SECONDARY PURCHASE AGREEMENT
Dated as of September 21, 2004
Among
RITE AID HDQTRS. FUNDING, INC.,
as Seller and as Collection Agent,
and
RITE AID FUNDING I,
as Purchaser
TABLE OF CONTENTS
Page
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PRELIMINARY STATEMENTS.........................................................1
ARTICLE I DEFINITIONS..................................................1
SECTION 1.01. Certain Defined Terms..................................1
SECTION 1.02. Other Terms...........................................13
ARTICLE II AMOUNTS AND TERMS OF PURCHASES..............................14
SECTION 2.01. Facility..............................................14
SECTION 2.02. Making Purchases......................................14
SECTION 2.03. Collections...........................................15
SECTION 2.04. Settlement Procedures.................................15
SECTION 2.05. Payments and Computations, Etc........................16
ARTICLE III CONDITIONS OF PURCHASES.....................................17
SECTION 3.01. Conditions Precedent to Initial Purchase
from the Seller.......................................17
SECTION 3.02. Conditions Precedent to All Purchases.................18
ARTICLE IV REPRESENTATIONS AND WARRANTIES..............................19
SECTION 4.01. Representations and Warranties of the Seller..........19
ARTICLE V COVENANTS ..................................................22
SECTION 5.01. Covenants of the Seller...............................22
SECTION 5.02. Grant of Security Interest............................26
SECTION 5.03. Covenant of the Seller and the Purchaser..............26
ARTICLE VI ADMINISTRATION AND COLLECTION...............................26
SECTION 6.01. Designation of Collection Agent.......................26
SECTION 6.02. Duties of Collection Agent............................27
SECTION 6.03. Collection Agent Fee..................................28
SECTION 6.04. Certain Rights of the Purchaser.......................28
SECTION 6.05. Rights and Remedies. .................................29
SECTION 6.06. Transfer of Records to Purchaser......................29
ARTICLE VII EVENTS OF TERMINATION............................................30
SECTION 7.01. Events of Termination.................................30
ARTICLE VIII INDEMNIFICATION.................................................32
SECTION 8.01. Indemnities by the Seller.............................32
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ARTICLE IX MISCELLANEOUS...............................................34
SECTION 9.01. Amendments, Etc.......................................34
SECTION 9.02. Notices, Etc..........................................34
SECTION 9.03. Binding Effect; Assignability.........................35
SECTION 9.04. Costs, Expenses and Taxes.............................35
SECTION 9.05. No Proceedings........................................35
SECTION 9.06. Confidentiality.......................................36
SECTION 9.07. GOVERNING LAW.........................................36
SECTION 9.08. Third Party Beneficiary...............................36
SECTION 9.09. Execution in Counterparts.............................36
SECTION 9.10. Consent to Jurisdiction...............................36
SECTION 9.11. WAIVER OF JURY TRIAL..................................37
SECTION 9.12. Judgment..............................................37
SCHEDULE 1 Intentionally Omitted.
SCHEDULE 2 MONTHS
SCHEDULE 3 MATERIAL LITIGATION
EXHIBIT A CREDIT AND COLLECTION POLICY
EXHIBIT B DEPOSIT BANKS, LOCK BOXES AND DEPOSIT ACCOUNTS
EXHIBIT C Intentionally Omitted
EXHIBIT D ADDRESSES
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SECONDARY PURCHASE AGREEMENT
Dated as of September 21, 2004
Rite Aid Hdqtrs. Funding, Inc., a Delaware corporation, as the seller
(the "Seller") and as collection agent (the "Collection Agent") and Rite Aid
Funding I, a Cayman Islands exempted company incorporated with limited liability
on August 11, 2004 under the name Cayman Resources (21) Ltd. (registration
number 138720) (the "Purchaser"), agree as follows:
PRELIMINARY STATEMENTS.
(1) Certain terms which are capitalized and used throughout this
Agreement (in addition to those defined above) are defined in Article I of this
Agreement.
(2) The Seller has Receivables (or interests therein) that it wishes to
sell to the Purchaser, and the Purchaser is prepared to purchase such
Receivables on the terms set forth in this Secondary Purchase Agreement (this
"Agreement").
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Account Bank" has the meaning given to such term in the
definition of Governmental Entity Receivables Agreement.
"Adverse Claim" means a lien, security interest, or other
charge or encumbrance, or any other type of preferential arrangement.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, is in control of, is controlled by or is under
common control with such Person or is a director or officer of such
Person.
"Alternate Base Rate" means a fluctuating interest rate per
annum as shall be in effect from time to time, which rate shall be at
all times equal to the highest of:
(a) the rate of interest announced publicly by Citibank, N.A.
in New York, New York, from time to time as Citibank, N.A.'s base rate;
and
(b) 1/2 of one percent above the Federal Funds Rate.
"Borrower" means Rite Aid Funding II, a Cayman Islands exempted company
incorporated with limited liability on August 11, 2004 under the name Cayman
Resources (22) Ltd. (registration number 138722).
"Business Day" means any day on which banks are not authorized or
required to close in New York City.
"Capital Lease" means any lease of (or other arrangement conveying the
right to use) real or personal property, or a combination thereof, which, in
accordance with GAAP, should be capitalized on the lessee's balance sheet.
"Capital Lease Obligation" of any Person means the obligations of such
Person to pay rent or other amounts under any Capital Lease, which obligations
should be classified and accounted for as capital leases on a balance sheet of
such Person under GAAP, and the amount of such obligations shall be the
capitalized amount thereof determined in accordance with GAAP.
"CHAMPUS" means the Civilian Health and Medical Program of the
Uniformed Service, a program of medical benefits covering former and active
members of the uniformed services and certain of their dependents, financed and
administered by the United States Departments of Defense, Health and Human
Services and Transportation and established pursuant to 10 U.S.C. xx.xx.
1071-1106, and all regulations promulgated thereunder including without
limitation (a) all federal statutes (whether set forth in 10 U.S.C. xx.xx.
1071-1106 or elsewhere) affecting CHAMPUS and (b) all rules, regulations
(including 32 CFR 199), manuals, orders and administrative, reimbursement and
other guidelines of all Governmental Entities (including, without limitation,
the Department of Health and Human Services, the Department of Defense, the
Department of Transportation, the Assistant Secretary of Defense (Health
Affairs) and the Office of CHAMPUS, or any Person or entity succeeding to the
functions of any of the foregoing) promulgated pursuant to or in connection with
any of the foregoing (whether or not having the force of law) in each case, as
amended, supplemented or otherwise modified from time to time.
"CMS" means Centers for Medicare & Medicaid Services of the Department
of Health and Human Services, and any successor agency.
"Collection Agent" means at any time the Person then authorized
pursuant to Section 6.01 to service, administer and collect Purchased Assets.
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"Collection Agent Fee" has the meaning specified in Section 6.03.
"Collections" means, (a) with respect to any Receivable, all cash
collections and other cash proceeds of such Receivable, including, without
limitation, all cash proceeds of Related Security with respect to such
Receivable, and all funds deemed to have been received by the applicable
Originator, the Seller or any other Person as a Collection pursuant to Section
2.04, and (b) with respect to any Participation Interest, all cash collections
and other cash proceeds of the Government Receivable underlying such
Participation Interest, including, without limitation, all cash proceeds of
Related Security with respect to such Participation Interest, and all funds
deemed to have been received by the applicable Originator, the Seller or any
other Person as a Collection pursuant to Section 2.04.
"Contract" means an agreement between an Originator and a Person, or
between a PBM and a Contract Payor, pursuant to or under which such Person or
Contract Payor shall be obligated to pay for pharmaceutical merchandise sold by
such Originator or its Affiliates from time to time.
"Contract Payor" means a Person who is required under its agreement
with a PBM to make payments to such PBM who, in turn, pays such amounts to an
Originator on such Person's behalf.
"Credit and Collection Policy" means those receivables credit and
collection policies and practices of the Seller and the Originators in effect on
the date of this Agreement applicable to the Receivables and described in
Exhibit A hereto, as modified in compliance with this Agreement.
"Debt" of any Person means, without duplication, (a) all obligations of
such Person for borrowed money or with respect to deposits or advances of any
kind, (b) all obligations of such Person evidenced by bonds, debentures, notes
or similar instruments, (c) all obligations of such Person under conditional
sale or other title retention agreements relating to property acquired by such
Person, (d) all obligations of such Person in respect of the deferred purchase
price of property or services (excluding current accounts payable incurred in
the ordinary course of business), (e) all Debt of others secured by (or for
which the holder of such Debt has an existing right, contingent or otherwise, to
be secured by) any Adverse Claim on property owned or acquired by such Person,
whether or not the Debt secured thereby has been assumed, (f) all Guarantees by
such Person of Debt of others, (g) all Capital Lease Obligations of such Person,
(h) all obligations, contingent or otherwise, of such Person as an account party
in respect of letters of credit and letters of guaranty and (i) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Debt of any Person shall include the Debt of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person
is liable therefor as a result of such Person's ownership
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interest in or other relationship with such entity, except to the
extent of the terms of such Debt provide that such Person is not liable
therefor.
"Defaulted Participation Interest" means a Participation Interest in a
Government Receivable which is a Defaulted Receivable.
"Defaulted Receivable" means a Receivable:
(i) as to which any payment, or part thereof, remains unpaid
for 120 or more days from the original date of service relating to such
Receivable;
(ii) as to which the Obligor thereof or any other Person
obligated thereon or owning any Related Security in respect thereof has
taken any action, or suffered any event to occur, of the type described
in Section 7.01(g);
(iii) which, consistent with the Credit and Collection Policy,
would be written off as uncollectible; or
(iv) as to which the applicable Originator or the Seller has
(or consistent with the Credit and Collection Policy should have)
established a specific reserve for non-payment.
"Deposit Account" means an account maintained at a Deposit Bank into
which (i) Collections in the form of checks and other items are deposited that
have been sent to one or more related Lock Boxes by Obligors (other than the
Contract Payors paying a PBM) and/or (ii) Collections in the form of electronic
funds transfers and other items are paid directly by Obligors (other than the
Contract Payors paying a PBM) and (iii) which is subject to a Deposit Account
Agreement.
"Deposit Account Agreement" means an agreement among a Seller, the
Purchaser (or its assignees or designees) and any Deposit Bank in form and
substance satisfactory to the Purchaser (or its assignees or designees).
"Deposit Bank" means any of the banks holding one or more Deposit
Accounts.
"Designated Obligor" means, at any time, each Obligor; provided,
however, that any Obligor shall cease to be a Designated Obligor upon three
Business Days' notice by the Purchaser (or its assignees or designees) to the
applicable Seller.
"Determination Date" means the seventh Business Day after the end of
each Month, provided that if an Event of Termination has occurred and is
continuing, the Seller or the Purchaser may designate more frequent
Determination Dates.
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"Diluted Participation Interest" means a Participation Interest in a
Government Receivable which is a Diluted Receivable.
"Diluted Receivable" means that portion (and only that portion) of any
Receivable which is either (a) reduced or canceled as a result of (i) any
defective, rejected or returned merchandise or services or any failure by an
Originator to deliver any merchandise or provide any services or otherwise to
perform under the underlying Contract, (ii) any change in the terms of or
cancellation of, a Contract or any cash discount, discount for quick payment or
other adjustment by an Originator which reduces the amount payable by the
Obligor on the related Receivable (except any such change or cancellation
resulting from or relating to the financial inability to pay or insolvency of
the Obligor of such Receivable) or (iii) any set-off by an Obligor in respect of
any claim by such Obligor as to amounts owed by it on the related Receivable
(whether such claim arises out of the same or a related transaction or an
unrelated transaction) or (b) subject to any specific dispute, offset,
counterclaim or defense whatsoever (except the discharge in bankruptcy of the
Obligor thereof); provided that Diluted Receivables are calculated assuming that
all chargebacks are resolved in the Obligor's favor.
"Discount" means, in respect of each Purchase, 2.00% of the Outstanding
Balance of the Receivables that are the subject of such Purchase; provided,
however, the foregoing Discount may be revised prospectively by request of the
Seller or the Purchaser to reflect changes in recent experience with respect to
write-offs, timing and cost of Collections and cost of funds, provided that such
revision is consented to by the Seller and the Purchaser (it being understood
that each party agrees to duly consider such request but shall have no
obligation to give such consent).
"Eligible Receivable" means a Receivable:
(i) the Obligor of which is a United States resident,
is not an Affiliate of the Parent, and is not a Governmental
Entity, except to the extent payment of such Receivable is
governed under the Social Security Act (42 U.S.C. ss. 1395, et
seq.), including payments under Medicaid and CHAMPUS or
regulated by CMS;
(ii) the Obligor of which, at the time of the
transfer of such Receivable under this Agreement, is a
Designated Obligor;
(iii) which, at the time of the transfer thereof to
the Purchaser under this Agreement, is not a Defaulted
Receivable;
(iv) the Obligor of which, at the time of the
transfer of such Receivable under this Agreement, is not the
Obligor of any Defaulted Receivables which in
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the aggregate constitute 50% or more of the aggregate Outstanding
Balance of all Receivables of such Obligor;
(v) which has been billed and, according to the Contract
related thereto, is required to be paid in full within 60 days of the
original billing date therefor;
(vi) which is an obligation representing all or part of the
sales price of merchandise, insurance or services within the meaning of
Section 3(c)(5) of the Investment Company Act of 1940, as amended, and
the nature of which is such that its purchase with the proceeds of
notes would constitute a "current transaction" within the meaning of
Section 3(a)(3) of the Securities Act of 1933, as amended;
(vii) which is an "account" or a "payment intangible" within
the meaning of Article 9 of the UCC of the applicable jurisdictions;
(viii) which is denominated and payable only in United States
dollars in the United States;
(ix) which arises under a Contract which, together with such
Receivable, is in full force and effect and constitutes the legal,
valid and binding obligation of the Obligor of such Receivable and is
not subject to any Adverse Claim or any dispute, offset, counterclaim
or defense whatsoever (except the potential discharge in bankruptcy of
such Obligor and except with respect to adjudication fees charged by
any relevant PBM) and is not settled on a net basis;
(x) which, together with the Contract related thereto, does
not contravene in any material respect any laws, rules or regulations
applicable thereto (including, without limitation, laws, rules and
regulations relating to usury, consumer protection, truth in lending,
fair credit billing, fair credit reporting, equal credit opportunity,
fair debt collection practices and privacy) and with respect to which
no party to the Contract related thereto is in violation of any such
law, rule or regulation in any material respect;
(xi) which arises under a Contract (other than a Contract with
respect to which the related Obligor is a Governmental Entity) which
(A) does not contain an enforceable provision requiring the Obligor
under such Contract to consent to the transfer, sale or assignment of
the Obligor's payment obligation by the applicable Originator, and (B)
if such Contract is between a PBM and a Contract Payor, does not
contain any enforceable provision prohibiting the transfer, sale or
assignment of such Contract Payor's payment obligation to the
applicable Originator;
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(xii) which was generated in the ordinary course of the
applicable Originator's business;
(xiii) which, at the time of the transfer of such Receivable
under this Agreement, has not been extended, rewritten or otherwise
modified from the original terms thereof;
(xiv) the transfer, sale or assignment of which in accordance
with the Transaction Documents does not contravene any applicable law,
rule or regulation;
(xv) which (A) satisfies all applicable requirements of the
Credit and Collection Policy and (B) complies with such other criteria
and requirements (other than those relating to the collectibility of
such Receivable) as the Purchaser or its assignees may from time to
time reasonably specify to the Seller upon 30 days' notice;
(xvi) as to which, at or prior to the later of the date of
this Agreement and the date such Receivable is created, the Purchaser
or its assignees has not notified the Seller that such Receivable (or
class of Receivables) is no longer reasonably acceptable for purchase
hereunder;
(xvii) as to which the applicable Originator has satisfied and
fully performed all obligations required to be fulfilled by it;
(xviii) as to which the applicable Originator has, or has the
right to use, valid provider identification numbers and licenses to
generate valid Receivables and all information set forth in the xxxx
and supporting claim documents with respect to such Receivable is true,
complete and correct;
(xix) as to which the applicable Originator has, or has the
right to use, valid provider identification numbers and licenses to
generate valid reports with respect to such Receivable, and all cost
reports required by the applicable state agency or other CMS-designated
agents or agents of such state agency;
(xx) which does not arise from a sale by the applicable
Originator from a store located in Hawaii, Illinois, Minnesota, Montana
or New Mexico, unless the applicable Originator shall have furnished
the Seller and its assignees with an opinion of local counsel, or other
evidence satisfactory to the Seller and its assignees, to the effect
that the transfer, sale and assignment of Receivables and Participation
Interests in accordance with this Agreement from a store located in
such state does not violate any provision of the law of such state; and
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(xxi) which is not a Medicare Receivable.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"Event of Termination" has the meaning specified in Section 7.01.
"Facility Termination Date" means the earliest of (i) the "Facility
Termination Date" (as such term is defined in the Financing Agreement), (ii) the
date determined pursuant to Section 7.01 and (iii) the date which the Seller
designates by at least two Business Days prior notice to the Purchaser and its
assignees (including the Program Agent under the Financing Agreement).
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which is a
Business Day, the average (rounded upwards, if necessary, to the next 1/100 of
1%) of the quotations for such day on such transactions received by Citibank,
N.A. from three Federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer, vice president of financial accounting or
controller of the relevant Person.
"Financing Agreement" means that certain Receivables Financing
Agreement, dated as of the date hereof, among the Borrower, CAFCO, LLC, Jupiter
Securitization Corporation and Blue Ridge Asset Funding Corporation, each as an
investor, Citibank, N.A., Bank One, NA and Wachovia Bank, National Association,
each as a bank, Citicorp North America, Inc., as program agent, Citicorp North
America, Inc., Bank One, NA and Wachovia Bank, National Association, each as an
investor agent, the other investors, banks and investor agents party thereto
from time to time, Rite Aid Hdqtrs. Funding, Inc., as the collection agent, the
parties thereto named as Originators, and JPMorgan Chase Bank, as trustee, as
amended or restated from time to time.
"GAAP" means generally accepted accounting principles in the United
States.
"General Trial Balance" for the Seller on any date means the Seller's
(or the Collection Agent's) accounts receivable trial balance (whether in the
form of a computer printout, magnetic tape or diskette) on such date, listing
Obligors (other than Contract
8
Payors) and the Receivables respectively owed by such Obligors on such date
together with the aged Outstanding Balances of such Receivables, in form and
substance satisfactory to the Purchaser.
"Government Receivable" means any Receivable with respect to which the
Obligor is a Governmental Entity.
"Governmental Entity" means the United States of America, any state,
any political subdivision of a state and any agency or instrumentality of the
United States of America or any state or political subdivision thereof and any
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government. Payments from Governmental Entities
shall be deemed to include payments governed under the Social Security Act (42
U.S.C. ss. 1395, et seq.), including payments under Medicare, Medicaid and
CHAMPUS, and payments administered or regulated by CMS.
"Governmental Entity Receivables Account Notice" means a notice
contained in a Governmental Entity Receivables Agreement pursuant to which an
Affiliate of the Parent gives revocable standing instructions to the Account
Bank to sweep funds on a daily basis from the Governmental Entity Receivables
Account to another designated account approved by the Purchaser and its assigns.
"Governmental Entity Receivables Account" has the meaning given to such
term in the definition of Governmental Entity Receivables Agreement.
"Governmental Entity Receivables Agreement" means an agreement between
a bank (an "Account Bank") and one or more Originators or Affiliates of the
Parent with respect to one or more accounts (each, a "Governmental Entity
Receivables Account") or associated Lock-Boxes into which Collections on account
of Receivables of Governmental Entities are deposited or remitted and which is
subject to a Governmental Entity Receivables Account Notice.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Debt or other obligation of any Person (the "primary
obligor") in any manner, whether directly or indirectly, and including any
obligation of the guarantor, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt or other
obligation or to purchase (or to advance or supply funds for the purchase of)
any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Debt or
other obligation of the payment thereof, (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Debt or other obligation
or (d) as an account party in respect of any letter of credit or letter of
guaranty issued to support such Debt or
9
obligation; provided, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
"Incipient Event of Termination" means an event that but for notice or
lapse of time or both would constitute an Event of Termination.
"Indemnified Amounts" has the meaning specified in Section 8.01.
"Intercreditor Agreement" means that certain Intercreditor Agreement
dated as of September 22, 2004 among Citicorp North America, Inc. (as program
agent under the Financing Agreement), the Borrower, the Originators, the Seller,
and Citicorp North America, Inc. and JPMorgan Chase Bank, as collateral agents,
as the same may be amended, modified or restated from time to time.
"Lock-Box" means a post office box either (a) administered by a Deposit
Bank for the purpose of receiving Collections, which is the subject of a Deposit
Account Agreement, or (b) which receives Collections of Government Receivables
and is associated with a Government Entity Receivables Account that is subject
to a Governmental Entity Receivables Agreement.
"Material Adverse Effect" means a material adverse effect on (i) the
collectibility of the Receivables, (ii) the ability of the Purchaser, the Seller
or any Originator to perform any of its respective material obligations under
the Transaction Documents to which it is a party, (iii) the legality, validity
or enforceability of the Transaction Documents (including, without limitation,
the validity, enforceability or priority of the ownership interests and security
interests granted hereunder) or the rights of or benefits available to the
Purchaser under the Transaction Documents, or (iv) the business, assets,
operations, condition (financial or otherwise), or prospects of the Parent and
its subsidiaries, taken as a whole.
"Medicaid" means the medical assistance program established by Title
XIX of the Social Security Act (42 U.S.C. Secs. 1396 et seq.) and any statutes
succeeding thereto.
"Medicare" means the health insurance program for the aged and disabled
established by Title XVIII of the Social Security Act (42 U.S.C. Secs. 1395 et
seq.) and any statutes succeeding thereto.
"Month" means a fiscal month of the Parent as set forth on Schedule 2
hereto, as such schedule shall be updated from time to time in accordance with
the terms hereof.
"Obligor" means a Person obligated to make payments to an Originator
pursuant to a Contract; provided, however, if a PBM acts as agent for Contract
Payors and is obligated, pursuant to a Contract, to turn over to an Originator
payments made to it by
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such Contract Payors, then the term "Obligor" shall include both such PBM and
such Contract Payors.
"Originator" means each of the Persons designated as such on Schedule I
to the Originator Purchase Agreement.
"Originator Purchase Agreement" means the Purchase Agreement dated as
of the date of this Agreement among the Originators, as sellers and the Seller,
as purchaser and collection agent, as amended or restated from time to time.
"Outstanding Balance" means at any time (i) with respect to any
Receivable, the then outstanding principal balance thereof and (ii) with respect
to any Participation Interest, the then outstanding principal balance of the
underlying Government Receivable. Any sales or use tax billed in connection with
a Receivable is not included in the Outstanding Balance.
"Parent" means Rite Aid Corporation, a Delaware corporation.
"Parent Undertaking (Originators)" means the Undertaking Agreement
dated as of September 21, 2004 made by the Parent in favor of the Seller
relating to obligations of the Originators, as amended, modified or restated
from time to time.
"Participated Receivable" means any Receivable which is the subject of
a Purchased Participation Interest.
"Participation Interest" means, with respect to any Originator, a 100%
undivided beneficial interest in such Originator's right, title and interest,
whether now owned or hereafter arising and wherever located, in, to and under
(i) each Government Receivable owned by such Originator, (ii) all Related
Security and Collections with respect to such Government Receivable and (iii)
all proceeds of such Government Receivable, Related Security, and Collections.
"PBM" means a pharmaceutical benefits manager which has entered into an
agreement with an Originator to make payments as agent for various insurers and
other Persons, on account of pharmaceutical goods sold by such Originator.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a Governmental
Entity.
"Purchase" means a purchase by the Purchaser of Receivables and/or
Participation Interests from the Seller pursuant to Article II (including a
purchase paid for in whole or in part by a capital contribution).
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"Purchase Date" means each day on which a Purchase is made pursuant to
Article II.
"Purchase Price" for any Purchase means an amount equal to the
Outstanding Balance of the Receivables that are the subject of such Purchase as
set forth in the Seller's General Trial Balance, minus the Discount for such
Purchase.
"Purchased Asset" means any Purchased Receivable or Purchased
Participation Interest.
"Purchased Participation Interest" means any Participation Interest
which is purchased or purported to be purchased by the Purchaser pursuant to
Article II (including a Participation Interest which is contributed by the
Seller to the Purchaser).
"Purchased Receivable" means any Receivable (other than a Government
Receivable) which is purchased or purported to be purchased by the Purchaser
pursuant to Article II (including a Receivable (other than a Government
Receivable) which is contributed by the Seller to the Purchaser).
"Receivable" means the indebtedness or obligation of any Obligor
resulting from the provision or sale of pharmaceutical merchandise by an
Originator (or an Affiliate on behalf of such Originator) under a Contract
(whether constituting an account, instrument, chattel paper, payment intangible
or general intangible), and includes the right to payment of any interest or
finance charges and other obligations of such Obligor with respect thereto.
"Related Security" means (a) with respect to any Receivable:
(i) all of the applicable Originator's interest in
merchandise, if any, (including returned merchandise) relating to any
sale giving rise to such Receivable;
(ii) all security interests or liens and property subject
thereto from time to time purporting to secure payment of such
Receivable, whether pursuant to the Contract related to such Receivable
or otherwise, together with all financing statements filed against an
Obligor describing any collateral securing such Receivable;
(iii) all guaranties, insurance and other agreements or
arrangements of whatever character from time to time supporting or
securing payment of such Receivable whether pursuant to the Contract
related to such Receivable or otherwise;
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(iv) the Contract and all other books, records and other
information (including, without limitation, computer programs, tapes,
discs, punch cards, data processing software and related property and
rights, subject to the rights of any licensors and to applicable law)
relating to such Receivable and the related Obligor; and
(v) the Originator Purchase Agreement and the Parent
Undertaking (Originators) and all rights of the Seller to receive
monies due or to become due thereunder,
and (b) with respect to any Participation Interest, the Related Security with
respect to the Government Receivable that is the subject of such Participation
Interest.
"RFA Final Payment Date" means the later of the "Facility
Termination Date" (as such term is defined in the Financing Agreement)
and the date on which all Principal, Yield, fees and other obligations
under the Financing Agreement are paid in full.
"Secured Obligations" has the meaning given to such term in
Section 5.02 hereof.
"Seller Collateral" has the meaning given to such term in
Section 5.02 hereof.
"Seller Report" means a report, in form and substance
satisfactory to the Purchaser, furnished by the Collection Agent to the
Purchaser pursuant to Section 6.02(b).
"Settlement Date" means a Distribution Date (as such term is
defined in the Financing Agreement); provided, however, that following
the occurrence of an Event of Termination, Settlement Dates shall occur
on such days as are selected from time to time by the Purchaser or its
assignees in a written notice to the Collection Agent.
"Transaction Document" means any of this Agreement, the
Originator Purchase Agreement, the Deposit Account Agreements, the
Governmental Entity Receivables Agreements, all amendments to any of
the foregoing and all other agreements and documents delivered and/or
related hereto or thereto.
"UCC" means the Uniform Commercial Code as from time to time
in effect in the relevant jurisdiction.
SECTION 1.02. Other Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles. All terms used in Article 9 of the UCC in the
State of New York, and not specifically defined herein, are used herein as
defined in such Article 9.
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ARTICLE II
AMOUNTS AND TERMS OF PURCHASES
SECTION 2.01. Facility. On the terms and conditions hereinafter set
forth and without recourse to the Seller (except to the extent specifically
provided herein), the Seller shall sell and/or contribute to the capital of the
Purchaser all of its right, title and interest in, to and under (i) all
Receivables (other than Government Receivables) acquired by it from time to
time, and (ii) all Participation Interests in all Government Receivables
acquired by it from time to time, and the Purchaser shall purchase and/or accept
as a contribution from the Seller all such Receivables (other than Government
Receivables) and all Participation Interests in Government Receivables of the
Seller from time to time, in each case during the period from the date hereof to
the Facility Termination Date.
SECTION 2.02. Making Purchases.
(a) Initial Purchase. The Seller shall give the Purchaser at least one
Business Day's notice of its request for the initial Purchase, which request
shall specify the date of such Purchase (which shall be a Business Day) and the
proposed Purchase Price for such Purchase. The Purchaser shall promptly notify
the Seller whether it has determined to make such Purchase. On the date of such
Purchase, the Seller shall sell or contribute to the capital of Purchaser (i)
all Receivables (other than Government Receivables) acquired by the Seller
pursuant to the Originator Purchase Agreement and (ii) all Participation
Interests acquired by the Seller pursuant to the Originator Purchase Agreement,
and the Purchaser shall, upon satisfaction of the applicable conditions set
forth in Article III, pay the Purchase Price for such Purchase in the manner
provided in Section 2.02(d). Effective upon such payment, the Seller hereby
sells, conveys, transfers and assigns to the Purchaser (i) all Receivables
(other than Government Receivables) acquired by it and in existence on the date
of the initial Purchase and (ii) all Participation Interests in all Government
Receivables acquired by it and in existence on the date of the initial Purchase.
(b) Subsequent Purchases. On each Business Day following the initial
Purchase, unless either party shall notify the other party to the contrary, the
Seller shall sell to the Purchaser and the Purchaser shall purchase from such
Seller, upon satisfaction of the applicable conditions set forth in Article III,
(i) all Receivables (other than Government Receivables) acquired by the Seller
and (ii) all Participation Interests in all Government Receivables acquired by
the Seller, in each case which have not previously been sold and/or contributed
to the Purchaser. The Purchaser shall pay the Purchase Price for such Purchase
in the manner provided in Section 2.02(d). Effective on each Purchase Date, the
Seller hereby sells, conveys, transfers and assigns to the Purchaser (i) all
Receivables (other than Government Receivables) acquired by it and not
previously sold, conveyed, transferred or assigned to the Purchaser and (ii) all
Participation Interests in all Government Receivables acquired by it and not
previously sold, conveyed, transferred or assigned to the Purchaser.
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(c) Special Provisions Relating to Sales of Participation Interests.
Pursuant to the Originator Purchase Agreement, each Originator has agreed,
following each sale of a Participation Interest in a Government Receivable, to
hold such Government Receivable and any Related Security, Collections and
proceeds with respect thereto for the benefit of the Seller and its assigns;
provided that such Originator shall take no action in contravention of any law,
rule or regulation applicable to such Government Receivable. It is understood
and agreed that sales of Participation Interests in Government Receivables shall
not include any right to collect the proceeds of any Government Receivable
directly from the applicable Governmental Entity, except insofar as a court of
competent jurisdiction shall order such Governmental Entity to make such
payments directly to the Purchaser or its assigns.
(d) Payment of Purchase Price. The Purchase Price for the initial
Purchase shall be paid on the Purchase Date therefor and the Purchase Price for
each subsequent Purchase shall be paid on the next Settlement Date (without
giving effect to the proviso in the definition thereof) after the Purchase Date
therefor, in each case, by means of any one or a combination of the following:
(i) a deposit in same day funds to the Seller's account designated by the
Seller, and/or (ii) a contribution to the capital of the Purchaser. To the
extent that on any date set for the payment of Purchase Price, the Purchaser
does not have sufficient funds to pay the entire Purchase Price in cash, the
amount in excess of the cash portion of the Purchase Price paid by the Purchaser
shall constitute a contribution to the capital of the Purchaser by the Seller,
and the parties hereto will make the appropriate accounting entries in their
books and records to reflect such allocation of the Purchase Price as between
cash payment and capital contribution. It is agreed by the parties hereto that
the portion of the Purchase Price for the initial Purchase allocated to a
capital contribution is $394,971,504.26.
(e) Ownership of Receivables, Participation Interests and Related
Security. On each Purchase Date, after giving effect to the Purchase on such
date, the Purchaser shall own (i) all Receivables (other than Government
Receivables) acquired by the Seller as of such date (including Receivables which
have been previously sold and/or contributed to the Purchaser hereunder), and
(ii) all Participation Interests in all Government Receivables acquired by the
Seller as of such date (including Participation Interests in Government
Receivables which have been previously sold and/or contributed to the Purchaser
hereunder). The Purchase of any Receivable or Participation Interest shall
include all Related Security with respect to such Receivable or Participation
Interest.
SECTION 2.03. Collections. (a) Unless otherwise agreed, the Collection
Agent shall, on each Settlement Date, deposit into an account of the Purchaser
or the Purchaser's assignee all Collections of Purchased Assets then held by the
Collection Agent.
(b) In the event that the Seller believes that Collections which are
not Collections of Purchased Assets have been deposited into an account of the
Purchaser or the Purchaser's assignee, the Seller shall notify the Collection
Agent who shall so advise the Purchaser and, on the Business Day following such
identification, the Purchaser shall remit, or
15
shall cause to be remitted, all Collections so deposited which are identified,
to the Purchaser's satisfaction, to be Collections of Receivables which are not
either Purchased Receivables or Participated Receivables to the Seller.
SECTION 2.04. Settlement Procedures. (a) If on any day any Purchased
Asset becomes (in whole or in part) a Diluted Receivable or a Diluted
Participation Interest (as the case may be), the Seller shall be deemed to have
received on such day a Collection of such Purchased Asset in the amount of such
Diluted Receivable or Diluted Participation Interest (as the case may be). If
the Seller is not the Collection Agent, the Seller shall pay to the Collection
Agent on or prior to the next Settlement Date all amounts deemed to have been
received pursuant to this subsection.
(b) Upon discovery by the Seller or the Purchaser of a breach of any of
the representations and warranties made by the Seller in Section 4.01(j) with
respect to any Purchased Asset, such party shall give prompt written notice
thereof to the Purchaser, the Collection Agent, and the Seller, as soon as
practicable and in any event within three Business Days following such
discovery. The Seller shall, upon not less than two Business Days' notice from
the Purchaser or its assignee or designee, repurchase such Purchased Asset on
the next succeeding Settlement Date for a repurchase price equal to the
Outstanding Balance of such Purchased Asset. Each repurchase of a Purchased
Asset shall include the Related Security with respect to such Purchased Asset.
The proceeds of any such repurchase shall be deemed to be a Collection in
respect of such Purchased Asset. If the Seller is not the Collection Agent, the
Seller shall pay to the Collection Agent on or prior to the next Settlement Date
the repurchase price required to be paid pursuant to this subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or
as otherwise required by law or the underlying Contract, all Collections from an
Obligor of any Purchased Receivable or Participated Receivable shall be applied
to the Receivables of such Obligor in the order of the age of such Receivables,
starting with the oldest such Receivable, unless such Obligor designates its
payment for application to specific Receivables.
SECTION 2.05. Payments and Computations, Etc. (a) All amounts to be
paid or deposited by the Seller or the Collection Agent hereunder shall be paid
or deposited no later than 12:00 noon (New York City time) on the day when due
in same day funds to an account or accounts designated by the Purchaser from
time to time, which accounts, during the existence of the Financing Agreement,
shall be those set forth in the Financing Agreement.
(b) The Seller shall, to the extent permitted by law, pay to the
Purchaser interest on any amount not paid or deposited by the Seller (whether as
Collection Agent or otherwise) when due hereunder at an interest rate per annum
equal to 2% per annum above the Alternate Base Rate, payable on demand.
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(c) All computations of interest and all computations of fees hereunder
shall be made on the basis of a year of 360 days for the actual number of days
(including the first but excluding the last day) elapsed. Whenever any payment
or deposit to be made hereunder shall be due on a day other than a Business Day,
such payment or deposit shall be made on the next succeeding Business Day and
such extension of time shall be included in the computation of such payment or
deposit.
ARTICLE III
CONDITIONS OF PURCHASES
SECTION 3.01. Conditions Precedent to Initial Purchase from the Seller.
The initial Purchase of Receivables and/or Participation Interests from the
Seller hereunder is subject to the conditions precedent that the Purchaser shall
have received on or before the date of such Purchase the following, each (unless
otherwise indicated) dated such date, in form and substance satisfactory to the
Purchaser:
(a) Certified copies of the resolutions of the Board of
Directors of the Seller approving this Agreement and certified copies
of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement.
(b) A certificate of the Secretary or Assistant Secretary of
the Seller certifying the names and true signatures of the officers of
such Seller authorized to sign this Agreement and the other documents
to be delivered by it hereunder.
(c) Copies of proper financing statements, duly filed on or
before the date of the initial Purchase, naming the Seller as the
seller/debtor and the Purchaser as the purchaser/secured party, or
other similar instruments or documents, as the Purchaser may deem
necessary or desirable under the UCC of all appropriate jurisdictions
or other applicable law to perfect the Purchaser's ownership of and
security interest in the Purchased Assets and Related Security and
Collections with respect thereto.
(d) Copies of proper financing statements, if any, necessary
to release all security interests and other rights of any Person in the
Purchased Assets, Contracts or Related Security previously granted by
the Seller, except those security interests subject to the
Intercreditor Agreement.
(e) Completed requests for information, dated on or before the
date of such initial Purchase, listing all effective financing
statements filed in the jurisdictions referred to in subsection (c)
above that name the Seller as debtor, together with copies of such
other financing statements (none of which shall cover any Purchased
Assets, Contracts or
17
Related Security except those evidencing security interests subject to
the Intercreditor Agreement).
(f) A favorable opinion of (i) Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP, counsel for the Seller, in form and substance satisfactory to
the Purchaser, (ii) Xxxxxxx & Xxxxxx relating to various states' local
perfection issues and (iii) Parent's general counsel, in each case, as
to such matters as the Purchaser may reasonably request, and
(g) Executed copies of (i) Deposit Account Agreements with
each Deposit Bank and (ii) Governmental Entity Receivables Agreements
with each Account Bank.
SECTION 3.02. Conditions Precedent to All Purchases.
Each Purchase (including the initial Purchase) hereunder shall be
subject to the further conditions precedent that:
(a) with respect to any such Purchase, on or prior to the date
of such Purchase, the Seller shall have delivered to the Purchaser, if
requested by the Purchaser, (i) the Seller's General Trial Balance
(which if in magnetic tape or diskette format shall be compatible with
the Purchaser's computer equipment) as of a date not more than 31 days
prior to the date of such Purchase, and (ii) such additional
information concerning the Receivables and Participation Interests to
be purchased as may reasonably be requested by the Purchaser;
(b) with respect to any such Purchase, on or prior to the date
of such Purchase, the Collection Agent shall have delivered to the
Purchaser, in form and substance satisfactory to the Purchaser, a
completed Seller Report for the most recently ended reporting period
for which information is required pursuant to Section 6.02(b) and
containing such additional information as may reasonably be requested
by the Purchaser;
(c) the Seller shall have marked its master data processing
records and, at the request of the Purchaser, each Contract giving rise
to Purchased Assets and all other relevant records evidencing the
Receivables and Participation Interests which are the subject of such
Purchase with a legend, acceptable to the Purchaser, stating that such
Receivables and Participation Interests, together with the Related
Security and Collections with respect thereto, have been sold in
accordance with this Agreement; and
(d) on the date of such Purchase the following statements
shall be true (and the Seller, by accepting the Purchase Price for such
Purchase, shall be deemed to have certified that):
(i) The representations and warranties made by the
Seller in Section 4.01 are correct on and as of the date of
such Purchase as though made on and as of such date,
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(ii) No event has occurred and is continuing, or would
result from such Purchase, that constitutes an Event of
Termination or an Incipient Event of Termination and
(iii) The Purchaser shall not have delivered to the
Seller a notice that the Purchaser shall not make any
further Purchases hereunder; and
(e) the Purchaser shall have received such other approvals,
opinions or documents as the Purchaser may reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Seller. The Seller
represents and warrants as follows:
(a) The Seller is a corporation duly incorporated, validly
existing and in good standing under the laws of the state of Delaware
and is duly qualified to do business, and is in good standing, in every
jurisdiction where the nature of its business requires it to be so
qualified, except where the failure to do so could not reasonably be
expected to result in a Material Adverse Effect.
(b) The execution, delivery and performance by the Seller of
this Agreement and the other documents to be delivered by it hereunder,
including the Seller's sale of Receivables and Participation Interests
hereunder and the Seller's use of the proceeds of Purchases, (i) are
within the Seller's corporate powers, (ii) have been duly authorized by
all necessary corporate action, (iii) do not contravene (1) the
Seller's charter or by-laws, (2) any law, rule or regulation applicable
to the Seller, (3) any contractual restriction binding on or affecting
the Seller or its property or (4) any order, writ, judgment, award,
injunction or decree binding on or affecting the Seller or its
property, and (iv) do not result in or require the creation of any
lien, security interest or other charge or encumbrance upon or with
respect to any of its properties (except for the transfer of the
Seller's interest in the Purchased Assets pursuant to this Agreement).
This Agreement has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
is required for the due execution, delivery and performance by the
Seller of this Agreement or any other document to be delivered by it
hereunder, except for the filing of UCC financing statements referred
to herein.
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(d) Each of the Transaction Documents to which it is a party
constitutes the legal, valid and binding obligation of the Seller
enforceable against the Seller in accordance with its terms, subject to
applicable bankruptcy, insolvency, moratorium or other similar laws
affecting the rights of creditors generally and general equitable
principles (whether considered in a proceeding at law or in equity).
(e) Purchases made pursuant to this Agreement will constitute
a valid sale, transfer, and assignment of the Purchased Assets to, or
contributions of the Purchased Assets to the capital of, the Purchaser,
enforceable against creditors of, and purchasers from, the Seller. The
Seller shall have no remaining property interest in any Purchased
Asset.
(f) (i) The fair value of the property of the Seller is
greater than the total amount of liabilities, including contingent
liabilities, of the Seller, (ii) the present fair salable value of the
assets of the Seller is not less than the amount that will be required
to pay all probable liabilities of the Seller on its debts as they
become absolute and matured, (iii) the Seller does not intend to, and
does not believe that it will, incur debts or liabilities beyond the
Seller's abilities to pay such debts and liabilities as they mature and
(iv) the Seller is not engaged in a business or a transaction, and is
not about to engage in a business or a transaction, for which the
Seller's property would constitute unreasonably small capital.
(g) Except as set forth in Schedule 3 hereto (or as otherwise
disclosed by the Parent in publicly available SEC filings), there is no
pending or threatened action, investigation or proceeding affecting the
Seller or any of its subsidiaries before any court, governmental agency
or arbitrator which if determined adversely to any of them, could
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(h) No proceeds of any Purchase will be used to acquire any
equity security of a class which is registered pursuant to Section 12
of the Securities Exchange Act of 1934.
(i) No transaction contemplated hereby requires compliance
with any bulk sales act or similar law.
(j) Each Receivable (including, without limitation, each
Participated Receivable) sold and/or contributed by the Seller and
characterized in any Seller Report (or, if applicable, as of a date
certain specified in such report) as an Eligible Receivable is, as of
the date of such Seller Report, an Eligible Receivable. Each Purchased
Asset, together with the Related Security, is owned (immediately prior
to its sale hereunder) by the Seller free and clear of any Adverse
Claim (other than any Adverse Claim arising solely as the result of any
action taken by the Purchaser). When the Purchaser makes a Purchase it
shall acquire valid and perfected first priority ownership of each
Purchased
20
Asset and the Related Security and Collections with respect thereto
free and clear of any Adverse Claim (other than any Adverse Claim
arising solely as the result of any action taken by the Purchaser), and
no effective financing statement or other instrument similar in effect
covering any Purchased Asset, any interest therein, the Related
Security or Collections with respect thereto is on file in any
recording office except such as may be filed in favor of Seller in
accordance with the Originator Purchase Agreement, in favor of
Purchaser in accordance with this Agreement or in connection with any
Adverse Claim arising solely as the result of any action taken by the
Purchaser or those which relate to security interests that are subject
to the Intercreditor Agreement.
(k) Each Seller Report (if prepared by the Seller, or to the
extent that information contained therein is supplied by the Seller),
information, exhibit, financial statement, document, book, record or
report furnished or to be furnished at any time (whether before or
after the date of this Agreement) by the Seller to the Purchaser in
connection with this Agreement is or will be accurate in all material
respects as of its date or (except as otherwise disclosed to the
Purchaser at such time) as of the date so furnished (or, if applicable,
as of a date certain specified in such report), and no such document
contains or will contain any untrue statement of a material fact or
omits or will omit to state a material fact necessary in order to make
the statements contained therein, in the light of the circumstances
under which they were made, not misleading.
(l) The principal place of business and chief executive office
of the Seller and the office where such Seller keeps its records
concerning the Purchased Assets are located at the address or addresses
referred to in Section 5.01(b).
(m) The names and addresses of all the Deposit Banks and
Account Banks, together with the post office boxes and account numbers
of the Lock-Boxes, Deposit Accounts at such Deposit Banks, and
Governmental Entity Receivables Accounts at such Account Banks are
specified in Exhibit B (as the same may be updated from time to time
pursuant to Section 5.01(g)). The Lock-Boxes, Deposit Accounts and
Governmental Entity Receivables Accounts are the only post office boxes
and bank accounts into which Collections of Receivables and
Participation Interests are deposited or remitted.
(n) The Seller is not known by and does not use any tradename
or doing-business-as name.
(o) With respect to any programs used by the Seller in the
servicing of the Receivables and Participation Interests, no
sublicensing agreements are necessary in connection with the
designation of a new Collection Agent pursuant to Section 6.01 so that
such new Collection Agent shall have the benefit of such programs (it
being understood that, however, the Collection Agent, if other than the
Seller, shall be required to be bound by a confidentiality agreement
reasonably acceptable to the Seller (on behalf of itself and each of
the Originators)).
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(p) The transfers of Purchased Assets by the Seller to the
Purchaser pursuant to this Agreement, and all other transactions
between the Seller and the Purchaser, have been and will be made in
good faith and without intent to hinder, delay or defraud creditors of
such Seller.
(q) The Seller has timely filed or caused to be filed all
required income tax and sales tax returns and reports and all other
material tax returns and reports required to have been filed and has
paid or caused to be paid all material taxes due pursuant to such
returns or pursuant to any assessment received by the Seller, except
where the payment of any such taxes is being contested in good faith by
appropriate proceedings and for which the Seller has set aside on its
books adequate reserves. The charges, accruals and reserves on the
books of the Seller in respect of such taxes or charges imposed by all
Governmental Entities are, in the opinion of the Seller, adequate for
the payment thereof.
ARTICLE V
COVENANTS
SECTION 5.01. Covenants of the Seller. The Seller covenants from the
date hereof until the first day following the Facility Termination Date on which
all of the Purchased Assets are either collected in full or become Defaulted
Receivables or Defaulted Participation Interests (as the case may be):
(a) Compliance with Laws, Etc. The Seller will comply in all
material respects with all applicable laws, rules, regulations and
orders and preserve and maintain its corporate existence, rights,
franchises, qualifications and privileges except to the extent that the
failure so to comply with such laws, rules and regulations or the
failure so to preserve and maintain such rights, franchises,
qualifications, and privileges could not reasonably be expected to
result in a Material Adverse Effect.
(b) Offices, Records, Name and Organization. The Seller will
keep its principal place of business and chief executive office and the
office where it keeps its records concerning the Purchased Assets at
the address of the Seller set forth on Exhibit D hereto or, upon 30
days' prior written notice to the Purchaser and its assignees, at any
other locations within the United States. The Seller will not change
its name or its jurisdiction of organization, unless (i) the Seller
shall have provided the Purchaser and its assignees with at least 30
days' prior written notice thereof and (ii) no later than the effective
date of such change, all actions required by Section 5.01(j) shall have
been taken and completed. The Seller also will maintain and implement
administrative and operating procedures (including, without limitation,
an ability to recreate records evidencing Purchased Assets and related
Contracts in the event of the destruction of the originals thereof),
and keep and maintain all documents, books, records and other
information
22
reasonably necessary or advisable for the collection of all Purchased
Assets (including, without limitation, records adequate to permit the
daily identification of each new Purchased Asset and all Collections of
and adjustments to each existing Purchased Asset). The Seller shall
make a notation in its books and records, including its computer files,
to indicate that all of its Receivables and Participation Interests
have been sold by it to the Purchaser hereunder.
(c) Performance and Compliance with Contracts and Credit and
Collection Policy. The Seller will, at its expense, timely and fully
perform and comply with all material provisions, covenants and other
promises required to be observed by it under the Contracts related to
the Purchased Receivables and Participated Receivables, and timely and
fully comply in all material respects with the Credit and Collection
Policy in regard to each Purchased Receivable, each Participated
Receivable and the related Contract.
(d) Sales, Liens, Etc. Except for the sales of Purchased
Assets contemplated herein, the Seller will not sell, assign (by
operation of law or otherwise) or otherwise dispose of, or create or
suffer to exist any Adverse Claim upon or with respect to, any
Purchased Asset, Receivable, Related Security, related Contract or
Collections, or upon or with respect to any account to which any
Collections of any Purchased Asset are sent, or assign any right to
receive income in respect thereof.
(e) Extension or Amendment of Purchased Assets. Except as
provided in Section 6.02(c), the Seller will not extend, amend or
otherwise modify the terms of any Purchased Receivable or Participated
Receivable, or amend, modify or waive any term or condition of any
Contract (to which it is a party) related thereto.
(f) Change in Business or Credit and Collection Policy. The
Seller will not make any change in the character of its business or in
the Credit and Collection Policy that could, in either case, reasonably
be expected to result in a Material Adverse Effect.
(g) Change in Payment Instructions to Obligors. The Seller
will not add or terminate any post office box, bank, or bank account as
a Lock-Box, Deposit Bank, Deposit Account, Governmental Entity
Receivables Account or Account Bank from those listed in Exhibit B to
this Agreement, or make any change in its instructions to Obligors
regarding payments to be made to any such box or account, unless the
Purchaser shall have received notice of such addition, termination or
change (including an updated Exhibit B) and a fully executed Deposit
Account Agreement or Governmental Entity Receivables Agreement with
each new Deposit Bank or Account Bank, as the case may be, with respect
to each new Lock-Box, Deposit Account, or Governmental Entity
Receivables Account.
(h) Deposits to Lock-Boxes, Deposit Accounts and Governmental
Entity Receivables Accounts. The Seller will instruct all of the
Obligors that are Governmental
23
Entities other than Contract Payers to remit all their payments in
respect of Participated Receivables to Governmental Entity Receivables
Accounts or Lock-Boxes associated therewith. The Seller will instruct
all of its Obligors that are not Governmental Entities (other than
Contract Payors) to remit all their payments in respect of Purchased
Receivables to Deposit Accounts or Lock-Boxes associated therewith. If
the Seller shall receive any Collections directly, it shall immediately
(and in any event within one Business Day) deposit the same to a
Deposit Account or Governmental Entity Receivables Account, as the case
may be. The Seller will not deposit or otherwise credit, or cause or
permit to be so deposited or credited, to any Lock-Box, Deposit Account
or Governmental Entity Receivables Account cash or cash proceeds other
than Collections of Purchased Receivables and Participated Receivables,
except as provided in the last sentence of this Section 5.01(h).
In furtherance of the foregoing, the Collection Agent agrees
(i) within 30 days from the date of this Agreement, to notify all
Obligors that are not Governmental Entities (other than Contract
Payors) to remit all their payments in respect of Purchased Receivables
to Deposit Accounts or Lock-Boxes associated therewith and (ii)
thereafter, to use ongoing commercially reasonable efforts to obtain
compliance with such notice from those Obligors who have failed to so
comply. The foregoing notwithstanding the Collection Agent acknowledges
that collections on account of accounts receivable belonging to
Xxxxxxxxx.xxx are regularly deposited into the Governmental Entity
Receivables Account and agrees to identify and remove such collections
(from such account) within two Business Days after they are received.
(i) Audits. The Seller will, from time to time during regular
business hours as requested by the Purchaser or its assigns, permit the
Purchaser, or its agents, representatives or assigns, (i) to examine
and make copies of and abstracts from all books, records and documents
(including, without limitation, computer tapes and disks) in the
possession or under the control of the Seller relating to Purchased
Assets and the Related Security, including, without limitation, the
related Contracts, and (ii) to visit the offices and properties of the
Seller for the purpose of examining such materials described in clause
(i) above, and to discuss matters relating to Purchased Assets and the
Related Security or the Seller's performance hereunder or under the
Contracts with any of the officers or employees of the Seller having
knowledge of such matters.
(j) Further Assurances. (i) The Seller agrees from time to
time, at its expense, promptly to execute and deliver all further
instruments and documents, and to take all further actions, that may be
necessary or desirable, or that the Purchaser or its assignees may
reasonably request, to perfect, protect or more fully evidence the sale
of Purchased Assets under this Agreement, or to enable the Purchaser or
its assignees to exercise and enforce its respective rights and
remedies under this Agreement. Without limiting the foregoing, the
Seller will, upon the request of the Purchaser or its assignees, (A)
execute and file such financing or continuation statements, or
amendments thereto, and such other
24
instruments and documents, that may be necessary or desirable to
perfect, protect or evidence such Purchased Assets; and (B) deliver to
the Purchaser copies of all Contracts (to which it is a party) relating
to the Purchased Assets and all records relating to such Contracts and
the Purchased Assets, whether in hard copy or in magnetic tape or
diskette format (which if in magnetic tape or diskette format shall be
compatible with the Purchaser's computer equipment).
(ii) The Seller authorizes the Purchaser or its assignees to
file financing or continuation statements, and amendments thereto and
assignments thereof, relating to the Purchased Assets and the Related
Security, the related Contracts and the Collections with respect
thereto.
(k) Reporting Requirements. The Seller will provide to the
Purchaser the following:
(i) any reports, notices, public filings, financial
information and any other information or correspondence delivered to
the Seller pursuant to the Originator Purchase Agreement;
(ii) as soon as possible and in any event within five days
after the occurrence of each Event of Termination or Incipient Event of
Termination, a statement of a Financial Officer of the Seller setting
forth details of such Event of Termination or Incipient Event of
Termination and the action that the Seller has taken and proposes to
take with respect thereto;
(iii) at least 30 days prior to any change in the Seller's
name or state of incorporation, a notice setting forth the new name or
state of incorporation and the effective date thereof;
(iv) such other information respecting the Purchased Assets or
the condition or operations, financial or otherwise, of the Seller as
the Purchaser may from time to time reasonably request, to the extent
such disclosure is permitted under applicable law, rule or regulation.
Reports and financial statements required to be delivered pursuant to
clauses (i) and (ii) of Section 5.01(k) of the Originator Purchase
Agreement shall be deemed to have been delivered on the date on which
the Parent posts such reports, or reports containing such financial
statements, on the Parent's website on the internet at
xxxx://xxx.xxxxxxx.xxx or when such reports, or reports containing such
financial statements, are posted on the SEC's website at xxx.xxx.xxx.
(l) Separate Conduct of Business. The Seller will: (i)
maintain separate corporate records and books of account from those of
the Purchaser; (ii) conduct its
25
business from an office separate from that of the Purchaser (but which
may be located in the same facility as the Purchaser); (iii) ensure
that all oral and written communications, including without limitation,
letters, invoices, purchase orders, contracts, statements and
applications, will be made solely in its own name; (iv) have stationery
and other business forms and a mailing address and a telephone number
separate from those of the Purchaser; (v) not hold itself out as having
agreed to pay, or as being liable for the obligations of the Purchaser;
(vi) not engage in any transaction with the Purchaser except as
contemplated by this Agreement or as permitted by the other Transaction
Documents; and (vii) in its capacity as shareholder of the Purchaser,
not adopt any special resolution for the voluntary winding up of the
Purchaser without the prior written consent of the Program Agent under
the Financing Agreement.
(m) Originator Purchase Agreement. The Seller will not amend,
waive or modify any provision of the Originator Purchase Agreement or
waive the occurrence of any "Event of Termination" under the Originator
Purchase Agreement, without in each case the prior written consent of
the Purchaser and its assignees; provided, however, that the Seller may
amend the percentage set forth in the definition of "Discount" in the
Originator Purchase Agreement in accordance with the provisions of the
Originator Purchase Agreement without the consent of the Purchaser and
its assignees, provided, further, that the Seller shall promptly notify
the Purchaser and its assignees of any such amendment. The Seller will
perform all of its obligations under the Originator Purchase Agreement
in all material respects and will enforce the Originator Purchase
Agreement in accordance with its terms in all material respects.
(n) Additional Information. If additional information is
requested by the Obligor as to a xxxx or supporting claim documents,
the Seller has or will (or will cause the applicable Originator to)
promptly provide the same, and if any error has been made with respect
to such information, the Seller will (or will cause the applicable
Originator to) promptly correct the same and, if necessary, rebill such
Receivable.
SECTION 5.02. Grant of Security Interest. The Seller and the Purchaser
intend that the transfer of each Purchased Receivable and Participation Interest
hereunder from the Seller to the Purchaser be treated as a sale of all of the
Seller's right, title and interest in, to and under such Purchased Receivable
and Participation Interest and that, immediately after giving effect to the
transfer, the Seller has no further interest (legal or equitable) in any
Purchased Receivable or Participation Interest. The Seller and the Purchaser
shall record each Purchase as a sale or purchase, as the case may be, on its
books and records, and reflect each Purchase in its financial statements and tax
returns as a sale or purchase, as the case may be. In the event that, contrary
to the mutual intent of the Seller and the Purchaser, any Purchase of Purchased
Receivables and/or Participation Interests hereunder is not characterized as a
sale but rather as a collateral transfer for security (or the transactions
contemplated hereby are characterized as a financing transaction), such Purchase
shall be deemed to be a secured financing, secured by a security interest in all
of the Seller's right, title and interest now or hereafter existing and
hereafter arising in, to and under
26
(i) all Receivables now existing and hereafter arising, (ii) all Participation
Interests, (iii) all Related Security, (iv) all Collections with respect to the
items in clauses (i) through (iii), and (v) all proceeds of the foregoing
(collectively, the "Seller Collateral"). In furtherance of the foregoing, the
Seller hereby grants, to the Purchaser a security interest in all of the
Seller's right, title and interest now or hereafter existing in, to and under
the Seller Collateral to secure the repayment of all amounts due and owing by
the Seller to the Purchaser hereunder with accrued interest thereon, if
applicable, whether now or hereafter existing, due or to become due, direct or
indirect, or absolute or contingent (such amounts the "Secured Obligations").
SECTION 5.03. Covenant of the Seller and the Purchaser. Each
of the Seller and the Purchaser shall comply with (and cause to be true and
correct) each of the facts and assumptions relevant to it contained in the
portion of the opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx, LLP (Re:
Substantive Non-Consolidation) entitled "Assumptions of Fact" delivered pursuant
to Section 3.01(f)(i).
ARTICLE VI
ADMINISTRATION AND COLLECTION
SECTION 6.01. Designation of Collection Agent. The servicing,
administration and collection of the Purchased Assets shall be conducted by such
Person (the "Collection Agent") so designated hereunder from time to time. Until
the RFA Final Payment Date, the Seller (or such other Person as may be
designated from time to time under the Financing Agreement) is hereby designated
as, and hereby agrees to perform the duties and obligations of, the Collection
Agent pursuant to the terms hereof. Thereafter, the Purchaser, by notice to the
Seller, may designate as Collection Agent any Person (including itself) to
succeed the Seller or any successor Collection Agent, if such Person shall
consent and agree to the terms hereof. Upon the Seller's receipt of such notice,
the Seller agrees that it will terminate its activities as Collection Agent
hereunder in a manner which the Purchaser (or its designee) believes will
facilitate the transition of the performance of such activities to the new
Collection Agent, and the Seller shall use its best efforts to assist the
Purchaser (or its designee) to take over the servicing, administration and
collection of the Purchased Assets, including, without limitation, providing
access to and copies of all computer tapes or disks and other documents or
instruments that evidence or relate to Purchased Assets maintained in its
capacity as Collection Agent and access to all employees and officers of the
Seller responsible with respect thereto. The Collection Agent may, with the
prior consent of the Purchaser, subcontract with any other Person for the
servicing, administration or collection of Purchased Assets. Any such
subcontract shall not affect the Collection Agent's liability for performance of
its duties and obligations pursuant to the terms hereof, and any such
subcontract shall terminate upon designation of a successor Collection Agent.
SECTION 6.02. Duties of Collection Agent. (a) The Collection Agent
shall take or cause to be taken all such actions as may be necessary or
advisable to collect each Purchased
27
Asset from time to time, all in accordance in all material respects with
applicable laws, rules and regulations, with reasonable care and diligence, and
in accordance with the Credit and Collection Policy. The Purchaser hereby
appoints the Collection Agent, from time to time designated pursuant to Section
6.01, as agent to enforce its ownership and other rights in the Purchased
Assets, the Related Security and the Collections with respect thereto. In
performing its duties as Collection Agent, the Collection Agent shall exercise
the same care and apply the same policies as it would exercise and apply if it
owned the Purchased Assets and shall act in the best interests of the Purchaser
and its assignees.
(b) On or before each Determination Date, the Collection Agent shall
prepare and forward to the Purchaser (i) a Seller Report, relating to all then
outstanding Purchased Assets, and the Related Security and Collections with
respect thereto, in each case, as of the close of business of the Collection
Agent on the last day of the immediately preceding Month, and (ii) if requested
by the Purchaser, a listing by Obligor (other than Contract Payors) of all
Purchased Assets, together with an aging report of such Purchased Assets.
(c) If no Event of Termination or Incipient Event of Termination shall
have occurred and be continuing, the Seller, while it is the Collection Agent,
may, in accordance with the Credit and Collection Policy, extend the maturity or
adjust the Outstanding Balance of any Purchased Receivable or Participated
Receivable as it deems appropriate to maximize Collections thereof, or otherwise
amend or modify other terms of any Purchased Receivable or Participated
Receivable.
(d) The Seller shall deliver to the Collection Agent, and the
Collection Agent shall hold in trust for the Seller and the Purchaser in
accordance with their respective interests, all documents, instruments and
records (including, without limitation, computer tapes or disks) which evidence
or relate to Purchased Assets.
(e) The Collection Agent shall as soon as practicable following receipt
turn over to the Seller (or other person entitled thereto) any cash collections
or other cash proceeds received with respect to Receivables not constituting
Purchased Receivables or Participated Receivables.
(f) The Collection Agent also shall perform the other obligations of
the "Collection Agent" set forth in this Agreement with respect to the Purchased
Assets.
SECTION 6.03. Collection Agent Fee. The Purchaser shall pay to the
Collection Agent, so long as it is acting as the Collection Agent hereunder, a
periodic collection fee (the "Collection Agent Fee") of 1.00% per annum on the
average daily aggregate Outstanding Balance of the Purchased Assets, payable in
arrears on each Settlement Date or such other day during each Month as the
Purchaser and the Collection Agent shall agree. So long as the Financing
Agreement is in effect, amounts paid to the Collection Agent as "Collection
Agent Fee" pursuant to the Financing Agreement shall reduce, on a
dollar-for-dollar basis, the obligation of the
28
Purchaser to pay the Collection Agent Fee hereunder, provided that such
obligation of the Purchaser shall in no event be reduced below zero.
SECTION 6.04. Certain Rights of the Purchaser. (a) The Purchaser may,
at any time during the existence of an Event of Termination or Incipient Event
of Termination, give notice of ownership and/or direct the Obligors of Purchased
Assets and any Person obligated on any Related Security, or any of them, that
payment of all amounts payable under any Purchased Asset shall be made directly
to the Purchaser or its assignees. The Seller hereby transfers to the Purchaser
(and its assigns and designees) the exclusive ownership and control of the
Lock-Boxes and Deposit Accounts maintained by the Seller for the purpose of
receiving Collections (other than Collections from Governmental Entities).
(b) The Seller shall, at any time during the existence of an Event of
Termination or Incipient Event of Termination upon the Purchaser's request and
at the Seller's expense, give notice of the Purchaser's ownership to each
Obligor of Purchased Assets and, to the extent permitted under applicable law,
direct that payments of all amounts payable under the Purchased Receivables or
Participated Receivables be made directly to the Purchaser or its assignees.
(c) At the Purchaser's request and at the Seller's expense, the Seller
and the Collection Agent shall (A) assemble all of the documents, instruments
and other records (including, without limitation, computer tapes and disks) that
evidence or relate to the Purchased Assets, and the related Contracts and
Related Security, or that are otherwise necessary or desirable to collect the
Purchased Receivables and Participated Receivables, and shall make the same
available to the Purchaser at a place selected by the Purchaser or its designee,
and (B) segregate all cash, checks and other instruments received by it from
time to time constituting Collections of Purchased Assets in a manner acceptable
to the Purchaser and, promptly upon receipt, remit all such cash, checks and
instruments, duly indorsed or with duly executed instruments of transfer, to the
Purchaser or its designee. The Purchaser shall also have the right to make
copies of all such documents, instruments and other records at any time.
(d) The Seller authorizes the Purchaser to take any and all steps in
the Seller's name and on behalf of the Seller that are necessary or desirable,
in the determination of the Purchaser, to collect amounts due under the
Purchased Receivables and Participated Receivables, including, without
limitation, endorsing the Seller's name on checks and other instruments
representing Collections of Purchased Assets and enforcing the Purchased
Receivables and Participated Receivables and the Related Security and related
Contracts.
SECTION 6.05. Rights and Remedies. (a) If the Seller or the Collection
Agent fails to perform any of its obligations under this Agreement, the
Purchaser may (but shall not be required to) (after notice to the Seller or
Collection Agent and such failure to perform, if capable of being cured, is not
cured within 10 days after such notice is sent) itself perform, or cause
performance of, such obligation, and, if the Seller (as Collection Agent or
otherwise) fails to so
29
perform, the costs and expenses of the Purchaser incurred in connection
therewith shall be payable by the Seller as provided in Section 8.01 or Section
9.04 as applicable.
(b) The Seller shall perform all of its obligations under the Contracts
related to the Purchased Receivables and Participated Receivables to the same
extent as if the Seller had not sold Receivables or Participation Interests
hereunder and the exercise by the Purchaser of its rights hereunder shall not
relieve the Seller from such obligations or its obligations with respect to the
Purchased Receivables and Participated Receivables. The Purchaser shall not have
any obligation or liability with respect to any Purchased Receivables and
Participated Receivables or related Contracts, nor shall the Purchaser be
obligated to perform any of the obligations of the Seller thereunder.
(c) The Seller shall cooperate with the Collection Agent in collecting
amounts due from Obligors in respect of the Purchased Receivables and
Participated Receivables.
(d) The Seller hereby grants to Collection Agent an irrevocable power
of attorney, with full power of substitution, coupled with an interest, to take
in the name of the Seller all steps necessary or advisable to endorse, negotiate
or otherwise realize on any writing or other right of any kind held or
transmitted by the Seller or transmitted or received by Purchaser (whether or
not from the Seller) in connection with any Purchased Asset.
SECTION 6.06. Transfer of Records to Purchaser. Each Purchase of
Receivables and Participation Interests hereunder shall include the transfer to
the Purchaser of all of the Seller's right and title to and interest in the
records relating to such Receivables or Participation Interests (as the case may
be) and, subject to the rights of any licensors and applicable law, shall
include an irrevocable non-exclusive license to the use of the Seller's computer
software system to access and create such records. Such license shall be without
royalty or payment of any kind, is coupled with an interest, and shall be
irrevocable until all of the Purchased Assets are either collected in full or
become Defaulted Receivables or Defaulted Participation Interests (as the case
may be).
The Seller shall take such action requested by the Purchaser, from time
to time hereafter, that may be necessary or appropriate to ensure that the
Purchaser has an enforceable ownership interest in the records relating to the
Purchased Assets and rights (whether by ownership, license or sublicense) to the
use of the Seller's computer software system to access and create such records,
subject to the rights of any licensors and applicable law.
In recognition of the Seller's need to have access to the records
transferred to the Purchaser hereunder, the Purchaser hereby grants to the
Seller an irrevocable license to access such records in connection with any
activity arising in the ordinary course of the Seller's business or in
performance of its duties as Collection Agent, provided that (i) the Seller
shall not disrupt or otherwise interfere with the Purchaser's use of and access
to such records during such license period and (ii) the Seller consents to the
assignment and delivery of the records (including any
30
information contained therein relating to the Seller or its operations) to any
assignees or transferees of the Purchaser provided they agree to hold such
records confidential.
ARTICLE VII
EVENTS OF TERMINATION
SECTION 7.01. Events of Termination. If any of the following events
("Events of Termination") shall occur and be continuing:
(a) The Collection Agent (i) shall fail to perform or observe
any term, covenant or agreement under this Agreement (other than as
referred to in clause (ii) or (iii) of this subsection (a)) and such
failure, if capable of being cured, shall remain unremedied for ten
days or (ii) shall fail to make when due any payment or deposit to be
made by it under this Agreement or (iii) shall fail to deliver any
Seller Report when required and such failure shall remain unremedied
for one Business Day (provided that the grace period in this clause
(iii) may not be utilized more than once in any Month); or
(b) The Seller shall fail to make any payment required under
Section 2.04(a) or 2.04(b); or
(c) Any representation or warranty (unless such representation
or warranty relates solely to one or more specific Receivables
incorrectly characterized as Eligible Receivables and the Seller shall
have made any required deemed Collection payment pursuant to Section
2.04 with respect to such Receivables) made or deemed made by the
Seller (or any of its officers) under or in connection with this
Agreement or any information or report delivered by the Seller pursuant
to this Agreement shall prove to have been incorrect or untrue in any
material respect when made or deemed made or delivered; or
(d) The Seller shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement on its part to
be performed or observed and any such failure shall remain unremedied
for 10 days after written notice thereof shall have been given to the
Seller by the Purchaser or its assignees, provided that failure to
perform or observe any covenant contained in Sections 5.01(b), 5.01(d),
5.01(g), and 5.01(h) shall not be entitled to the benefit of such
10-day period; or
(e) The Seller or the Collection Agent shall fail to pay any
principal of or premium or interest on any of its Debt which is
outstanding in a principal amount of at least $25,000,000 in the
aggregate when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and
such failure shall continue after the applicable grace period, if any,
specified in the agreement or
31
instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid (other than by a regularly scheduled
required prepayment), redeemed, purchased or defeased, or an offer to
repay, redeem, purchase or defease such Debt shall be required to be
made, in each case prior to the stated maturity thereof; or
(f) Any Purchase of Receivables or Participation Interests
hereunder, the Related Security and the Collections with respect
thereto shall for any reason cease to constitute valid and perfected
ownership of such Receivables, Participation Interests, Related
Security and Collections free and clear of any Adverse Claim; or
(g) The Seller or the Collection Agent shall generally not pay
its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Seller or the Collection Agent seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding
up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry
of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part
of its property and, in the case of any such proceeding instituted
against it (but not instituted by it), either such proceeding shall
remain undismissed or unstayed for a period of 60 days, or any of the
actions sought in such proceeding (including, without limitation, the
entry of an order for relief against, or the appointment of a receiver,
trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or any proceeding or
petition shall be instituted or adopted for the winding up of the
Seller (whether or not in the context of a bankruptcy or insolvency
proceeding) or the Seller shall take any corporate action to authorize
any of the actions set forth above in this subsection (g); or
(h) An Event of Termination shall have occurred under the
Originator Purchase Agreement or the Financing Agreement; or
(i) There shall have occurred any event which may materially
adversely affect the collectibility of the Purchased Assets or the
ability of the Seller or the Collection Agent to collect Purchased
Assets or otherwise perform its respective obligations under this
Agreement;
then, and in any such event, the Purchaser may in its sole discretion without
regard to Section 9.08, by notice to the Parent and the Seller take either or
both of the following actions: (x) declare the Facility Termination Date to have
occurred (in which case the Facility Termination
32
Date shall be deemed to have occurred), and all Purchases hereunder shall cease
immediately and (y) following the RFA Final Payment Date, without limiting any
right under this Agreement to replace the Collection Agent, designate another
Person to succeed the Seller (or any successor Collection Agent) as Collection
Agent; provided, that, automatically upon the occurrence of any event (without
any requirement for the passage of time or the giving of notice) described in
paragraph (g) of this Section 7.01, the Facility Termination Date shall occur,
the Seller (if it is then serving as the Collection Agent) shall cease to be the
Collection Agent, and the Purchaser (or, prior to the RFA Final Payment Date,
the Person designated under the Financing Agreement) shall become the Collection
Agent. Upon any such declaration or designation or upon such automatic
termination, the Purchaser shall have, in addition to the rights and remedies
under this Agreement, all other rights and remedies with respect to the
Receivables provided after default under the UCC and under other applicable law,
which rights and remedies shall be cumulative.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01. Indemnities by the Seller. Without limiting any other
rights which the Purchaser may have hereunder or under applicable law, the
Seller hereby agrees to indemnify the Purchaser and its assigns and transferees
(each, an "Indemnified Party"), from and against any and all damages, claims,
losses, liabilities and related costs and expenses, including reasonable
attorneys' fees and disbursements (all of the foregoing being collectively
referred to as "Indemnified Amounts"), awarded against or incurred by any
Indemnified Party arising out of or as a result of this Agreement or the
purchase of any Purchased Assets or in respect of any Purchased Asset,
Participated Receivable or any Contract, including, without limitation, arising
out of or as a result of:
(i) the characterization in any Seller Report or other
statement made by the Seller of any Purchased Receivable or
Participated Receivable as an Eligible Receivable which is not an
Eligible Receivable as of the date on which such information was
certified;
(ii) any representation or warranty or statement made or
deemed made by the Seller (or any of its officers) under or in
connection with this Agreement, which shall have been incorrect in any
material respect when made;
(iii) the failure by the Seller to comply with any applicable
law, rule or regulation with respect to any Purchased Asset,
Participated Receivable or the related Contract; or the failure of any
Purchased Asset, Participated Receivable or the related Contract to
conform to any such applicable law, rule or regulation;
(iv) the failure to vest in the Purchaser absolute ownership
of the Purchased Receivables and Participation Interests that are, or
that purport to be, the subject of a
33
Purchase under this Agreement and the Related Security and Collections
in respect thereof, free and clear of any Adverse Claim;
(v) the failure of the Seller to have filed, or any delay in
filing, financing statements or other similar instruments or documents
under the UCC of any applicable jurisdiction or other applicable laws
with respect to any Purchased Receivables or Participation Interests
that are, or that purport to be, the subject of a Purchase under this
Agreement and the Related Security and Collections in respect thereof,
whether at the time of any Purchase or at any subsequent time;
(vi) any dispute, claim, offset or defense (other than
discharge in bankruptcy of the Obligor) of the Obligor to the payment
of any Receivable that is, or that purports to be, the subject of (A) a
Purchase under this Agreement, or (B) a Participation Interest
purchased under this Agreement from the Seller (including, without
limitation, a defense based on such Receivable or the related Contract
not being a legal, valid and binding obligation of such Obligor
enforceable against it in accordance with its terms), or any other
claim resulting from the sale of the merchandise or services related to
such Receivable or the furnishing or failure to furnish such
merchandise or services or relating to collection activities with
respect to such Receivable (if such collection activities were
performed by the Seller acting as Collection Agent);
(vii) any failure of the Seller to perform its duties or
obligations in accordance with the provisions hereof or to perform its
duties or obligations under any Contract related to a Purchased
Receivable or Participated Receivable;
(viii) any products liability or other claim arising out of or
in connection with merchandise, insurance or services which are the
subject of any Contract related to a Purchased Receivable or
Participated Receivable;
(ix) the commingling of Collections of Purchased Assets by the
Seller (or a designee of the Seller), as Collection Agent or otherwise,
at any time with other funds of the Seller or an Affiliate of the
Seller;
(x) any investigation, litigation or proceeding related to
this Agreement or the use of proceeds of Purchases by the Seller or the
ownership by the Seller of Receivables, Participation Interests (and
the Government Receivables with respect thereto) the Related Security,
or Collections with respect thereto or in respect of any Receivable,
Participation Interests (and the Government Receivables with respect
thereto) Related Security or Contract;
(xi) any failure of the Seller to comply with its covenants
contained in this Agreement;
34
(xii) any claim brought by any Person other than an
Indemnified Party arising from any activity the Seller or any designee
of the Seller in servicing, administering or collecting any Purchased
Asset or Participated Receivable; or
(xiii) any Purchased Asset becoming (in whole or in part) a
Diluted Receivable or a Diluted Participation Interest; or
(xiv) in the case of a Contract between an Originator and a
PBM, where such PBM acts as an agent for Contract Payors rather than as
a principal, the inability of the Program Agent, as collateral assignee
pursuant to this Agreement and the other Purchase Agreements of such
Contract, to enforce any Receivable arising under such contract
directly (by contract or by operation of law) against such Contract
Payor, except to the extent such Contract Payor is a Governmental
Entity and such enforcement rights are limited by the 1972 Amendments
to the Social Security Act; or
(xv) the inability of the Purchaser to exercise its rights
under this Agreement to review any Contract which contains a
confidentiality provision that purports to restrict its ability to do
so, or any litigation or proceeding relating to any such
confidentiality provision.
It is expressly agreed and understood by the parties hereto (i) that the
foregoing indemnification is not intended to, and shall not, constitute a
guarantee of the collectibility or payment of the Purchased Assets and (ii) that
nothing in this Section 8.01 shall require the Seller to indemnify any Person
(A) for Purchased Receivables and Participation Interests which are not
collected, not paid or uncollectible on account of the insolvency, bankruptcy,
or financial inability to pay of the applicable Obligor, (B) for damages,
losses, claims or liabilities or related costs or expenses to the extent found
in a final non-appealable judgment of a court of competent jurisdiction to have
resulted from such Person's gross negligence or willful misconduct, or (C) for
any income taxes or franchise taxes measured by income incurred by such Person
arising out of or as a result of this Agreement or in respect of any Purchased
Asset, Participated Receivable or any Contract.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or consent to any departure by the Seller therefrom
shall be effective unless in a writing signed by the Purchaser and, in the case
of any amendment, also signed by the Seller, and then such amendment, waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given. No failure on the part of the Purchaser to exercise,
and no delay in exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right.
35
SECTION 9.02. Notices, Etc. All notices and other communications
hereunder shall, unless otherwise stated herein, be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by facsimile, to each party hereto, at its address set
forth on Exhibit D hereto or at such other address as shall be designated by
such party in a written notice to the other parties hereto. All notices and
communications given to any party hereto shall be deemed to have been given on
the date of receipt.
SECTION 9.03. Binding Effect; Assignability. (a) This Agreement shall
be binding upon and inure to the benefit of the Seller, the Purchaser and their
respective successors and assigns; provided, however, that the Seller may not
assign its rights or obligations hereunder or any interest herein without the
prior written consent of the Purchaser. In connection with any sale or
assignment by the Purchaser of all or a portion of the Purchased Assets, the
buyer or assignee, as the case may be, shall, to the extent of its purchase or
assignment, have all rights of the Purchaser under this Agreement (as if such
buyer or assignee, as the case may be, were the Purchaser hereunder) except to
the extent specifically provided in the agreement between the Purchaser and such
buyer or assignee, as the case may be.
(b) This Agreement shall create and constitute the continuing
obligations of the parties hereto in accordance with its terms, and shall remain
in full force and effect until such time, after the Facility Termination Date,
when all of the Purchased Receivables and Participated Receivables are either
collected in full or become Defaulted Receivables; provided, however, that
rights and remedies with respect to any breach of any representation and
warranty made by the Seller pursuant to Article IV and the provisions of Article
VIII and Sections 9.04, 9.05 and 9.06 shall be continuing and shall survive any
termination of this Agreement.
SECTION 9.04. Costs, Expenses and Taxes. (a) In addition to the rights
of indemnification granted to the Purchaser pursuant to Article VIII hereof, the
Seller agrees to pay on demand all costs and expenses in connection with the
preparation, execution and delivery of this Agreement and the other documents
and agreements to be delivered hereunder, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the Purchaser with
respect thereto and with respect to advising the Purchaser as to its rights and
remedies under this Agreement, and the Seller agrees to pay all costs and
expenses, if any (including reasonable counsel fees and expenses), in connection
with the enforcement of this Agreement and the other documents to be delivered
hereunder excluding, however, any costs of enforcement or collection of
Purchased Assets which are not paid on account of the insolvency, bankruptcy or
financial inability to pay of the applicable Obligor.
(b) In addition, the Seller agrees to pay any and all stamp and other
taxes and fees payable in connection with the execution, delivery, filing and
recording of this Agreement or the other documents or agreements to be delivered
hereunder, and the Seller agrees to save each Indemnified Party harmless from
and against any liabilities with respect to or resulting from any delay in
paying or omission to pay such taxes and fees.
36
SECTION 9.05. No Proceedings. The Seller hereby agrees that it will not
institute against, or join any other Person in instituting against, the
Purchaser any proceeding of the type referred to in Section 7.01(g) so long as
there shall not have elapsed one year plus one day since the later of (i) the
Facility Termination Date and (ii) the date on which all of the Purchased
Receivables and Participated Receivables are either collected in full or become
Defaulted Receivables.
SECTION 9.06. Confidentiality. Unless otherwise required by applicable
law, each party hereto agrees to maintain the confidentiality of this Agreement
in communications with third parties and otherwise; provided that this Agreement
may be disclosed to (i) third parties to the extent such disclosure is made
pursuant to a written agreement of confidentiality in form and substance
reasonably satisfactory to the other party hereto, and (ii) such party's legal
counsel and auditors and the Purchaser's assignees, if they agree in each case
to hold it confidential.
SECTION 9.07. GOVERNING LAW. THIS AGREEMENT SHALL, IN ACCORDANCE WITH
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD CALL FOR
THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION, EXCEPT TO THE EXTENT
THAT, PURSUANT TO THE UCC OF THE STATE OF NEW YORK, THE PERFECTION AND THE
EFFECT OF PERFECTION OR NON- PERFECTION OF THE PURCHASER'S OWNERSHIP OF OR
SECURITY INTEREST IN THE RECEIVABLES ARE GOVERNED BY THE LAWS OF A JURISDICTION
OTHER THAN THE STATE OF NEW YORK.
SECTION 9.08. Third Party Beneficiary. Each of the parties hereto
hereby acknowledges that the Purchaser may assign all or any portion of its
rights under this Agreement and that such assignees may (except as otherwise
agreed to by such assignees) further assign their rights under this Agreement,
and the Seller hereby consents to any such assignments. All such assignees,
including parties to the Financing Agreement in the case of assignment to such
parties, shall be third party beneficiaries of, and shall be entitled to enforce
the Purchaser's rights and remedies under, this Agreement to the same extent as
if they were parties thereto, except to the extent specifically limited under
the terms of their assignment.
SECTION 9.09. Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which when so executed shall be deemed to
be an original and all of which when taken together shall constitute one and the
same agreement.
SECTION 9.10. Consent to Jurisdiction. (a) Each party hereto hereby
irrevocably submits to the non-exclusive jurisdiction of any New York State or
Federal court sitting in New York City in any action or proceeding arising out
of or relating to this Agreement or the other Transaction Documents, and each
party hereto hereby irrevocably agrees that all claims in respect
37
of such action or proceeding may be heard and determined in such New York State
court or, to the extent permitted by law, in such Federal court. The parties
hereto hereby irrevocably waive, to the fullest extent they may effectively do
so, the defense of an inconvenient forum to the maintenance of such action or
proceeding. The Purchaser hereby irrevocably appoints CT Corporation (the
"Process Agent"), with an office on the date hereof at 111 8th Avenue, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx, as its agent to receive on
behalf of the Purchaser and its property service of copies of the summons and
complaint and any other process which may be served in any such action or
proceeding. Such service may be made by mailing or delivering a copy of such
process to the Purchaser in care of the Process Agent at the Process Agent's
above address, and the Purchaser hereby irrevocably authorizes and directs the
Process Agent to accept such service on its behalf. The parties hereto agree
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
(b) Each of the parties hereto consents to the service of any and all
process in any such action or proceeding by the mailing of copies of such
process to it at its address specified in Section 9.02. Nothing in this Section
9.10 shall affect the right of the Purchaser or its assignees to serve legal
process in any other manner permitted by law.
(c) To the extent that the Purchaser has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, the
Purchaser hereby irrevocably waives such immunity in respect of its obligations
under this Agreement or any other Transaction Document.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH THIS AGREEMENT OR ANY DOCUMENT EXECUTED OR DELIVERED PURSUANT HERETO.
SECTION 9.12. Judgment. (a) If for the purposes of obtaining judgment
in any court it is necessary to convert a sum due hereunder in U.S. Dollars into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the judgment creditor could purchase
U.S. Dollars with such other currency at New York, New York on the Business Day
preceding that on which final judgment is given.
(b) The obligation of any party hereto (an "Obligor Party") in respect
of any sum due from it to any other party hereto (the "Obligee") hereunder
shall, notwithstanding any judgment in a currency other than U.S. Dollars, be
discharged only to the extent that on the Business Day following receipt by the
Obligee of any sum adjudged to be so due in such other
38
currency, the Obligee may in accordance with normal banking procedures purchase
U.S. Dollars with such other currency; if the U.S. Dollars so purchased are less
than the sum originally due to the Obligee in U.S. Dollars, the Obligor Party
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify the Obligee against such loss, and if the U.S. Dollars so purchased
exceed the sum originally due to the Obligee in U.S. Dollars, the Obligee shall
remit to the Obligor Party such excess.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
SELLER AND
COLLECTION AGENT: RITE AID HDQTRS. FUNDING, INC.
By:
---------------------------------------
Title:
------------------------------------
PURCHASER: RITE AID FUNDING I
By:
---------------------------------------
Title:
------------------------------------
39
SCHEDULE 1
Intentionally Omitted.
Sch 1-1
SCHEDULE 2
MONTHS
Fiscal Year 2004
----------------
Period Start End # of Wks
------ ----- --- --------
1 3/2/2003 3/29/2003 4
2 3/30/2003 4/26/2003 4
3 4/27/2003 5/31/2003 5
4 6/1/2003 6/28/2003 4
5 6/29/2003 7/26/2003 4
6 7/27/2003 8/30/2003 5
7 8/31/2003 9/27/2003 4
8 9/28/2003 10/25/2003 4
9 10/26/2003 11/29/2003 5
10 11/30/2003 12/27/2003 4
11 12/28/2003 1/24/2004 4
12 1/25/2004 2/28/2004 5
Sch 2-1
SCHEDULE 2
MONTHS
Fiscal Year 2005 (leap year)
----------------------------
Period Start End # of Wks
------ ----- --- --------
1 2/29/2004 3/27/2004 4
2 3/28/2004 4/24/2004 4
3 4/25/2004 5/29/2004 5
4 5/30/2004 6/26/2004 4
5 6/27/2004 7/24/2004 4
6 7/25/2004 8/28/2004 5
7 8/29/2004 9/25/2004 4
8 9/26/2004 10/23/2004 4
9 10/24/2004 11/27/2004 5
10 11/28/2004 12/25/2004 4
11 12/26/2004 1/22/2005 4
12 1/23/2005 2/26/2005 5
Sch 2-2
SCHEDULE 2
MONTHS
Fiscal Year 2006 (53 weeks)
---------------------------
Period Start End # of Wks
------ ----- --- --------
1 2/27/2005 3/26/2005 4
2 3/27/2005 4/23/2005 4
3 4/24/2005 5/28/2005 5
4 5/29/2005 6/25/2005 4
5 6/26/2005 7/23/2005 4
6 7/24/2005 8/27/2005 5
7 8/28/2005 9/24/2005 4
8 9/25/2005 10/22/2005 4
9 10/23/2005 11/26/2005 5
10 11/27/2005 12/31/2005 5
11 1/1/2006 1/28/2006 4
12 1/29/2006 3/4/2006 5
Sch 2-3
SCHEDULE 2
MONTHS
Fiscal Year 2007
----------------
Period Start End # of Wks
------ ----- --- --------
1 3/5/2006 4/1/2006 4
2 4/2/2006 4/29/2006 4
3 4/30/2006 6/3/2006 5
4 6/4/2006 7/1/2006 4
5 7/2/2006 7/29/2006 4
6 7/30/2006 9/2/2006 5
7 9/3/2006 9/30/2006 4
8 10/1/2006 10/28/2006 4
9 10/29/2006 12/2/2006 5
10 12/3/2006 12/30/2006 4
11 12/31/2006 1/27/2007 4
12 1/28/2007 3/3/2007 5
Sch 2-4
SCHEDULE 2
MONTHS
Fiscal Year 2008 (leap year)
----------------------------
Period Start End # of Wks
------ ----- --- --------
1 3/4/2007 3/31/2007 4
2 4/1/2007 4/28/2007 4
3 4/29/2007 6/2/2007 5
4 6/3/2007 6/30/2007 4
5 7/1/2007 7/28/2007 4
6 7/29/2007 9/1/2007 5
7 9/2/2007 9/29/2007 4
8 9/30/2007 10/27/2007 4
9 10/28/2007 12/1/2007 5
10 12/2/2007 12/29/2007 4
11 12/30/2007 1/26/2008 4
12 1/27/2008 3/1/2008 5
Sch 2-5
SCHEDULE 2
MONTHS
Fiscal Year 2009
----------------
Period Start End # of Wks
------ ----- --- --------
1 3/2/2008 3/29/2008 4
2 3/30/2008 4/26/2008 4
3 4/27/2008 5/31/2008 5
4 6/1/2008 6/28/2008 4
5 6/29/2008 7/26/2008 4
6 7/27/2008 8/30/2008 5
7 8/31/2008 9/27/2008 4
8 9/28/2008 10/25/2008 4
9 10/26/2008 11/29/2008 5
10 11/30/2008 12/27/2008 4
11 12/28/2008 1/24/2009 4
12 1/25/2009 2/28/2009 5
Sch 2-6
SCHEDULE 3
MATERIAL LITIGATION
I. INVESTIGATIONS AND LITIGATION MATTERS.
1. US Attorney Eastern District PA investigation regarding PBM
matters. Investigation pending.
2. There are currently pending federal governmental
investigations, both civil and criminal, by the United States
Attorney, involving various matters related to prior
management's business practices. We are cooperating fully with
the United States Attorney. We have begun settlement
discussions with the United States Attorney for the Middle
District of Pennsylvania. The United States Attorney has
proposed that the government would not institute any criminal
proceeding against us if we enter into a consent judgment
providing for a civil penalty payable over a period of years.
The amount of the civil penalty has not been agreed to and
there can be no assurance that a settlement will be reached or
that the amount of such penalty will not have a material
adverse effect on our financial condition and results of
operations. We have recorded an accrual of $20.0 million in
fiscal year 2003 in connection with the resolution for these
matters; however, we may incur charges in excess of that
amount and we are unable to estimate the possible range of
loss. We will continue to evaluate our estimate and to the
extent that additional information arises or our strategy
changes, we will adjust our accrual accordingly.
These investigations and settlement discussions are ongoing and we
cannot predict their outcomes. If we were convicted of any crime, certain
licenses and government contracts such as Medicaid plan reimbursement agreements
that are material to our operations may be revoked, which would have a material
adverse effect on our results of operations, financial condition or cash flows.
In addition, substantial penalties, damages or other monetary remedies assessed
against us, including a settlement, could also have a material adverse effect on
our results of operations, financial condition or cash flows.
II. OTHER LITIGATION MATTERS
We, together with a significant number of major U.S. retailers, have
been sued by the Lemelson Foundation in a complaint which alleges that portions
of the technology included in our
Sch 3-1
point-of-sale system infringe upon a patent held by the plaintiffs. The amount
of damages sought is unspecified and may be material. We cannot predict the
outcome of this litigation or whether it could result in a material adverse
effect on our results of operations, financial conditions or cash flows
(Lemelson Medical, Education & Research Foundation Limited Partnership v. Rite
Aid Corporation et al.; Case XXX00-0000 XXX XXX, X.X. Xxxxxxxx Xxxxx, Xxxxxxxx
of Arizona).
We are subject from time to time to lawsuits arising in the ordinary
course of business. In the opinion of our management, these matters are
adequately covered by insurance or, if not so covered, are without merit or are
of such nature or involve amounts that would not have a material adverse effect
on our financial condition, results of operations or cash flows if decided
adversely.
Sch 3-2
EXHIBIT A
CREDIT AND COLLECTION POLICY
A-1
EXHIBIT B
DEPOSIT BANKS, LOCK BOXES AND DEPOSIT ACCOUNTS
DEPOSIT BANK NAME AND ADDRESS LOCK BOX (POST OFFICE DEPOSIT ACCOUNT
BOX) NUMBER NUMBER
Mellon Bank, Pittsburgh 360321 -
Mellon Bank - 069-3636
ACCOUNT BANKS AND GOVERNMENTAL ENTITY RECEIVABLES ACCOUNTS
ACCOUNT BANK NAME AND ADDRESS LOCK BOX (POST OFFICE GOVERNMENTAL
BOX) NUMBER ENTITY RECEIVABLES
ACCOUNT NUMBER
MELLON BANK, PHILADELPHIA 007020 -
MELLON BANK, XXXXXXXXXX 000000 -
MELLON BANK - 103-7294
B-1
EXHIBIT C
Intentionally Omitted
C-1
EXHIBIT D
ADDRESSES
PURCHASER: Rite Aid Funding I
00 Xxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx Sari
Facsimile No. (000) 000-0000
SELLER AND Rite Aid Hdqtrs. Funding, Inc.
COLLECTION AGENT: 00 Xxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx Sari
Facsimile No. (000) 000-0000
D-1
