Debtor's rights or interests in any
Ucense, contract, or agrnement to which the Debtor is a party or any Security Collateral (other than stock iasned by wbolly-
owned Subsidiaries of DaVits Inc.) owned by the Debtor or any of its rights or interests thereunder to thc extent, but only to the
extent, that such a grant would, under the termz of such license, contract or agrcemsut or otherwise, result in a'breach of thc
t~'ms of, or constitote a default under any liccuse, contract, or ngr¢crnent to which the Debtor is a party or any Security
Cnllatcrol (other than stock issued by wholly-owned Subsidiaries of DaVha Inc.} owned by thc Debtor (other than to th~ extant
Ibat any such term would be rendered ineffective pursuant to Section 9-318(4) of the apphcebla Umfoms Cononercml Code or
any otber opplicablc law (including thc United $tat~s Bankruptcy Code) or principles of equity}; provided, that immediately
and thc Debtor shall be
upon the ineffectiveness, lapse or tcnnittation of anyl~'P~Yl'~:'~"'~'°llateral shall include,
deemed to have granted a security interest irt, all suc~as if such provision had never been in effect.
SFDOCS01/205629.3