Exhibit 99.1
EXECUTION COPY
DATED AS OF APRIL 29, 2010
AMONG
AMERISOURCE RECEIVABLES FINANCIAL CORPORATION, AS SELLER,
AMERISOURCEBERGEN DRUG CORPORATION, AS INITIAL SERVICER,
THE VARIOUS PURCHASERS GROUPS FROM TIME TO TIME PARTY HERETO
AND
BANK OF AMERICA, NATIONAL ASSOCIATION, AS ADMINISTRATOR
TABLE OF CONTENTS
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ARTICLE I. PURCHASE ARRANGEMENTS |
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Section 1.1 |
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Purchase Facility |
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1 |
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Section 1.2 |
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Incremental Purchases |
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5 |
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Section 1.3 |
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Decreases |
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5 |
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Section 1.4 |
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Deemed Collections; Purchase Limit |
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6 |
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Section 1.5 |
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Payment Requirements and Computations |
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7 |
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Section 1.6 |
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[Reserved] |
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7 |
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Section 1.7 |
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Sharing of Payments, etc. |
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7 |
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ARTICLE II. PAYMENTS AND COLLECTIONS |
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Section 2.1 |
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Payments of Recourse Obligations |
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7 |
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Section 2.2 |
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Collections Prior to the Final Facility Termination Date; Repayment of Certain Demand Advances |
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8 |
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Section 2.3 |
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Repayment of Demand Advances on the Final Facility Termination Date; Collections |
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9 |
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Section 2.4 |
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Payment Rescission |
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10 |
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Section 2.5 |
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Clean Up Call |
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10 |
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ARTICLE III. COMMERCIAL PAPER FUNDING |
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Section 3.1 |
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CP Costs |
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10 |
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Section 3.2 |
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Calculation of CP Costs |
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10 |
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Section 3.3 |
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CP Costs Payments |
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10 |
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Section 3.4 |
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Default Rate |
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10 |
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ARTICLE IV. BANK RATE FUNDINGS |
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Section 4.1 |
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Bank Rate Fundings |
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11 |
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Section 4.2 |
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Yield Payments |
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11 |
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Section 4.3 |
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[Reserved] |
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11 |
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Section 4.4 |
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Suspension of the LIBO Rate |
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11 |
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Section 4.5 |
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Default Rate |
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11 |
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ARTICLE V. REPRESENTATIONS AND WARRANTIES |
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Section 5.1 |
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Representations and Warranties of the Seller |
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11 |
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Section 5.2 |
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Representations and Warranties of the Seller With Respect to Each Sale of Receivables |
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15 |
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Section 5.3 |
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Representations and Warranties of Servicer |
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16 |
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ARTICLE VI. CONDITIONS OF PURCHASES |
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Page |
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Section 6.1 |
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Conditions Precedent to Initial Incremental Purchase; Closing Date |
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19 |
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Section 6.2 |
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Conditions Precedent to All Purchases and Reinvestments |
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19 |
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ARTICLE VII. COVENANTS |
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Section 7.1 |
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Affirmative Covenants of the Seller |
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20 |
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Section 7.2 |
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Negative Covenants of the Seller |
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25 |
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Section 7.3 |
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Affirmative Covenants of the Servicer |
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27 |
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Section 7.4 |
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Negative Covenants of the Servicer |
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31 |
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ARTICLE VIII. ADMINISTRATION AND COLLECTION |
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Section 8.1 |
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Designation of Servicer |
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33 |
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Section 8.2 |
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Duties of Servicer |
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34 |
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Section 8.3 |
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Collection Notices |
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35 |
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Section 8.4 |
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Responsibilities of Seller |
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35 |
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Section 8.5 |
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Settlement Reports |
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36 |
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Section 8.6 |
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Servicing Fee |
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36 |
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ARTICLE IX. AMORTIZATION EVENTS |
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Section 9.1 |
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Amortization Events |
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36 |
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Section 9.2 |
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Remedies |
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40 |
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ARTICLE X. INDEMNIFICATION |
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Section 10.1 |
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Indemnities by the Seller Parties |
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40 |
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Section 10.2 |
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Increased Cost and Reduced Return |
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43 |
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Section 10.3 |
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Other Costs and Expenses |
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43 |
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Section 10.4 |
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Ratings Confirmation |
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43 |
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ARTICLE XI. THE AGENTS |
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Section 11.1 |
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Appointment and Authorization |
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45 |
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Section 11.2 |
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Delegation of Duties |
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46 |
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Section 11.3 |
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Exculpatory Provisions |
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46 |
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Section 11.4 |
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Reliance by Agents |
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46 |
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Section 11.5 |
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Notice of Amortization Events |
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47 |
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Section 11.6 |
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Non-Reliance on Administrator, Purchaser Agents and Other Purchasers |
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48 |
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Section 11.7 |
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Administrators and Affiliates |
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48 |
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Section 11.8 |
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Indemnification |
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48 |
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Section 11.9 |
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Successor Administrator |
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49 |
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ii
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ARTICLE XII. ASSIGNMENTS AND PARTICIPATIONS |
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Section 12.1 |
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Successors and Assigns; Participations; Assignments |
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ARTICLE XIII. MISCELLANEOUS |
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Section 13.1 |
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Waivers and Amendments |
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51 |
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Section 13.2 |
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Notices |
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52 |
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Section 13.3 |
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Protection of Administrator’s Security Interest |
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52 |
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Section 13.4 |
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Confidentiality |
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53 |
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Section 13.5 |
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Bankruptcy Petition |
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54 |
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Section 13.6 |
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Limitation of Liability |
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54 |
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Section 13.7 |
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CHOICE OF LAW |
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54 |
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Section 13.8 |
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CONSENT TO JURISDICTION |
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55 |
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Section 13.9 |
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WAIVER OF JURY TRIAL |
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55 |
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Section 13.10 |
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Integration; Binding Effect; Survival of Terms |
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55 |
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Section 13.11 |
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Counterparts; Severability; Section References |
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56 |
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Section 13.12 |
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Characterization |
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56 |
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Section 13.13 |
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Amendment and Restatement |
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57 |
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Section 13.14 |
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Ratification by Performance Guarantor |
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57 |
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iii
Exhibits and Schedules
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Exhibit I
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Definitions |
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Exhibit II
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Form of Purchase Notice |
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Exhibit III
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Places of Business of the Seller Parties; Locations of Records |
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Exhibit IV
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Form of Compliance Certificate |
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Exhibit V
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Form of Collection Account Agreement |
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Exhibit VI
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Form of Settlement Report |
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Exhibit VII
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Form of Assumption Agreement |
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Exhibit VIII
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Form of Transfer Supplement |
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Exhibit IX
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Form of Performance Undertaking |
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Exhibit X
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List of Responsible Officers |
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Exhibit XI
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Form of Interim Settlement Report |
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Exhibit XII
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Form of Reduction Notice |
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Exhibit XIII
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Form of Legend |
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Exhibit XIV
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Form of Purchase Limit Increase Request |
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Exhibit XV
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Form of Purchase Limit Decrease Request |
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Exhibit XVI
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Form of Accordion Confirmation |
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Schedule
A
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Closing Documents |
iv
(a) Amerisource Receivables Financial Corporation, a Delaware corporation (“Seller”),
(b) AmerisourceBergen Drug Corporation, a Delaware corporation (“ABDC”), as initial
Servicer (the Servicer together with Seller, the “Seller Parties” and each, a “Seller
Party”),
(c) the various Purchaser Groups from time to time party hereto, and
(d) Bank of America, National Association, as administrator for each Purchaser Group
(together with its successors and assigns in such capacity, the “Administrator”).
Unless defined elsewhere herein, capitalized terms used in this Agreement shall have the meanings
assigned to such terms in Exhibit I.
PRELIMINARY STATEMENTS
1. Seller desires to transfer and assign Receivable Interests from time to time.
2. The Purchasers desire to purchase Receivable Interests from Seller from time to time.
3. Bank of America, National Association has been requested and is willing to act as
Administrator on behalf of the Purchasers and their assigns in accordance with the terms hereof.
4. The Seller, the Servicer, the Purchaser Agents and Purchasers party hereto and the
Administrator have previously entered into that certain
Receivables Purchase Agreement, dated as of
July 10, 2003 (as amended, restated, supplemented or otherwise modified through the date hereof,
the “
Original Agreement”).
5. The parties hereto desire to amend and restate the Original Agreement on the terms and
conditions set forth herein.
In consideration of the mutual agreements, provisions and covenants contained herein, the
sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I.
PURCHASE ARRANGEMENTS
Section 1.1 Purchase Facility.
(a) Upon the terms and subject to the conditions of this Agreement (including, without
limitation, Article VI), from time to time prior to the applicable Facility Termination
Date, Seller may request that the Uncommitted Purchasers, or, if an Uncommitted Purchaser (in
its sole discretion) denies such request or is unable to fund (in which case it shall provide
notice of such denial or inability to the Seller, the Administrator and its Purchaser Agent),
request that the Related Committed Purchasers, purchase from Seller undivided ownership interests
in the Receivables and the associated Related Security and Collections (which interest shall be
held by the Administrator on behalf of the applicable Purchasers). Each Uncommitted Purchaser may
(in its sole discretion), and each Related Committed Purchaser severally hereby agrees to, make
Incremental Purchases, on the terms and subject to the conditions hereof before the applicable
Facility Termination Date, ratably based on the applicable Purchaser Group’s Ratable Share of each
Incremental Purchase requested pursuant to Section 1.2 (and, in the case of each Related
Committed Purchaser, its Commitment Percentage of its Purchaser Group’s Ratable Share of such
Purchase); provided that no Purchase shall be made by any Purchaser if, after giving effect
thereto, either (i) if such Purchaser is a Related Committed Purchaser, such Purchaser’s aggregate
Invested Amount would exceed its Available Commitment, (ii) the Group Invested Amount would exceed
the Group Commitment for such Purchaser’s Purchaser Group, or (iii) the aggregate of the Receivable
Interests would exceed 100%. It is the intent of the Conduit Purchasers to fund any Purchases
hereunder through the issuance of Commercial Paper. If for any reason any Conduit Purchaser is
unable, or determines that it is undesirable, to issue Commercial Paper to fund or maintain its
investment in the Receivable Interests, or is unable for any reason to repay such Commercial Paper
upon the maturity thereof, such Conduit Purchaser may avail itself of a Liquidity Funding to the
extent available. If any Purchaser funds or refinances its investment in a Receivable Interest
through any means other than the issuance of Commercial Paper, in lieu of paying CP Costs on the
Invested Amount pursuant to Article III hereof, Seller will pay Yield thereon at the
applicable Yield Rate in accordance with Article IV hereof. Nothing herein shall be deemed
to constitute a commitment of any Conduit Purchaser to issue Commercial Paper.
(b) Seller may, once monthly, during each of the first and fourth calendar quarters of each
year (the “Accordion Period”):
(X) upon at least 10 Business Days’ prior written notice in substantially the
form of Exhibit XIV hereto (a “Purchase Limit Increase Request”) to the
Administrator and each Purchaser Agent, request that each Purchaser Group increase
its respective existing Group Commitment; provided that:
(i) such requested increase shall be in an amount not less than
$50,000,000 in the aggregate and the Purchase Limit after giving effect to
such increases shall not exceed the sum of (A) the Non-Accordion Purchase
Limit and (B) $250,000,000 without the prior written consent of all
Purchaser Agents,
(ii) each Purchaser Agent (on behalf of the related Purchaser Group)
shall, in its sole discretion, make a determination whether or not to grant
any request to increase its Purchaser Group’s Group Commitment under this
clause (b) and shall notify the Seller and the Administrator in
writing of such determination within ten (10) Business Days of receipt of a
Purchase Limit Increase Request; provided that if any Purchaser Agent fails
to so notify the Seller or the Administrator, the applicable Purchasers
2
shall be deemed to have refused to consent to such Purchase Limit
Increase Request,
(iii) the Seller’s request for the increases in the respective Group
Commitments of the Purchaser Groups shall be ratable with respect to each
such Purchaser Group (according to the then existing Group Commitments of
all such Purchaser Groups), and if Purchaser Groups holding less than 100%
of the aggregate Group Commitments of all Purchaser Groups consent to such
increase in their respective Group Commitment, the Seller may request
increases in the Group Commitments of the Purchaser Groups who have
consented (any such Purchaser Group, an “Increasing Purchaser Group”) (by
written notice to the Purchaser Agents for the Increasing Purchaser Groups),
on a ratable basis (based on the then existing Group Commitments of all such
Increasing Purchaser Groups), unless otherwise consented to in writing by
all the Purchaser Agents for such Increasing Purchaser Groups and at the
sole discretion of the Purchaser Agents for each such Increasing Purchaser
Group,
(iv) notwithstanding anything herein to the contrary, (A) to the extent
the Aggregate Invested Amount is at any time equal to or less than the
Non-Accordion Purchase Limit, all Incremental Purchases shall be made during
such time ratably according to each Purchaser’s Ratable Share of the
Non-Accordion Purchase Limit prior to giving effect to any increases under
this clause (b) and (B) so long as the Aggregate Invested Amount is
greater than the Non-Accordion Purchase Limit, all Incremental Purchases
with respect to the Accordion Purchase Limit shall be made ratably according
to each Purchaser’s Accordion Ratable Share of the Accordion Purchase Limit,
(v) on the first day of the second calendar quarter of each year, (A)
the Purchase Limit, if greater than the Non-Accordion Purchase Limit on the
last day of the immediately preceding calendar quarter, shall automatically
be reduced to the Non-Accordion Purchase Limit and each Purchaser Group’s
Group Commitment will revert to the amount shown on its signature page
herein and (B) if the aggregate Accordion Invested Amount is greater than
zero after giving effect to such automatic reduction pursuant to this
sub-clause (v), the Seller shall pay to each Purchaser Agent for the
benefit of the related Purchasers in the Increasing Purchaser Groups
immediately an amount to be applied to reduce such Purchaser’s Accordion
Invested Amount (ratably, according to each Purchaser’s Accordion Invested
Amount), such that after giving effect to such payment, the aggregate
Accordion Invested Amount is equal to zero, and
(vi) the Seller shall (and shall cause the Servicer to) deliver all
documents, instruments, reports, opinions and agreements as the
Administrator and any Purchaser Agent may reasonably request in connection
with making a determination as to whether or not to grant any request under
this clause (b), including, on or prior to the effectiveness of
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any increase pursuant to this clause (b), a confirmation
regarding such increase for each Increasing Purchaser Group, substantially
in the form of Exhibit XVI hereto (an “Accordion Confirmation”) and
executed by the Seller, the Servicer, the Administrator and the Purchaser
Agent for each such Increasing Purchaser Group, an executed copy of which
shall be circulated to each Purchaser Agent by the Administrator, or
(Y) upon at least 10 Business Days’ prior written notice in substantially the
form of Exhibit XV hereto (a “Purchase Limit Decrease Notice”) to the
Administrator and each Purchaser Agent, the Seller may request a reduction in the
Purchase Limit to an amount no less than the Non-Accordion Purchase Limit (ratably,
based on such Purchaser Group’s Accordion Invested Amount after giving effect to any
increases under this clause (b)) and such decrease shall be in an amount not
less than $50,000,000 in the aggregate, and, if the Aggregate Invested Amount would
exceed the Purchase Limit after giving effect to such optional reduction pursuant to
this clause (b), the Seller shall pay to each Purchaser Agent for the
benefit of the related Purchasers immediately upon such optional reduction an amount
to be applied to reduce the Aggregate Invested Amount (ratably, according to each
Purchaser’s aggregate Accordion Invested Amount), such that after giving effect to
such payment, the Aggregate Invested Amount is equal to the Purchase Limit.
(c) Seller may, upon at least 15 days’ notice to the Administrator (which shall promptly
forward a copy to each Purchaser Agent), terminate the purchase facility in whole or reduce, in
whole or in part, the unused portion of the Purchase Limit (but not below the amount which would
cause the Group Invested Amount of any Purchaser Group to exceed its Group Commitment (after giving
effect to such reduction) and, unless terminated in whole, not below $100,000,000); provided that
each partial reduction of the Purchase Limit shall be in an amount equal to $10,000,000 (or a
larger integral multiple of $1,000,000 if in excess thereof). Such reduction shall, unless
otherwise agreed to in writing by the Seller, the Administrator and each Purchaser Agent be applied
ratably to reduce the Group Commitment of each Purchaser Group; provided that if the Seller
requests such reduction or termination during an Accordion Period and the Purchase Limit is then
greater than the Non-Accordion Purchase Limit, the Purchase Limit shall first be reduced to equal
the Non-Accordion Purchase Limit in accordance with Section 1.1(b) prior to effecting any
reduction or termination under this clause (c).
(d) If any Purchaser is a Defaulting Purchaser, then the Seller may, at its sole expense and
effort, upon not less than five Business Days’ prior notice to such Defaulting Purchaser, the
related Defaulting Purchaser Group, the Administrator and each Purchaser Agent, (i) join a new
Purchaser Group to the Agreement and require the Defaulting Purchaser Group to assign and delegate,
without recourse, all of their respective interests, rights and obligations under this Agreement
and the related Transaction Documents to such new Purchaser Group (and in accordance with and
subject to the terms and provisions set forth in this Agreement, including, without limitation
Article XII hereof); provided, that, in connection with such assignment,
such Defaulting Purchaser Group shall have received an amount equal to the outstanding principal of
its Invested Amount, accrued interest thereon, accrued fees and all other amounts payable to it
hereunder and under the other Transaction Documents from the assignees (to the extent of such
outstanding principal and accrued interest and fees) or the Seller (in the case of all other
4
amounts) (the “Defaulting Purchaser Group Payoff Amount”) or (ii) declare the Facility
Termination Date for such Defaulting Purchaser Group to have occurred, whereupon each Purchaser in
such Defaulting Purchaser Group shall be an Exiting Purchaser for all purposes hereunder. Upon the
effectiveness of any such assignment contemplated in clause (i) above, the members of the
Defaulting Purchaser Group shall cease to be parties to this Agreement and shall have no further
rights, obligations or interest under the Transaction Documents (other than any rights, obligations
or interests that by their terms expressly survive any termination thereof). The Defaulting
Purchaser Group’s receipt of payment in full of the Defaulting Purchaser Group Payoff Amount in
connection with any such assignment contemplated in clause (i) above will constitute
payment in full and satisfaction in full of all of the Seller’s obligations to the Defaulting
Purchaser Group under the Transaction Documents (other than with respect to the indemnification and
other liabilities and obligations which by their terms expressly survive any termination thereof).
(e) If, prior to the date of any assignment contemplated by clause (d)(i) above or
declared Facility Termination Date contemplated by clause (d)(ii) above, a Defaulting
Purchaser (i) makes the Incremental Purchase the prior failure of which to make caused such
Purchaser to become a Defaulting Purchaser or (ii) the Administrator, each Purchaser Agent and the
Seller agree in writing in their discretion that such Purchaser should no longer be deemed a
Defaulting Purchaser, the Administrator will, in either case, so notify the parties hereto, and,
upon the date of such Incremental Purchase or the effective date specified in such notice and
subject to any conditions set forth therein, such Defaulting Purchaser shall cease to be a
Defaulting Purchaser and its related Defaulting Purchaser Group shall cease to be a Defaulting
Purchaser Group.
Section 1.2
Incremental Purchases. Seller shall provide the Administrator and each
Purchaser Agent with at least one (1) Business Day’s prior written notice in a form set forth as
Exhibit II hereto of each Incremental Purchase (each, a
“Purchase Notice”) by 12:00 noon
(
New York time) on the Business Day prior to the Purchase Date. Each Purchase Notice shall be
subject to
Section 6.2 hereof and, except as set forth below, shall be irrevocable and
shall specify the requested Purchase Price (which shall not be less than $500,000, or a larger
integral multiple of $100,000, with respect to each Purchaser Group) and the Purchase Date.
Following receipt of a Purchase Notice, the applicable Purchaser Agent will determine whether the
related Uncommitted Purchaser will fund the requested Incremental Purchase. If such Uncommitted
Purchaser (in its sole discretion) elects not to fund an Incremental Purchase, the Incremental
Purchase shall be funded ratably by its Related Committed Purchasers (in accordance with such
Related Committed Purchasers’ Available Commitments). On each Purchase Date, upon satisfaction of
the applicable conditions precedent set forth in
Article VI, each applicable Purchaser
shall deposit to the Facility Account, in immediately available funds, no later than 2:00 p.m. (
New
York time), an amount equal to such Purchaser’s portion (based on each Purchaser Group’s Ratable
Share and, if applicable, such Purchaser’s Available Commitment) of the requested Purchase Price.
Section 1.3 Decreases. Seller shall provide the Administrator and each Purchaser
Agent with prior written irrevocable notice in the form set forth as Exhibit XII hereto (a
“Reduction Notice”) of any proposed reduction of Aggregate Invested Amount at least one Business
Day prior to any such proposed reduction. Such Reduction Notice shall designate (i) the date (the
“Proposed Reduction Date”) upon which any such reduction of Aggregate Invested Amount shall occur,
and (ii) the amount of Aggregate Invested Amount to be reduced (the
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“Aggregate Reduction”) which shall be applied to all Receivable Interests (ratably, according
to each Purchaser’s aggregate Invested Amount).
Section 1.4 Deemed Collections; Purchase Limit.
(a) If on any day:
(i) the Outstanding Balance of any Receivable is reduced or cancelled as a result of
any credit issued for returned or repossessed goods, any shortages, any pricing adjustment,
any volume rebate or any other allowance, adjustment or deduction by Originator or any
Affiliate thereof, or as a result of any governmental or regulatory action, or
(ii) the Outstanding Balance of any Receivable is reduced or canceled as a result of a
setoff or disputed item in respect of any claim by the Obligor thereof (whether such claim
arises out of the same or a related or an unrelated transaction), or
(iii) the Outstanding Balance of any Receivable is reduced on account of the obligation
of Originator or any Affiliate thereof to pay to the related Obligor any rebate or refund,
or
(iv) the Outstanding Balance of any Receivable is less than the amount included in
calculating the Net Pool Balance for purposes of any Settlement Report (for any reason other
than receipt of Collections or such Receivable becoming a Defaulted Receivable), or
(v) any of the representations or warranties of Seller with respect to any Receivable
set forth in Article V were not true when made,
then, on such day, Seller shall be deemed to have received a Collection of such Receivable (A) in
the case of clauses (i) through (iv) above, in the amount of such reduction or
cancellation or the difference between the actual Outstanding Balance and the amount included in
calculating such Net Pool Balance, as applicable; and (B) in the case of clause (v) above, in the
amount of the Outstanding Balance of such Receivable and, not later than one (1) Business Day
thereafter shall pay to the Collection Account the amount of any such Collection deemed to have
been received in the same manner as actual cash collections are distributed under the terms of this
Agreement.
(b) Seller shall ensure that the Aggregate Invested Amount at no time exceeds the Purchase
Limit. If at any time the Aggregate Invested Amount exceeds the Purchase Limit, Seller shall pay
to each Purchaser Agent for the benefit of the related Purchasers immediately an amount to be
applied to reduce the Aggregate Invested Amount (ratably, according to each Purchaser’s aggregate
Invested Amount), such that after giving effect to such payment the Aggregate Invested Amount is
less than or equal to the Purchase Limit.
(c) Seller shall also ensure that the aggregate of the Receivable Interests shall at no time
exceed 100%. If the aggregate of the Receivable Interests exceeds 100%, Seller shall pay to each
Purchaser Agent for the benefit of the related Purchasers on or before the next Business Day an
amount to be applied to reduce the Aggregate Invested Amount (ratably,
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according to each Purchaser’s aggregate Invested Amount), such that after giving effect to
such payment the aggregate of the Receivable Interests equals or is less than 100%.
Section 1.5
Payment Requirements and Computations. All amounts to be paid or
deposited by any Seller Party pursuant to any provision of this Agreement shall be paid or
deposited in accordance with the terms hereof no later than 2:00 p.m. (
New York time) on the day
when due in immediately available funds, and if not received before 2:00 p.m. (
New York time) shall
be deemed to be received on the next succeeding Business Day. If such amounts are payable to or
for the account of any Purchaser, such amounts shall be paid to the account from time to time
specified by the related Purchaser Agent to the Seller and the Servicer. All computations of CP
Costs, Yield,
per annum fees calculated as part of any CP Costs,
per annum fees hereunder and
per
annum fees under the Fee Letters shall be made on the basis of a year of 360 days for the actual
number of days elapsed. If any amount hereunder shall be payable on a day which is not a Business
Day, such amount shall be payable on the next succeeding Business Day. Notwithstanding anything
herein or in any Fee Letter to the contrary, “Unused Fees” shall not accrue with respect to any
Defaulting Purchaser on any day such Purchaser is a Defaulting Purchaser pursuant to
clause
(i) of the definition thereof (without prejudice to the rights of any Purchasers other than
such Defaulting Purchaser in respect of such “Unused Fees”); for the avoidance of doubt, (a)
“Unused Fees” shall accrue with respect to any Defaulting Purchaser that is a Defaulting Purchaser
solely pursuant to
clause (ii) of the definition thereof, and (b) any “Unused Fees” that
have accrued under any Fee Letter with respect to a Defaulting Purchaser prior to the date such
Purchaser became a Defaulting Purchaser pursuant to
clause (i) of the definition thereof
shall be payable as and when required in accordance with the terms thereof.
Section 1.6 [Reserved].
Section 1.7 Sharing of Payments, etc. If any Uncommitted Purchaser or any Related
Committed Purchaser (for purpose of this Section 1.7 only, a “Recipient”) shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of setoff, or otherwise)
on account of any interest in the Receivable Interest owned by it in excess of its ratable share
thereof, such Recipient shall forthwith purchase from the Uncommitted Purchasers and/or the Related
Committed Purchasers entitled to a share of such amount participations in the percentage interests
owned by such Persons as shall be necessary to cause such Recipient to share the excess payment
ratably with each such other Person entitled thereto; provided, however, that if all or any portion
of such excess payment is thereafter recovered from such Recipient, such purchase from each such
other Person shall be rescinded and each such other Person shall repay to the Recipient the
purchase price paid by such Recipient for such participation to the extent of such recovery,
together with an amount equal to such other Person’s ratable share (according to the proportion of
(a) the amount of such other Person’s required payment to (b) the total amount so recovered from
the Recipient) of any interest or other amount paid or payable by the Recipient in respect of the
total amount so recovered.
ARTICLE II.
PAYMENTS AND COLLECTIONS
Section 2.1 Payments of Recourse Obligations. Seller hereby promises to pay the
following (collectively, the “Recourse Obligations”):
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(a) all amounts due and owing under Section 1.3 or 1.4 on the dates
specified therein;
(b) the fees set forth in the Fee Letters on the dates specified therein;
(c) all accrued and unpaid Yield on the Receivable Interests accruing Yield at the
Yield Rate on each Settlement Date applicable thereto;
(d) [Reserved];
(e) all accrued and unpaid CP Costs on the Receivable Interests funded with Commercial
Paper on each Settlement Date; and
(f) all Broken Funding Costs and Indemnified Amounts upon demand.
Section 2.2 Collections Prior to the Final Facility Termination Date; Repayment of Certain
Demand Advances.
(a) Prior to the Final Facility Termination Date, any Deemed Collections received by the
Servicer and the Purchasers’ Portion of any Collections received by the Servicer shall be set aside
and held in trust by the Servicer for the payment of any accrued and unpaid Aggregate Unpaids or
for a Reinvestment as provided in this Section 2.2. If at any time any Collections are
received by the Servicer prior to the Final Facility Termination Date, Seller hereby requests and
each Purchaser (other than any Exiting Purchasers) hereby agrees to make, simultaneously with such
receipt, a reinvestment (each, a “Reinvestment”) with the Purchasers’ Portion of the balance of
each and every Collection received by the Servicer such that after giving effect to such
Reinvestment, the Invested Amount of the Receivable Interests of each Purchaser (other than an
Exiting Purchaser) immediately after such receipt and corresponding Reinvestment shall be equal to
the amount of such Invested Amounts immediately prior to such receipt.
(b) On each Settlement Date prior to the Final Facility Termination Date, the Servicer shall
remit to each Purchaser Agent for the benefit of its Purchaser Group (or, if applicable, to the
Administrator for its own benefit) the amounts set aside during the preceding Calculation Period
that have not been subject to a Reinvestment and (after deduction of its Servicing Fee) apply such
amounts (if not previously paid in accordance with Section 2.1) to the Aggregate Unpaids in
the order specified:
first, ratably to the payment of all accrued and unpaid CP Costs, Yield and Broken
Funding Costs (if any) that are then due and owing,
second, ratably to the payment of all accrued and unpaid fees under the Fee Letters (if
any) that are then due and owing,
third, to the ratable reduction of the aggregate Invested Amount of each Exiting
Purchaser,
fourth, if required under Section 1.1( b)(v)(B), 1.3 or 1.4,
first, to the reduction of the aggregate Accordion Invested Amount (ratably according to
each Purchaser’s
8
Accordion Invested Amount until such amount is reduced to zero) and second, to the
ratable reduction of the Aggregate Invested Amount (in each case, after giving effect to the
amounts, if any, distributed pursuant to clause third above),
fifth, for the ratable payment of all other unpaid Recourse Obligations, if any, that
are then due and owing, and
sixth, the balance, if any, to Seller or otherwise in accordance with Seller’s
instructions.
(c) If the Collections are insufficient to pay the Servicing Fee and the amounts specified in
clauses first through fifth above on any Settlement Date, Seller shall make demand
upon ABDC for repayment of any outstanding Demand Advances in an aggregate amount equal to the
lesser of (i) the amount of such shortfall in Collections, and (ii) the aggregate outstanding
principal balance of the Demand Advances, together with all accrued and unpaid interest thereon,
and ABDC hereby agrees to pay such amount to the Collection Account for distribution on such
Settlement Date in accordance with the priorities above.
Section 2.3 Repayment of Demand Advances on the Final Facility Termination Date;
Collections
(a) On the Final Facility Termination Date, ABDC hereby agrees to repay the aggregate
outstanding principal balance of all Demand Advances, together with all accrued and unpaid interest
thereon, to the Collection Account, without demand or notice of any kind, all of which are hereby
expressly waived by ABDC.
(b) On the Final Facility Termination Date and on each day thereafter, the Servicer shall set
aside and hold in trust, for the Secured Parties, all Collections received on each such day. On
and after the Final Facility Termination Date, the Servicer shall, on each Settlement Date and on
each other Business Day specified by the Administrator (after deduction of any accrued and unpaid
Servicing Fee as of such date): (i) remit to each Purchaser Agent for the benefit of its Purchaser
Group (or, if applicable, to the Administrator for its own benefit) the amounts set aside pursuant
to the preceding two sentences, and (ii) apply such amounts to reduce the Aggregate Unpaids as
follows:
first, to the reimbursement of the Administrator’s and each Purchaser Agent’s costs of
collection and enforcement of this Agreement,
second, ratably to the payment of all accrued and unpaid CP Costs, Yield and Broken
Funding Costs,
third, ratably to the payment of all accrued and unpaid fees under the Fee Letters,
fourth, to the ratable reduction of Aggregate Invested Amount,
fifth, for the ratable payment of all other Aggregate Unpaids, and
sixth, after the Final Payout Date, to Seller.
9
Section 2.4 Payment Rescission. No payment of any of the Aggregate Unpaids shall be
considered paid or applied hereunder to the extent that, at any time, all or any portion of such
payment or application is rescinded by application of law or judicial authority, or must otherwise
be returned or refunded for any reason. Seller shall remain obligated for the amount of any
payment or application so rescinded, returned or refunded, and shall promptly pay to the applicable
Purchaser Agent (for application to the Person or Persons who suffered such rescission, return or
refund) the full amount thereof, plus interest thereon at the Default Rate from the date of any
such rescission, return or refunding.
Section 2.5 Clean Up Call. In addition to Seller’s rights pursuant to Section
1.3, Seller shall have the right (after providing the Administrator and each Purchaser Agent
with at least two (2) Business Days prior notice), at any time following the reduction of the
Aggregate Invested Amount to a level that is less than 10.0% of the original Purchase Limit, to
repurchase all, but not less than all, of the then outstanding Receivable Interests plus any Broken
Funding Costs. The purchase price in respect thereof shall be an amount equal to the Aggregate
Unpaids through the date of such repurchase, payable in immediately available funds in accordance
with Section 2.3(b). Such repurchase shall be without representation, warranty or recourse
of any kind by, on the part of, or against any Purchaser, any Purchaser Agent or the Administrator.
ARTICLE III.
COMMERCIAL PAPER FUNDING
Section 3.1 CP Costs. Seller shall pay CP Costs with respect to the Invested Amount
of all Receivable Interests funded through the issuance of Commercial Paper.
Section 3.2 Calculation of CP Costs. On each Business Day, each Purchaser (or the
applicable Purchaser Agent on its behalf) shall calculate the aggregate amount of CP Costs
applicable to its Receivable Interests accrued through the end of the preceding Business Day and
shall notify Seller of such aggregate amount; provided, however, if any Conduit Purchaser is unable
or unwilling to make such daily calculation, such Conduit Purchaser (or the applicable Purchaser
Agent on its behalf) shall only be required to notify the Seller on the first Business Day of each
calendar week with respect to the applicable CP Costs for each Business day in the preceding week.
Section 3.3 CP Costs Payments. On each Settlement Date, Seller shall pay to the
applicable Purchaser Agent (for the benefit of the related Conduit Purchaser) an aggregate amount
equal to all accrued and unpaid CP Costs in respect of the portion of the Invested Amounts of all
Receivable Interests funded by such Conduit Purchaser with Commercial Paper for the Calculation
Period then most recently ended in accordance with Article II.
Section 3.4 Default Rate. From and after the occurrence of an Amortization Event, all
Receivable Interests shall accrue Yield at the Default Rate.
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ARTICLE IV.
BANK RATE FUNDINGS
Section 4.1 Bank Rate Fundings. Prior to the occurrence of an Amortization Event, the
portion of outstanding Invested Amount of each Receivable Interest funded with Bank Rate Fundings
shall accrue Yield for each day during its Interest Period at the applicable Yield Rate in
accordance with the terms and conditions hereof. If any undivided interest in a Receivable
Interest initially funded with Commercial Paper is sold (or otherwise participated) to the
Liquidity Providers pursuant to a Liquidity Agreement, such undivided interest in such Receivable
Interest shall be deemed to have an Interest Period commencing on the date of such sale.
Section 4.2 Yield Payments. On the Settlement Date for each Receivable Interest that
is funded with a Bank Rate Funding, Seller shall pay to each applicable Purchaser Agent (for the
benefit of its Purchaser Group) an aggregate amount equal to the accrued and unpaid Yield thereon
for the entire Interest Period of each related Bank Rate Funding in accordance with Article
II.
Section 4.3 [Reserved].
Section 4.4 Suspension of the LIBO Rate. If any Purchaser or Liquidity Provider
notifies the related Purchaser Agent that it has determined that funding its ratable share of the
Bank Rate Fundings at or by reference to a LIBO Rate would violate any applicable law, rule,
regulation, or directive of any governmental or regulatory authority, whether or not having the
force of law, or that (i) deposits of a type and maturity appropriate to match fund its Bank Rate
Funding at or by reference to such LIBO Rate are not available or (ii) such LIBO Rate does not
accurately reflect the cost of acquiring or maintaining a Bank Rate Funding at such LIBO Rate, then
such Purchaser Agent shall give notice thereof to the Seller by telephone, facsimile or email as
promptly as practicable thereafter and, until such Purchaser Agent notifies the Seller that the
circumstances giving rise to such notice no longer exist, (a) no portion of the Invested Amount
shall be funded at the LIBO Rate or at the Alternate Base Rate determined by reference to the LIBO
Rate and (b) the Yield for any outstanding portions of the Invested Amount then funded at the LIBO
Rate or at the Alternate Base Rate determined by reference to the LIBO Rate shall, on the last day
of the then current Yield Period, be converted to the Alternate Base Rate determined by reference
to clause (a)(ii) of the definition of the Alternate Base Rate.
Section 4.5 Default Rate. From and after the occurrence of an Amortization Event, all
Bank Rate Fundings shall accrue Yield at the Default Rate.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Section 5.1 Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Administrator, each Purchaser Agent and each Purchaser, as to
itself, as of the date hereof and as of the date of each Incremental Purchase and the date of each
Reinvestment that:
11
(a) Organization and Qualification. The Seller’s only jurisdiction of organization is
correctly set forth in the preamble of this Agreement. The Seller is a corporation duly organized,
validly existing and in good standing under the Laws of its jurisdiction of incorporation. The
Seller is duly qualified to do business as a foreign corporation in good standing in each
jurisdiction in which the ownership of its properties or the nature of its activities (including
transactions giving rise to Receivables), or both, requires it to be so qualified or, if not so
qualified, the failure to so qualify would not have a material adverse effect on its financial
condition or results of operations.
(b) Authority. The Seller has the legal power and authority to execute and deliver
the Transaction Documents, to make the sales provided for herein and to perform its obligations
under this Agreement and the other Transaction Documents.
(c) Execution and Binding Effect. Each of the Transaction Documents to which the
Seller is a party has been duly and validly executed and delivered by the Seller and (assuming the
due and valid execution and delivery thereof by the other parties thereto), constitutes a legal,
valid and binding obligation of the Seller enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization or other similar
Laws of general application relating to or affecting the enforcement of creditors’ rights or by
general principles of equity, and will vest absolutely and unconditionally in the Administrator
(for the benefit of the Secured Parties) a valid undivided security interest in the Receivables
purported to be assigned thereby, subject to no Liens whatsoever. Upon the filing of the necessary
financing statements under the UCC as in effect in the jurisdiction whose Law governs the
perfection of the Administrator’s (for the benefit of the Secured Parties) ownership and security
interests in the Receivables, such interests will be perfected under Article 9 of such UCC, prior
to and enforceable against all creditors of and purchasers from the Seller and all other Persons
whatsoever (other than the Administrator, for the benefit of the Secured Parties, and their
successors and assigns).
(d) Authorizations and Filings. No authorization, consent, approval, license,
exemption or other action by, and no registration, qualification, designation, declaration or
filing with, any Official Body is or will be necessary or, in the opinion of the Seller, advisable
in connection with the execution and delivery by the Seller of each of the Transaction Documents to
which the Seller is a party, the consummation by the Seller of the transactions herein or therein
contemplated or the performance by the Seller of or the compliance by the Seller with the terms and
conditions hereof or thereof, to ensure the legality, validity or enforceability hereof or thereof,
or to ensure that the Administrator (for the benefit of the Secured Parties) will have an ownership
and security interest in and to the Receivables which is perfected and prior to all other Liens
(including competing ownership or security interests), other than the filing of financing
statements under the UCC in the jurisdiction of the Seller’s Location and of the Originator’s
Location.
(e) Location of Chief Executive Office, etc. As of the date hereof: (i) the Seller’s
chief executive office is located at the address for notices set forth on the signature page
hereof; (ii) the offices where the Seller keeps all of its Records are listed on Exhibit
III hereto; and (iii) since its incorporation, the Seller has operated only under the names
identified in Exhibit III hereto, and has not changed its name, merged or consolidated with
any other
12
corporation or been the subject of any proceeding under Xxxxx 00, Xxxxxx Xxxxxx Code
(Bankruptcy), except as disclosed in Exhibit III hereto.
(f) Perfection. This Agreement is effective to create a valid security interest in
favor of the Administrator for the benefit of the Secured Parties in the Purchased Assets to secure
payment of the Aggregate Unpaids, free and clear of any Lien except as created by the Transaction
Documents. There have been duly filed all financing statements or other similar instruments or
documents necessary under the UCC (or any comparable law) of all appropriate jurisdictions to
perfect the Administrator’s (on behalf of the Secured Parties) security interest in the Purchased
Assets. Such Seller’s only jurisdiction of organization is Delaware.
(g) Absence of Conflicts. Neither the execution and delivery by the Seller of each of
the Transaction Documents to which the Seller is a party, nor the consummation by the Seller of the
transactions herein or therein contemplated, nor the performance by the Seller of or the compliance
by the Seller with the terms and conditions hereof or thereof, will (i) violate any Law or (ii)
conflict with or result in a breach of or a default under (A) the certificate of incorporation or
by-laws of the Seller or (B) any agreement or instrument, including, without limitation, any and
all indentures, debentures, loans or other agreements to which the Seller is a party or by which it
or any of its properties (now owned or hereafter acquired) may be subject or bound, which would
have a material adverse effect on the financial position or results of operations of the Seller or
result in rendering any indebtedness evidenced thereby due and payable prior to its maturity or
result in the creation or imposition of any Lien pursuant to the terms of any such instrument or
agreement upon any property (now owned or hereafter acquired) of the Seller. The Seller has not
entered into any agreement with any Obligor prohibiting, restricting or conditioning the assignment
of any portion of the Receivables.
(h) No Amortization Event. No event has occurred and is continuing and no condition
exists which constitutes an Amortization Event.
(i) Accurate and Complete Disclosure. No information furnished by the Seller to the
Administrator, any Purchaser Agent or any Purchaser pursuant to or in connection with this
Agreement or any transaction contemplated hereby is false or misleading in any material respect as
of the date as of which such information was furnished (including by omission of material
information necessary to make such information not misleading).
(j) No Proceedings. There are no proceedings or investigations pending, or to the
knowledge of the Seller, threatened, before any Official Body (A) asserting the invalidity of the
Transaction Documents, (B) seeking to prevent the consummation of any of the transactions
contemplated by the Transaction Documents, or (C) seeking any determination or ruling that might
materially and adversely affect (i) the performance by either the Seller or the Servicer of its
obligations under the Transaction Documents or (ii) the validity or enforceability of the
Transaction Documents, the Contracts or any material amount of the Receivables.
(k) Bulk Sales Act. No transaction contemplated hereby requires compliance with any
bulk sales act or similar law.
(l) Litigation. No injunction, decree or other decision has been issued or made by
any Official Body that prevents, and to the knowledge of the Seller, no threat by any
13
Person has been made to attempt to obtain any such decision that would have a material adverse
effect on, the conduct by the Seller of a significant portion of the Seller’s business operations
or any portion of its business operations affecting the Receivables, and no litigation,
investigation or proceeding exists asserting the invalidity of the Transaction Documents, seeking
to prevent the consummation of any of the transactions contemplated by the Transaction Documents,
or seeking any determination or ruling that might materially and adversely affect (A) the
performance by either the Seller or the Servicer of its obligations under the Transaction Documents
or (B) the validity or enforceability of the Transaction Documents, the Contracts or any material
amount of the Receivables.
(m) Margin Regulations. The use of all funds acquired by the Seller under this
Agreement will not conflict with or contravene any of Regulations T, U and X of the Board of
Governors of the Federal Reserve System, as the same may from time to time be amended, supplemented
or otherwise modified.
(n) Taxes. The Seller has timely filed all United States Federal income tax returns
and all other material tax returns which are required to be filed by it and has paid all taxes due
pursuant to such returns and paid or contested any assessment received by the Seller related to
such returns.
(o) Books and Records. The Seller has indicated on its books and records (including
any computer files), that the Receivable Interest in the Receivables sold by the Seller hereunder
is the property of Purchasers. The Seller maintains at, or shall cause the Servicer to maintain
at, one or more of their respective offices listed in Exhibit III hereto the complete
Records for the Receivables.
(p) Creditor Approval. The Seller has obtained from its creditors (i) all approvals
necessary to sell and assign the Receivables and (ii) releases of any security interests in the
Receivables.
(q) Financial Condition. The Seller is not insolvent or the subject of any Event of
Bankruptcy and the sale of Receivables on such day will not be made in contemplation of the
occurrence thereof.
(r) Financial Information. If and when produced in accordance with the terms of this
Agreement, the consolidated balance sheet of the Seller as at the most recent Fiscal Year end and
the related statements of income of the Seller for the Fiscal Year then ended, fairly present the
consolidated financial position of the Seller as at such date and the consolidated results of the
operations, all in accordance with GAAP.
(s) Investment Company. The Seller is not an “investment company” or a company
“controlled by an investment company” within the meaning of the Investment Company Act of 1940, as
amended. The Seller is not a “holding company” or a “subsidiary holding company” of a “holding
company” within the meaning of the Public Utility Holding Company Act of 1935, as amended, or any
successor statute.
(t) Payments to Applicable Originator. With respect to each Receivable transferred to
Seller under the Receivables Sale Agreement, Seller has given reasonably equivalent value to the
applicable Originator in consideration therefor and such transfer was not
14
made for or on account of an antecedent debt. No transfer by any Originator of any Receivable
under the Receivables Sale Agreement is or may be voidable under any section of the Bankruptcy
Reform Act of 1978 (11 U.S.C. §§ 101 et seq.), as amended.
Section 5.2 Representations and Warranties of the Seller With Respect to Each Sale of
Receivables. By selling undivided ownership interests in Receivables to the Purchasers, either
by Incremental Purchase or Reinvestment, the Seller represents and warrants to the Administrator,
each Purchaser Agent and each Purchaser as of the date of such sale of an Incremental Purchase or
Reinvestment (in addition to its other representations and warranties contained herein or made
pursuant hereto) that:
(a) Purchase Notice. If such sale relates to an Incremental Purchase, all information
set forth on the related Purchase Notice is true and correct as of the date of such Incremental
Purchase.
(b) Assignment. This Agreement vests in the Administrator, for the benefit of the
Secured Parties, all the right, title and interest of the Seller in and to the Receivable Interest
in the Receivables, and the Related Security and Collections with respect thereto, and constitutes
a valid sale of or grant of a security interest in the Receivable Interest, enforceable against all
creditors of and purchasers from the Seller.
(c) No Liens. Each Receivable, together with the related Contract and all purchase
orders and other agreements related to such Receivable, is owned by the Seller free and clear of
any Lien, except as provided herein, and is not subject to any Dispute, except as provided herein.
When each of the Purchasers makes a purchase of a Receivable Interest in such Receivable, it shall
have acquired and shall continue to have maintained an undivided percentage ownership interest to
the extent of its percentage of the Receivable Interest in such Receivable and in the Related
Security and the Collections with respect thereto free and clear of any Lien, except as provided
herein. The Seller has not and will not prior to the time of the sale of any such interest to the
Purchasers have sold, pledged, assigned, transferred or subjected, and will not thereafter sell,
pledge, assign, transfer or subject, to a Lien any of the Receivables, the Related Security or the
Collections, other than the assignment of Receivable Interests therein to the Administrator, for
the benefit of the Secured Parties, in accordance with the terms of this Agreement.
(d) Filings. On or prior to each Purchase and each recomputation of the Receivable
Interest, all financing statements and other documents required to be recorded or filed in order to
perfect and protect the Receivable Interest against all creditors of and purchasers from the Seller
and all other Persons whatsoever will have been duly filed in each filing office necessary for such
purpose and all filing fees and taxes, if any, payable in connection with such filings shall have
been paid in full.
(e) Credit and Collection Policy. The Originator’s Credit and Collection Policy of
the applicable Originator has been complied with in all material respects in regard to each
Receivable and related Contract.
(f) Collection Banks, Collection Accounts and Lock-Boxes. The names and addresses of
all Collection Banks, together with the numbers of all Collection Accounts and
15
Lock-Boxes at such Collection Banks and the addresses of all related Collection Accounts and
Lock-Boxes, are specified in the Account Disclosure Letter (or such other Collection Banks,
Collection Accounts and Lock Boxes that have been changed or established in accordance with
Section 7.2(g)).
(g) Nature of Receivables. Each Receivable is, or will be, an eligible asset within
the meaning of Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended from time
to time.
(h) Bona Fide Receivables. Each Receivable is an obligation of an Obligor arising out
of a past, current or future sale or performance by the applicable Originator, in accordance with
the terms of the Contract giving rise to such Receivable. The Seller has no knowledge of any fact
that should have led it to expect at the time of the initial creation of an interest in any
Receivable hereunder that such Receivable would not be paid in full when due except with respect to
any Dilution. Each Receivable classified as an “Eligible Receivable” by the Seller in any document
or report delivered hereunder satisfies the requirements of eligibility contained in the definition
of Eligible Receivable.
Section 5.3 Representations and Warranties of Servicer. The Servicer represents and
warrants to the Administrator, each Purchaser Agent and each Purchaser on and as of the date hereof
and as of the date of each Incremental Purchase and each Reinvestment after such date:
(a) Organization and Qualification. The Servicer’s only jurisdiction of organization
is in Delaware. The Servicer is a corporation duly organized, validly existing and in good
standing under the Laws of its jurisdiction of incorporation. The Servicer is duly qualified to do
business as a foreign corporation in good standing in each jurisdiction in which the ownership of
its properties or the nature of its activities, or both, requires it to be so qualified or, if not
so qualified, the failure to so qualify would not have a material adverse effect on its financial
condition or results of operations.
(b) Authority. The Servicer has the legal power and authority to execute and deliver
this Agreement and to perform its obligations hereunder and thereunder.
(c) Execution and Binding Effect. This Agreement has been duly and validly executed
and delivered by the Servicer and (assuming the due and valid execution and delivery thereof by the
other parties thereto), constitutes a legal, valid and binding obligation of the Servicer
enforceable in accordance with its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization or other similar Laws of general application relating to or
affecting the enforcement of creditors’ rights or by general principles of equity, and will vest
absolutely and unconditionally in the Administrator (for the benefit of the Secured Parties) an
ownership or security interest in the Receivables purported to be assigned thereby, subject to no
Liens whatsoever. Upon the filing of the necessary financing statements under the UCC as in effect
in the jurisdiction whose Law governs the perfection of the Administrator (for the benefit of the
Secured Parties) ownership or security interests in the Receivables, such interests will be
perfected under Article 9 of such UCC, prior to and enforceable against all creditors of and
purchasers from the Seller and all other Persons whatsoever (other than for the Administrator, for
benefit of the Secured Parties, and their successors and assigns).
16
(d) Authorizations and Filings. No authorization, consent, approval, license,
exemption or other action by, and no registration, qualification, designation, declaration or
filing with, any Official Body is or will be necessary or, in the opinion of the Servicer,
advisable in connection with the execution and delivery by the Servicer of this Agreement, the
consummation by the Servicer of the transactions herein or therein contemplated or the performance
by the Servicer of or the compliance by the Servicer with the terms and conditions hereof or
thereof, to ensure the legality, validity or enforceability hereof, or to ensure that the
Administrator (for the benefit of the Secured Parties) will have an ownership and security interest
in and to the Receivables which is perfected and prior to all other Liens (including competing
ownership or security interests), other than the filing of financing statements under the UCC in
the jurisdictions of each Originator’s Location and of the Seller’s Location.
(e) Absence of Conflicts. Neither the execution and delivery by the Servicer of this
Agreement, nor the consummation by the Servicer of the transactions herein contemplated, nor the
performance by the Servicer of or the compliance by the Servicer with the terms and conditions
hereof, will (i) violate any Law or (ii) conflict with or result in a breach of or a default under
(A) the certificate of incorporation or by-laws of the Servicer or (B) any agreement or instrument,
including, without limitation, any and all indentures, debentures, loans or other agreements to
which the Servicer is a party or by which it or any of its properties (now owned or hereafter
acquired) may be subject or bound, which would have a material adverse effect on the financial
position or results of operations of the Servicer or result in rendering any debt in excess of
$10,000,000 evidenced thereby due and payable prior to its maturity or result in the creation or
imposition of any Lien pursuant to the terms of any such instrument or agreement upon any property
(now owned or hereafter acquired) of the Servicer. The Servicer has not entered into any agreement
with any Obligor prohibiting, restricting or conditioning the assignment of any portion of the
Receivables.
(f) No Amortization Event. No event has occurred and is continuing and no condition
exists which constitutes a Amortization Event.
(g) Accurate and Complete Disclosure. No information furnished by a Responsible
Officer of the Servicer to the Administrator, any Purchaser Agent or any Purchaser pursuant to or
in connection with this Agreement or any transaction contemplated hereby is false or misleading in
any material respect as of the date as of which such information was furnished (including by
omission of material information necessary to make such information not misleading).
(h) No Proceedings. There are no proceedings or investigations pending, or to the
knowledge of the Servicer, threatened, before any Official Body (A) asserting the invalidity of the
Transaction Documents, (B) seeking to prevent the consummation of any of the transactions
contemplated by the Transaction Documents, or (C) seeking any determination or ruling that might
materially and adversely affect (i) the performance by either the Seller or the Servicer of its
obligations under this Agreement or (ii) the validity or enforceability of the Transaction
Documents, the Contracts or any material amount of the Receivables.
(i) No Change in Ability to Perform. Since the date on which the Servicer accepted
its duties hereunder, there has been no material adverse change in the ability of the Servicer to
perform its obligations hereunder.
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(j) Credit and Collection Policy. The Credit and Collection Policy has been complied
with in all material respects in regard to each Receivable and related Contract.
(k) Financial Condition. The consolidated balance sheet of the AmerisourceBergen and
its Consolidated Subsidiaries (which shall include the Servicer) as at the most recent Fiscal Year
end and the related statements of income and cash flows of AmerisourceBergen and its Consolidated
Subsidiaries for the fiscal year then ended, certified by Ernst & Young LLP, independent
accountants, or another nationally recognized firm of independent accountants, are available as a
matter of public record. The Servicer will cause AmerisourceBergen to provide on the date of such
public filing or the next succeeding Business Day a certificate to the Administrator (which shall
promptly forward a copy to each Purchaser Agent), that such balance sheet and statements of income
and cash flows fairly present the consolidated financial position of AmerisourceBergen and its
Consolidated Subsidiaries as at such date and the consolidated results of the operations of and
consolidated cash flows of AmerisourceBergen and its Consolidated Subsidiaries for the period ended
on such date, all in accordance with GAAP. The unaudited consolidated balance sheet of
AmerisourceBergen and its Consolidated Subsidiaries as at most recent fiscal quarter end and the
related unaudited statements of income and cash flows of AmerisourceBergen and its Consolidated
Subsidiaries for the periods then ended are available as a matter of public record. The Servicer
will cause AmerisourceBergen to provide on the date of such public filing or the next succeeding
Business Day a certificate to the Administrator (which shall promptly forward a copy to each
Purchaser Agent), that such balance sheet and statements of income and cash flows fairly present
the consolidated financial position of AmerisourceBergen and its Consolidated Subsidiaries as at
such date and the consolidated results of the operations of and consolidated cash flows of
AmerisourceBergen and its Consolidated Subsidiaries for the periods ended on such date, all in
accordance with GAAP.
(l) Litigation. No injunction, decree or other decision has been issued or made by
any Official Body that prevents, and to the knowledge of the Servicer, no threat by any Person has
been made to attempt to obtain any such decision that would have a material adverse effect on, the
conduct by the Servicer of a significant portion of its business operations or any portion of its
business operations affecting the Receivables, and no litigation, investigation or proceeding
asserting the invalidity of this Agreement, seeking to prevent the consummation of the transactions
contemplated by this Agreement, or seeking any determination or ruling that might materially and
adversely affect (A) the performance of the Servicer of its obligations under this Agreement, or
(B) the validity or enforceability of this Agreement, the Contracts or any material amount of the
Receivables.
(m) Insurance. The Servicer currently maintains insurance with respect to its
properties and businesses and causes its Subsidiaries to maintain insurance with respect to their
properties and business against loss or damage of the kinds customarily insured against by
corporations engaged in the same or similar business and similarly situated, of such types and in
such amounts as are customarily carried under similar circumstances by such other corporations
including, without limitation, workers’ compensation insurance.
(n) ERISA. No ERISA Event has occurred or is reasonably expected to occur that, when
taken together with all other such ERISA Events for which liability is reasonably expected to
occur, could reasonably be expected to result in a material adverse effect on the
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business, financial condition, operations or properties of Performance Guarantor and ERISA
Affiliates taken as a whole. Any excess of the accumulated benefit obligations under one or more
Pension Plans (based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) over the fair market value of the assets of such Pension Plan or Pension Plans is
in an amount that could not reasonably be expected, individually or in the aggregate, to result in
a material adverse effect on the business, financial condition, operations or properties of
Performance Guarantor and ERISA Affiliates taken as a whole.
ARTICLE VI.
CONDITIONS OF PURCHASES
Section 6.1 Conditions Precedent to Initial Incremental Purchase; Closing Date. The
conditions precedent to the initial Incremental Purchase of a Receivable Interest under the
Original Agreement were satisfied on the date on which all of the conditions precedent set forth in
Section 6.1 of the Original Agreement were satisfied or waived by the Administrator and
each Purchaser Agent. This Agreement shall become effective on the date hereof (the “Closing
Date”), subject to the conditions precedent that (a) the Administrator and each Purchaser Agent
shall have received on or before the date of such Purchase those documents listed on Schedule
A and (b) the Administrator and each Purchaser Agent shall have received all fees and expenses
required to be paid on such date pursuant to the terms of this Agreement and the Fee Letter.
Section 6.2 Conditions Precedent to All Purchases and Reinvestments. Each Incremental
Purchase and each Reinvestment shall be subject to the further conditions precedent that (a) in the
case of each such Purchase: (i) the Servicer shall have delivered to the Administrator and each
Purchaser Agent on or prior to the date of such Purchase, in form and substance satisfactory to the
Administrator and each Purchaser Agent, all Settlement Reports as and when due under Section
8.5 and (ii) upon the Administrator’s or any Purchaser Agent’s request, the Servicer shall have
delivered to the Administrator and each Purchaser Agent at least one (1) Business Day prior to such
Purchase an interim settlement report in substantially the form of Exhibit XI; (b) the
Administrator and each Purchaser Agent shall have received such other documents as it may
reasonably request and (c) on each Purchase Date, the following statements shall be true (and
acceptance of the proceeds of such Incremental Purchase or Reinvestment shall be deemed a
representation and warranty by Seller that such statements are then true):
(i) the representations and warranties set forth in Article V are true and
correct on and as of the date of such Incremental Purchase or Reinvestment as though made on
and as of such Purchase Date;
(ii) no event has occurred and is continuing, or would result from such Incremental
Purchase or Reinvestment, that will constitute an Amortization Event, and no event has
occurred and is continuing, or would result from such Incremental Purchase or Reinvestment,
that would constitute an Unmatured Amortization Event; and
(iii) after giving effect to such Incremental Purchase or Reinvestment, the Aggregate
Invested Amount will not exceed the Purchase Limit and the aggregate Receivable Interests
will not exceed 100%.
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It is expressly understood that each Reinvestment shall, unless otherwise directed by the
Administrator, occur automatically on each day that the Servicer shall receive any Collections
without the requirement that any further action be taken on the part of any Person and
notwithstanding the failure of Seller to satisfy any of the foregoing conditions precedent in
respect of such Reinvestment. The failure of Seller to satisfy any of the foregoing conditions
precedent in respect of any Reinvestment shall give rise to a right of the Administrator and each
Purchaser Agent, which right may be exercised at any time on demand of the Administrator or any
Purchaser Agent, to rescind the related purchase and direct Seller to pay to the Purchaser Agents,
for the benefit of Purchasers (ratably, according to each Purchaser’s aggregate Invested Amount),
an amount equal to the Collections that shall have been applied to the affected Reinvestment (but
not in excess of the Aggregate Unpaids).
ARTICLE VII.
COVENANTS
Section 7.1 Affirmative Covenants of the Seller. In addition to its other covenants
contained herein or made pursuant hereto, the Seller covenants with the Administrator, each
Purchaser Agent and each Purchaser as follows:
(a) Notice of Amortization Event. Promptly upon becoming aware of, but in any event
no later than the next Business Day, any Amortization Event or Unmatured Amortization Event, the
Seller shall give the Administrator (which shall promptly forward a copy to each Purchaser Agent)
notice thereof, together with a written statement of a Responsible Officer setting forth the
details thereof and any action with respect thereto taken or contemplated to be taken by the
Seller.
(b) Notice of Material Adverse Change. Promptly upon becoming aware thereof, the
Seller shall give the Administrator (which shall promptly forward a copy to each Purchaser Agent)
notice of any material adverse change in the business, operations or financial condition of the
Seller, which reasonably could affect adversely the collectibility of the Receivables.
(c) Preservation of Corporate Existence. The Seller shall preserve and maintain its
corporate existence, rights, franchises and privileges in the jurisdiction of its incorporation,
and qualify and remain qualified in good standing as a foreign corporation in each jurisdiction
where the failure to preserve and maintain such existence, rights, franchises, privileges and
qualification would materially adversely affect (i) the interests of the Administrator, any
Purchaser Agent or any Purchaser hereunder or (ii) the ability of the Seller to perform its
obligations under the Transaction Documents.
(d) Compliance with Laws. The Seller shall comply in all material respects with all
Laws applicable to the Seller, its business and properties, and all Receivables related to the
Receivable Interests.
(e) Enforceability of Obligations. The Seller shall take such actions as are
reasonable and within its power to ensure that, with respect to each Receivable, the obligation of
any related Obligor to pay the unpaid balance of such Receivable in accordance with the terms of
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the related Contract remains legal, valid, binding and enforceable against such Obligor except
as otherwise permitted by Section 8.2(d).
(f) Books and Records. (i) The Seller shall, to the extent practicable, maintain and
implement administrative and operating procedures (including, without limitation, the ability to
recreate Records evidencing the Receivables in the event of the destruction of the originals
thereof), and keep and maintain all documents, books, Records and other information, reasonably
necessary or advisable for the collection of all Receivables (including, without limitation,
Records adequate to permit the identification of all Related Security and Collections and
adjustments to each existing Receivable).
(ii) The Seller will (and will cause each Originator to): (A) on or prior to the date
hereof, xxxx its “Aged Trial Balance” with a legend in substantially the form set forth on
Exhibit XIII hereto and (B) upon the request of the Administrator or any Purchaser
Agent following the occurrence of an Amortization Event: (x) xxxx each Contract with a
legend describing the Administrator’s security interest and (y) deliver to the Administrator
all Contracts (including, without limitation, all multiple originals of any such Contract
constituting an instrument, a certificated security or chattel paper) relating to the
Receivables.
(g) Fulfillment of Obligations. The Seller shall do nothing to impair the rights,
title and interest of the Administrator, any Purchaser Agent or any Purchaser in and to the
Receivable Interests and shall pay when due any taxes, including without limitation any sales tax,
excise tax or other similar tax or charge, payable in connection with the Receivables and their
creation and satisfaction.
(h) Obligor List. The Seller shall at all times maintain (or cause the Servicer to
maintain) a current list (which may be stored on computer systems, magnetic tapes or disks) of all
Obligors under Contracts related to Receivables, including the name, address, telephone number and
account number of each such Obligor. The list shall be updated as provided in Section
8.5(b), and the Seller shall deliver or cause to be delivered a copy of such list to the
Administrator (which shall promptly forward a copy to each Purchaser Agent) as soon as practicable
following the Administrator’s request (but not more frequently than once each calendar quarter
unless an Amortization Event or Unmatured Amortization Event has occurred and is continuing).
(i) Litigation. As soon as possible, and in any event within three (3) Business Days
of the Seller’s knowledge thereof, the Seller shall give the Administrator (which shall promptly
forward a copy to each Purchaser Agent) notice of (i) any litigation, investigation or proceeding
against the Seller which may exist at any time which, in the reasonable judgment of the Seller,
could have a material adverse effect on the financial condition or results of operations of the
Seller, impair the ability of the Seller to perform its obligations under this Agreement, or
materially adversely affect the collectibility of the Receivables, and (ii) any material adverse
development in any such previously disclosed litigation.
(j) Notice of Relocation. The Seller shall give the Administrator (which shall
promptly forward a copy to each Purchaser Agent) 45 days’ prior written notice of any relocation of
its Location. The Seller will at all times maintain its Location within a jurisdiction in the
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United States in which Article 9 of the UCC is in effect as of the date hereof or the date of
any such relocation.
(k) Further Information. The Seller shall furnish or cause to be furnished to the
Administrator and each Purchaser Agent such other information as promptly as practicable, and in
such form and detail, as the Administrator or any Purchaser Agent may reasonably request.
(l) Fees, Taxes and Expenses. The Seller shall pay all filing fees, stamp taxes and
other similar taxes and expenses, including the fees and expenses set forth in Section
10.3, if any, which may be incurred on account of or arise out of this Agreement and the
documents and transactions entered into pursuant to this Agreement.
(m) Compliance with Receivables Sale Agreement. The Seller will enforce all material
obligations and undertakings on the part of each Originator to be observed and performed under the
Receivables Sale Agreement. Seller will take all actions to perfect and enforce its rights and
interests (and the rights and interests of the Administrator (for the benefit of the Secured
Parties), as Seller’s assignee) under the Receivables Sale Agreement as the Administrator or any
Purchaser Agent may from time to time reasonably request, including, without limitation, making
claims to which it may be entitled under any indemnity, reimbursement or similar provision
contained in the Receivables Sale Agreement.
(n) Audits. At any time, upon reasonable notice to the Seller (but not more than
twice per calendar year unless an Amortization Event or Unmatured Amortization Event has occurred),
the Seller shall permit the Administrator, together with each Purchaser Agent that wants to
participate, or such Person as the Administrator or such Purchaser Agents may designate, during
business hours, to conduct audits or visit and inspect any of the properties of the Seller to
examine the Records, internal controls and procedures maintained by the Seller and take copies and
extracts therefrom, and to discuss the Seller’s affairs with its officers, employees and
independent accountants; provided that, so long as (i) at any time during such calendar year the
difference between the Purchase Limit minus the daily weighted average Aggregate Invested Amount is
less than the product of 50.0% times the Purchase Limit, (ii) ABDC has, at such time, debt ratings
at or above BBB- by Standard & Poor’s, Ba1 by Xxxxx’x and BBB by Fitch and (iii) no Amortization
Event or Unmatured Amortization Event has occurred and is continuing, then any such audit to be
conducted during the calendar year 2008 shall not be via visit or onsite inspection, but shall be
in form, scope and substance reasonably satisfactory to the Administrator and the Purchaser Agents.
The Seller hereby authorizes such officers, employees and independent accountants to discuss with
the Administrator and each Purchaser Agent, or such Person they may designate, the affairs of the
Seller. The Seller shall reimburse the Administrator and each Purchaser Agent for all reasonable
fees, costs and out-of-pocket expenses incurred by or on behalf of the Administrator and each
Purchaser Agent in connection with up to two (2) such audits and visits for each per calendar year
promptly upon receipt of a written invoice therefor; provided that, following the occurrence of an
Amortization Event or an Unmatured Amortization Event, the Seller shall reimburse the Administrator
and each Purchaser Agent for all reasonable fees, costs and out-of-pocket expenses incurred by or
on behalf of the Administrator and each Purchaser Agent in connection with the foregoing actions
promptly upon receipt of written invoice therefor regardless of the number of audits or visits in
such year. Subject to the requirements of applicable laws, the Administrator and each Purchaser
Agent
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agrees to use commercially reasonable precautions to keep confidential, in accordance with its
respective customary procedures for handling confidential information, any non-public information
supplied to it by the Seller pursuant to any such audit or visit which is identified by the Seller
as being confidential at the time the same is delivered to the Administrator and each Purchaser
Agent.
(o) Separate Corporate Existence. The Seller shall:
(i) Maintain in full effect its existence, rights and franchises as a corporation under
the laws of the state of its incorporation and will obtain and preserve its qualification to
do business in each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement and each Transaction Document and
each other instrument or agreement necessary or appropriate to proper administration hereof
and permit and effectuate the transactions contemplated hereby.
(ii) Maintain its own deposit account or accounts, separate from those of any of its
Affiliates, with commercial banking institutions. The funds of the Seller will not be
diverted to any other Person or for other than the corporate use of the Seller and, except
as may be expressly permitted by this Agreement, the funds of the Seller shall not be
commingled with those of any of its Affiliates.
(iii) To the extent that the Seller contracts or does business with vendors or service
providers where the goods and services provided are partially for the benefit of any other
Person, the costs incurred in so doing shall be fairly allocated to or among the Seller and
such entities for whose benefit the goods and services are provided, and the Seller and each
such entity shall bear its fair share of such costs. All material transactions between the
Seller and any of its Affiliates shall be only on an arm’s-length basis.
(iv) Maintain a principal executive and administrative office through which its
business is conducted and a telephone number separate from those of its stockholders and
Affiliates. At all times have a Board of Directors consisting of three members, at least
one member of which is an Independent Director.
(v) Conduct its affairs strictly in accordance with its certificate of incorporation
and observe all necessary, appropriate and customary corporate formalities, including, but
not limited to, holding all regular and special stockholders’ and directors’ meetings
appropriate to authorize all corporate action, keeping separate and accurate minutes of such
meetings, passing all resolutions or consents necessary to authorize actions taken or to be
taken, and maintaining accurate and separate books, records and accounts, including, but not
limited to, intercompany transaction accounts. Regular stockholders’ and directors’
meetings (or unanimous written consents in lieu thereof) shall be held at least annually.
(vi) Ensure that decisions with respect to its business and daily operations shall be
independently made by the Seller (although the officer making any particular decision
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may also be an employee, officer or director of an Affiliate of the Seller) and shall
not be dictated by an Affiliate of the Seller.
(vii) Act solely in its own corporate name and through its own authorized officers and
agents, and no Affiliate of the Seller shall be appointed to act as its agent, except as
expressly contemplated by this Agreement. The Seller shall at all times use its own
stationery.
(viii) Ensure that no Affiliate of the Seller shall advance funds to the Seller, other
than (i) capital contributions from ABDC, made to enable the Seller to pay the purchase
price of Receivables or (ii) as is otherwise provided herein or in any Transaction Document,
and no Affiliate of the Seller will otherwise supply funds to, or guaranty debts of, the
Seller; provided that an Affiliate of the Seller may provide funds to the Seller in
connection with the capitalization of the Seller, including the provision of capital
necessary to assure that the Seller has “substantial assets” as described in Treasury
Regulation Section 301.7701-2(d)(2).
(ix) Other than organizational expenses and as expressly provided herein, pay all
expenses, indebtedness and other obligations incurred by it.
(x) Not enter into any guaranty, or otherwise become liable, with respect to any
obligation of any of its Affiliates.
(xi) Ensure that any financial reports required of the Seller shall comply with
generally accepted accounting principles and shall be issued separately from, but may be
consolidated with, any reports prepared for any of its Affiliates.
(xii) Ensure that at all times it is adequately capitalized to engage in the
transactions contemplated in its certificate of incorporation, the Transaction Documents and
this Agreement.
(xiii) Take such action to ensure that: (A) the Seller is solvent, including, without
limitation, that it has not been rendered insolvent by the actions contemplated by the
Transaction Documents; (B) the Seller intends to and reasonably expects to survive as a
stand-alone entity, independent of financial assistance of any entity not contemplated by
the Transaction Documents; (C) the Seller shall at all times have its own telephone number
separate from that of ABDC; (D) neither the assets nor the creditworthiness of the Seller is
held out as being available for the payment of any liability of ABDC; (E) each of ABDC and
the Seller operates as a separate legal entity and not as a division or department thereof;
(F) the Seller does not engage in or expect to engage in business for which its remaining
property represents an unreasonably small capitalization; and (G) the Seller does not intend
to incur nor does it believe it will incur indebtedness that it will not be able to repay at
its maturity.
(p) Information. The Seller shall provide the Administrator (which shall promptly
forward a copy to each Purchaser Agent) with the following:
(i) as soon as practicable and in any event within 90 days following the close of each
fiscal quarter, excluding the last fiscal quarter, of each Fiscal Year of the Seller
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during the term of this Agreement, an unaudited consolidated balance sheet of the
Seller as of the end of such quarter and unaudited consolidated statements of income of the
Seller for such quarter and for the Fiscal Year through such quarter, setting forth in
comparative form the corresponding figures for the corresponding quarter of the preceding
Fiscal Year (provided that such comparison will not be available until the report provided
for the December, 2004 quarter), all in reasonable detail and certified by the chief
financial officer of the Seller, subject to adjustments of the type which would occur as a
result of a year-end audit, as having been prepared in accordance with GAAP; and
(ii) as soon as practicable and in any event within 120 days after the close of each
Fiscal Year of the Seller during the term of this Agreement, a consolidated balance sheet of
the Seller as at the close of such Fiscal Year and consolidated statements of income of the
Seller for such Fiscal Year, setting forth in comparative form the corresponding figures for
the preceding Fiscal Year (provided that such comparison will not be available until the
report provided for the September, 2004 Fiscal Year end), all in reasonable detail; provided
that following an Amortization Event or Unmatured Amortization Event, the Administrator or
any Purchaser Agent may require that such information be certified (with respect to the
consolidated financial statements) by independent certified public accountants of nationally
recognized standing selected by the Seller whose certificate or opinion accompanying such
financial statements shall not contain any qualification, exception or scope limitation not
satisfactory to the Administrator and each Purchaser Agent, and accompanied by any
management letter prepared by such accountants.
(iii) Compliance Certificate. Together with the financial statements required
pursuant to this Section 7.1(p), a compliance certificate in substantially the form
of Exhibit IV signed by an Authorized Officer of the Seller and dated the date of
such annual financial statement or such quarterly financial statement, as the case may be.
Section 7.2 Negative Covenants of the Seller. Until the date on which the Aggregate
Unpaids have been indefeasibly paid in full and this Agreement terminates in accordance with its
terms, the Seller hereby covenants, as to itself, that it will not:
(a) No Rescissions or Modifications. Rescind or cancel any Receivable or related
Contract or modify any terms or provisions thereof or grant any Dilution to an Obligor, except in
accordance with the applicable Originator’s Credit and Collection Policy or otherwise with the
prior written consent of the Administrator and the Required Purchaser Agents, unless such
Receivable has been deemed collected pursuant to Section 1.4(a) or repurchased pursuant to
the Receivables Sale Agreement.
(b) No Liens. Cause any of the Receivables or related Contracts, or any inventory or
goods the sale of which give rise to a Receivable, or any Lock-Box or Collection Account or any
right to receive any payments received therein or deposited thereto, to be sold, pledged, assigned
or transferred or to be subject to a Lien, other than the sale and assignment of the Receivable
Interest therein to the Administrator, for the benefit of the Secured Parties, and the Liens
created in connection with the transactions contemplated by this Agreement.
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(c) Consolidations, Mergers and Sales of Assets. (i) Consolidate or merge with or
into any other Person or (ii) sell, lease or otherwise transfer all or substantially all of its
assets to any other Person.
(d) No Changes. Make any change in the character of its business, which change would
materially impair the collectibility of any Receivable, without prior written consent of the
Administrator and each Purchaser Agent, or change its name, identity or corporate structure in any
manner which would make any financing statement or continuation statement filed in connection with
this Agreement or the transactions contemplated hereby seriously misleading within the meaning of
Section 9-507(c) of the UCC of any applicable jurisdiction or other applicable Laws unless it shall
have given the Administrator (which shall promptly forward a copy to each Purchaser Agent) at least
45 days’ prior written notice thereof and unless prior thereto it shall have caused such financing
statement or continuation statement to be amended or a new financing statement to be filed such
that such financing statement or continuation statement would not be seriously misleading.
(e) Capital Stock. Issue any capital stock except to ABDC. The Seller shall not pay
any dividends to ABDC if such payment would be prohibited under the General Corporation Law of the
State of Delaware.
(f) No Indebtedness. Incur any Indebtedness other than as permitted under this
Agreement.
(g) Change in Payment Instructions to Obligors. Except as may be required by the
Administrator (which shall promptly forward a copy to each Purchaser Agent) pursuant to Section
8.2(b), the Seller will not add or terminate any bank as a Collection Bank, or make any change
in the instructions to Obligors regarding payments to be made to any Lock-Box or Collection
Account, unless (i) the Administrator (which shall promptly forward a copy to each Purchaser Agent)
shall have received, at least ten (10) days before the proposed effective date therefor, (A)
written notice of such addition, termination or change and (B) with respect to the addition of a
Collection Bank or a Collection Account or Lock-Box, an executed Collection Account Agreement
(which is reasonably satisfactory to the Administrator) with respect to the new Collection Account
or Lock-Box, (ii) with respect to the termination of a Collection Bank or a Collection Account or
Lock-Box, the Administrator shall have consented thereto (which consent shall not be unreasonably
withheld and will be provided or withheld within 10 days of request) and (iii) with respect to any
changes in instructions to Obligors regarding payments, the Administrator shall have consented
thereto; provided that the Servicer may make changes in instructions to Obligors regarding payments
if such new instructions require such Obligor to make payments to another existing Lock-Box or
Collection Account.
(h) Use of Proceeds. Seller will not use the proceeds of the Purchases for any
purpose other than (i) paying for Receivables and Related Security under and in accordance with the
Receivables Sale Agreement, including without limitation, making payments on the Subordinated Notes
(as defined in the Receivables Sale Agreement) to the extent permitted thereunder and under the
Receivables Sale Agreement, (ii) making Demand Advances to ABDC at any time prior to the Final
Facility Termination Date while it is acting as Servicer and no Amortization Event or Unmatured
Amortization Event exists and is continuing, (iii) paying its
26
ordinary and necessary operating expenses when and as due, and (iv) making Restricted Junior
Payments to the extent permitted under this Agreement.
(i) Termination Date Determination. Seller will not designate the Termination Date
(as defined in the Receivables Sale Agreement), or send any written notice to any Originator in
respect thereof, without the prior written consent of the Administrator and each Purchaser Agent,
except with respect to the occurrence of such Termination Date arising pursuant to Section 5.1(e)
of the Receivables Sale Agreement.
(j) Restricted Junior Payments. Seller will not make any Restricted Junior Payment if
after giving effect thereto, Seller’s Net Worth (as defined in the Receivables Sale Agreement)
would be less than the Required Capital Amount (as defined in the Receivables Sale Agreement).
(k) Seller Indebtedness. Seller will not incur or permit to exist any Indebtedness or
liability on account of deposits except: (i) the Aggregate Unpaids, (ii) the Subordinated Loans,
and (iii) other current accounts payable arising in the ordinary course of business and not
overdue.
(l) Prohibition on Additional Negative Pledges. The Seller shall not enter into or
assume any agreement (other than this Agreement and the other Transaction Documents) prohibiting
the creation or assumption of any Lien upon the Purchased Assets except as contemplated by the
Transaction Documents, or otherwise prohibiting or restricting any transaction contemplated hereby
or by the other Transaction Documents, and the Seller shall not enter into or assume any agreement
creating any Lien upon the Subordinated Notes.
Section 7.3 Affirmative Covenants of the Servicer. In addition to its other covenants
contained herein or made pursuant hereto, the Servicer covenants with the Administrator, each
Purchaser Agent and each Purchaser as follows:
(a) Notice of Amortization Event. Promptly upon becoming aware of any Amortization
Event or Unmatured Amortization Event, the Servicer shall give the Administrator (which shall
promptly forward a copy to each Purchaser Agent) notice thereof, together with a written statement
of a Responsible Officer setting forth the details thereof and any action with respect thereto
taken or contemplated to be taken by such Servicer.
(b) Notice of Material Adverse Change. Promptly upon any Responsible Officer of the
Servicer becoming aware thereof, the Servicer shall give the Administrator (which shall promptly
forward a copy to each Purchaser Agent) notice of any material adverse change in the business,
operations or financial condition of the Servicer which reasonably could affect adversely the
collectibility of the Receivables or the ability of the Servicer to perform its obligations under
this Agreement.
(c) Preservation of Corporate Existence. The Servicer shall preserve and maintain its
corporate existence, rights, franchises and privileges in the jurisdiction of its incorporation,
and qualify and remain qualified in good standing as a foreign corporation in each jurisdiction
where the failure to preserve and maintain such existence, rights, franchises, privileges and
qualification would materially adversely affect (i) the interests of the
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Administrator, any Purchaser Agent or any Purchaser hereunder or (ii) the ability of such
Servicer to perform its obligations under this Agreement.
(d) Compliance with Laws. The Servicer shall comply in all material respects with all
Laws applicable to the Servicer, its business and properties, and all Receivables related to the
Receivable Interests.
(e) Enforceability of Obligations. The Servicer shall take such actions as are
reasonable and within its power to ensure that, with respect to an applicable Receivable, the
obligation of any related Obligor to pay the unpaid balance of such Receivable in accordance with
the terms of the related Contract remains legal, valid, binding and enforceable against such
Obligor except as otherwise permitted by Section 8.2(d).
(f) Books and Records. The Servicer shall, to the extent practicable, maintain and
implement administrative and operating procedures (including, without limitation, the ability to
recreate Records evidencing the Receivables in the event of the destruction of the originals
thereof), and keep and maintain all documents, books, Records and other information reasonably
necessary or advisable for the collection of all applicable Receivables (including, without
limitation, Records adequate to permit the identification of all Related Security and Collections
and adjustments to each existing Receivable). Upon the request of the Administrator or any
Purchaser Agent, following the occurrence of an Amortization Event or an Unmatured Amortization
Event, the Servicer shall deliver to the Administrator all Contracts (including, without
limitation, all multiple originals of any such Contract constituting an instrument, a certificated
security or chattel paper) relating to the Receivables.
(g) Fulfillment of Obligations. The Servicer will duly observe and perform, or cause
to be observed or performed, all material obligations and undertakings on its part or on the part
of any subservicer to be observed and performed under or in connection with the Receivables, will
duly observe and perform all material provisions, covenants and other promises required to be
observed by it under the Contracts related to the Receivables, will do nothing to impair the
rights, title and interest of the Administrator, any Purchaser Agent or any Purchaser in and to the
Receivable Interests and will pay when due any taxes, including without limitation any sales tax,
excise tax or other similar tax or charge, payable in connection with such Receivables and their
creation and satisfaction.
(h) Obligor List. The Servicer shall at all times maintain a current list (which may
be stored on magnetic tapes, computer systems or disks) of all Obligors under Contracts related to
the applicable Receivables, including the name, address, telephone number and account number of
each such Obligor. The list shall be updated as provided in Section 8.5(b) and, the
Servicer shall deliver or cause to be delivered a copy of such list to the Administrator (which
shall promptly forward a copy to each Purchaser Agent) as soon as practicable following the
Administrator’s request (but not more frequently than once each calendar quarter unless an
Amortization Event or Unmatured Amortization Event has occurred and is continuing).
(i) Total Systems Failure. The Servicer shall promptly notify the Administrator
(which shall promptly forward a copy to each Purchaser Agent) of any total systems failure and
shall advise the Administrator of the estimated time required to remedy such total systems failure
and of the estimated date on which a Settlement Report can be delivered.
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Until a total systems failure is remedied, the Servicer (i) will furnish to the Administrator
(which shall promptly forward a copy to each Purchaser Agent) such periodic status reports and
other information relating to such total systems failure as the Administrator or any Purchaser
Agent may reasonably request and (ii) will promptly notify the Administrator (which shall promptly
forward a copy to each Purchaser Agent) if the Servicer believes that such total systems failure
cannot be remedied by the estimated date, which notice shall include a description of the
circumstances which gave rise to such delay, the action proposed to be taken in response thereto,
and a revised estimate of the date on which the information required for a Settlement Report can be
delivered. The Servicer shall promptly notify the Administrator (which shall promptly forward a
copy to each Purchaser Agent) when a total systems failure has been remedied.
(j) Notice of Relocation. The Servicer shall give the Administrator (which shall
promptly forward a copy to each Purchaser Agent) 45 days’ prior written notice of any relocation of
its Location. The Servicer will at all times maintain its Location within a jurisdiction in the
United States in which Article 9 of the UCC is in effect as of the date hereof or the date of any
such relocation.
(k) Administrative and Operating Procedures. The Servicer shall maintain and
implement administrative and operating procedures adequate to permit the identification of the
applicable Receivables and all collections and adjustments attributable thereto and shall comply in
all material respects with the Applicable Originator’s Credit and Collection Policy in regard to
each applicable Receivable and related Contract.
(l) Modification of Systems. The Servicer agrees, promptly after the replacement or
any material modification of any computer, automation or other operating systems (in respect of
hardware or software) used to perform its services as Servicer or to make any calculations or
reports hereunder, to give notice of any such replacement or modification to the Administrator
(which shall promptly forward a copy to each Purchaser Agent).
(m) Litigation. As soon as possible, and in any event within ten (10) Business Days
of the Servicer’s knowledge thereof, the Servicer shall give the Administrator (which shall
promptly forward a copy to each Purchaser Agent) notice of (i) any litigation, investigation or
proceeding against the Servicer which may exist at any time which, in the reasonable judgment of
the Servicer could materially impair the ability of the Servicer to perform its obligations under
this Agreement and (ii) any material adverse development in any such previously disclosed
litigation.
(n) ERISA Events. Promptly upon becoming aware of the occurrence or likely occurrence
of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could
reasonably be expected to result in liability of Performance Guarantor and its ERISA Affiliates in
an aggregate amount exceeding $25,000,000. Performance Guarantor shall give the Seller a written
notice specifying the nature thereof, what action Performance Guarantor or any ERISA Affiliate has
taken and, when known, any action taken or threatened by the Internal Revenue Service, the
Department of Labor or the PBGC with respect thereto.
(o) Separate Corporate Existence. As long as ABDC is the Servicer hereunder, the
Servicer shall maintain its legal identity separate from the Seller and take such action to ensure
that: (A) the management of the Servicer does not anticipate any need for its
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having to extend advances to the Seller except for those described in the Transaction
Documents, if any; (B) the Servicer does not conduct its business in the name of the Seller; (C)
the Servicer has a telephone number, stationery and business forms separate from those of the
Seller; (D) the Servicer does not provide for its expenses and liabilities from the funds of the
Seller; (E) the Servicer is not liable for the payment of any liability of the Seller; (F) neither
the assets nor the creditworthiness of the Servicer is held out as being available for the payment
of any liability of the Seller; (G) the Servicer maintains an arm’s-length relationship with the
Seller; and (H) assets are not transferred from the Servicer to the Seller without fair
consideration or with the intent to hinder, delay or defraud the creditors of either company.
(p) Audits. At any time, upon reasonable notice to the Servicer (but not more than
twice per calendar year unless an Amortization Event or Unmatured Amortization Event has occurred),
the Servicer shall permit the Administrator, together with each Purchaser Agent that wants to
participate, or such Person as they may designate, during business hours, to conduct audits or
visit and inspect any of the properties of the Servicer to examine the Records, internal controls
and procedures maintained by the Servicer and take copies and extracts therefrom, and to discuss
the Servicer’s affairs with its officers, employees and independent accountants; provided that, so
long as (i) at any time during such calendar year the difference between the Purchase Limit minus
the daily weighted average Aggregate Invested Amount is less than the product of 50.0% times the
Purchase Limit, (ii) ABDC has, at such time, debt ratings at or above BBB- by Standard & Poor’s,
Ba1 by Xxxxx’x and BBB by Fitch and (iii) no Amortization Event or Unmatured Amortization Event has
occurred and is continuing, then any such audit to be conducted during the calendar year 2008 shall
not be via visit or onsite inspection, but shall be in form, scope and substance reasonably
satisfactory to the Administrator and the Purchaser Agents. The Servicer hereby authorizes such
officers, employees and independent accountants to discuss with the Administrator and each
Purchaser Agent, or such Person as they may designate, the affairs of the Servicer. The Seller
shall reimburse the Administrator and each Purchaser Agent for all reasonable fees, costs and
out-of-pocket expenses incurred by or on behalf of the Administrator and each Purchaser Agent in
connection with up to two (2) such audits and visits for each per calendar year promptly upon
receipt of a written invoice therefor; provided that following the occurrence of an Amortization
Event or an Unmatured Amortization Event, the Seller shall reimburse the Administrator and each
Purchaser Agent for all reasonable fees, costs and out of pocket expenses incurred by or on behalf
of the Administrator and each Purchaser Agent in connection with the foregoing actions promptly
upon receipt of written invoice therefor regardless of the number of audits or visits in such year.
Subject to the requirements of applicable laws, the Administrator and each Purchaser Agent agrees
to use commercially reasonable precautions to keep confidential, in accordance with its respective
customary procedures for handling confidential information, any non-public information supplied to
it by the Servicer pursuant to any such audit or visit which is identified by the Servicer as being
confidential at the time the same is delivered to the Administrator and each Purchaser Agent.
(q) S.E.C. Filings. Promptly upon the written request of the Administrator or
any Purchaser Agent, provide to the Administrator (which shall promptly forward a copy to each
Purchaser Agent) copies of all registration statements and annual, quarterly, monthly or other
regular reports which Seller or Servicer files with the Securities and Exchange Commission.
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(r) Notices. Servicer will notify the Administrator (which shall promptly forward a
copy to each Purchaser Agent) in writing of any of the following promptly upon learning of the
occurrence thereof, describing the same and, if applicable, the steps being taken with respect
thereto:
(i) Judgments and Proceedings. (A) (1) The entry of any judgment or decree
against Performance Guarantor, the Servicer or any of their respective Subsidiaries if the
aggregate amount of all judgments and decrees then outstanding against Performance
Guarantor, the Servicer and their respective Subsidiaries exceeds $25,000,000 after
deducting (a) the amount with respect to which Performance Guarantor, the Servicer or any
such Subsidiary, as the case may be, is insured and with respect to which the insurer has
assumed responsibility in writing, and (b) the amount for which Performance Guarantor, the
Servicer or any such Subsidiary is otherwise indemnified if the terms of such
indemnification are satisfactory to the Administrator and the Required Purchaser Agents, and
(2) the institution of any litigation, arbitration proceeding or governmental proceeding
against Performance Guarantor or the Servicer; and (B) the entry of any judgment or decree
or the institution of any litigation, arbitration proceeding or governmental proceeding
against Seller.
(ii) Termination Date. The occurrence of the “Termination Date” under and as
defined in the Receivables Sale Agreement.
(iii) Defaults Under Other Agreements. For the Servicer, the occurrence of a
default or an event of default in respect of a financing arrangement for an aggregate
principal amount exceeding $25,000,000. For the Seller, the occurrence of a default or an
event of default in respect of a financing arrangement for an aggregate principal amount
exceeding $11,625.
(iv) Notices under Receivables Sale Agreement. Copies of all notices to be
delivered under the Receivables Sale Agreement.
(s) Rebate Reserves. Servicer shall determine the Rebate Reserve in accordance with
the definition thereof and in a manner consistent with its practice in effect on the date hereof
and report the Rebate Reserve in each Settlement Report.
(t) Accounting Certificate. The Servicer shall deliver, or cause to be delivered, the
certificate described in Section 5.3(k).
(u) Financial Statements. In the event that the balance sheet and/or the statements
of income and cash flow (as described in Section 5.3(k)) of AmerisourceBergen and its
Consolidated Subsidiaries are no longer publicly available, AmerisourceBergen shall, within 90 or
120 days of the end of the applicable quarter or Fiscal Year, respectively, provide copies of such
balance sheet and/or statements of income and cash flow to the Administrator (which shall promptly
forward a copy to each Purchaser Agent).
Section 7.4 Negative Covenants of the Servicer. Until the date on which the Aggregate
Unpaids have been indefeasibly paid in full and the Agreement terminates in accordance with its
terms, the Servicer hereby covenants, as to itself, that it will not:
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(a) No Rescissions or Modifications. Rescind or cancel any Receivable or related
Contract or modify any terms or provisions thereof or grant any Dilution to an Obligor, except in
accordance with the applicable Originator’s Credit and Collection Policy or otherwise with the
prior written consent of the Administrator and the Required Purchaser Agents, unless such
Receivable has been deemed collected pursuant to Section 1.4(a) or repurchased pursuant to
the Receivables Sale Agreement.
(b) No Liens. Cause any of the applicable Receivables or related Contracts, or any
inventory or goods the sale of which may give rise to a Receivable or any Collection Account or any
right to receive any payments received therein or deposited thereto, to be sold, pledged, assigned
or transferred or to be subject to a Lien, other than (i) the sale and assignment of the Receivable
Interest to the Administrator, for the benefit of Secured Parties, (ii) the Liens created in
connection with the transactions contemplated by this Agreement or (iii) Liens in respect of a
Receivable which has been deemed collected pursuant to Section 1.4(a) or repurchased
pursuant to the Receivables Sale Agreement, and for which payment has been received.
(c) No Changes. Make any material change in its Credit and Collection Policy, allow
any material change to be made in the Applicable Originator’s Credit and Collection Policy or
consent to any material change in the Applicable Originator’s Credit and Collection Policy without
prior written consent of the Administrator and each Purchaser Agent (and the Servicer shall provide
notice of any change (unless de minimis) in its or any Originator’s Credit and Collection Policy at
least five (5) Business Days prior to the effective date of such change), or change its name,
identity or corporate structure in any manner which would make any financing statement or
continuation statement filed in connection with this Agreement or the transactions contemplated
hereby seriously misleading within the meaning of Section 9.507(c) of the UCC of any applicable
jurisdiction or other applicable Laws unless it shall have given the Administrator (which shall
promptly forward a copy to each Purchaser Agent) at least 45 days’ prior written notice thereof and
unless prior thereto it shall have caused such financing statement or continuation statement to be
amended or a new financing statement to be filed such that such financing statement or continuation
statement would not be seriously misleading.
(d) Consolidations, Mergers and Sales of Assets. (i) Consolidate or merge with or
into any other Person or (ii) sell, lease or otherwise transfer all or substantially all of its
assets to any other Person; provided that the Servicer may merge with another Person if (A) the
Servicer is the corporation surviving such merger and (B) immediately after giving effect to such
merger, no Amortization Event or Unmatured Amortization Event shall have occurred and be
continuing.
(e) Change in Payment Instructions to Obligors. Except as may be required by the
Administrator pursuant to Section 8.2(b), the Servicer will not add or terminate any bank
as a Collection Bank, or make any change in the instructions to Obligors regarding payments to be
made to any Lock-Box or Collection Account, unless (i) the Administrator (which shall promptly
forward a copy to each Purchaser Agent) shall have received, at least ten (10) days before the
proposed effective date therefor, (A) written notice of such addition, termination or change and
(B) with respect to the addition of a Collection Bank or a Collection Account or Lock-Box, an
executed Collection Account Agreement (which is reasonably satisfactory to the Administrator) with
respect to the new Collection Account or Lock-Box, (ii) with respect to the
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termination of a Collection Bank or a Collection Account or Lock-Box, the Administrator shall
have consented thereto (which consent shall not be unreasonably withheld and will be provided or
withheld within 10 days of request) and (iii) with respect to any changes in instructions to
Obligors regarding payments, the Administrator shall have consented thereto; provided that the
Servicer may make changes in instructions to Obligors regarding payments if such new instructions
require such Obligor to make payments to another existing Lock-Box or Collection Account.
(f) Prohibition on Additional Negative Pledges. The Servicer shall not enter into or
assume any agreement (other than this Agreement and the other Transaction Documents) prohibiting
the creation or assumption of any Lien upon the Purchased Assets or otherwise prohibiting or
restricting any transaction contemplated hereby or by the other Transaction Documents, and the
Servicer shall not enter into or assume any agreement creating any Lien upon the Subordinated
Notes.
ARTICLE VIII.
ADMINISTRATION AND COLLECTION
Section 8.1 Designation of Servicer.
(a) The servicing, administration and collection of the Receivables shall be conducted by such
Person (the “Servicer”) so designated from time to time in accordance with this Section
8.1. ABDC is hereby designated as, and hereby agrees to perform the duties and obligations of,
the Servicer pursuant to the terms of this Agreement. The Required Purchaser Agents may at any
time following the occurrence of an Amortization Event designate as Servicer any Person to succeed
ABDC or any successor Servicer; provided that the Rating Agency Condition is satisfied.
(b) ABDC may delegate, and ABDC hereby advises the Administrator, each Purchaser Agent and
each Purchaser that it has delegated, to the other Originators, as sub-servicers of the Servicer,
certain of its duties and responsibilities as Servicer hereunder in respect of the Receivables
originated by such other Originator. Without the prior written consent of the Required Purchaser
Agents (which consent shall not be unreasonably withheld), ABDC shall not be permitted to delegate
any of its duties or responsibilities as Servicer to any Person other than (i) Seller, (ii) the
other Originators, and (iii) with respect to certain Defaulted Receivables, outside collection
agencies in accordance with its customary practices. Neither Seller nor any Originator shall be
permitted to further delegate to any other Person any of the duties or responsibilities of the
Servicer delegated to it by ABDC. If at any time the Required Purchaser Agents shall designate as
Servicer any Person other than ABDC, all duties and responsibilities theretofore delegated by ABDC
to Seller or the other Originators may, at the discretion of the Required Purchaser Agents, be
terminated forthwith on notice given by the Required Purchaser Agents to ABDC and to Seller and the
other Originators.
(c) Notwithstanding the foregoing subsection (b): (i) ABDC shall be and remain
primarily liable to the Administrator, each Purchaser Agent and each Purchaser for the full and
prompt performance of all duties and responsibilities of the Servicer hereunder and (ii) the
Administrator, each Purchaser Agent and each Purchaser shall be entitled to deal exclusively
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with ABDC in matters relating to the discharge by the Servicer of its duties and
responsibilities hereunder. The Administrator, each Purchaser Agent and each Purchaser shall not
be required to give notice, demand or other communication to any Person other than ABDC in order
for communication to the Servicer and its sub-servicer or other delegate with respect thereto to be
accomplished. ABDC, at all times that it is the Servicer, shall be responsible for providing any
sub-servicer or other delegate of the Servicer with any notice given to the Servicer under this
Agreement.
Section 8.2 Duties of Servicer.
(a) The Servicer shall take or cause to be taken all such actions as may be necessary or
advisable to collect each Receivable from time to time, all in accordance with applicable laws,
rules and regulations, with reasonable care and diligence, and in accordance with the Credit and
Collection Policy.
(b) The Servicer will instruct all Obligors to pay all Collections directly to a Lock-Box or
Collection Account. The Servicer shall (on or prior to the Closing Date with respect to each
Lock-Box or Collection Account listed in the Account Disclosure Letter) effect a Collection Account
Agreement substantially in the form of Exhibit V (in each case, with such other changes as
the Administrator may otherwise consent) with each bank party to a Collection Account at any time.
In the case of any remittances received in any Lock-Box or Collection Account that shall have been
identified, to the satisfaction of the Servicer, to not constitute Collections or other proceeds of
the Receivables or the Related Security, the Servicer shall promptly remit such items to the Person
identified to it as being the owner of such remittances. From and after the date the Administrator
delivers to any Collection Bank a Collection Notice pursuant to Section 8.3, the
Administrator may request that the Servicer, and the Servicer thereupon promptly shall instruct all
Obligors with respect to the Receivables, to remit all payments thereon to a new depositary account
specified by the Administrator and, at all times thereafter, Seller and the Servicer shall not
deposit or otherwise credit, and shall not permit any other Person to deposit or otherwise credit
to such new depositary account any cash or payment item other than Collections.
(c) The Servicer shall administer the Collections in accordance with the procedures described
herein. The Servicer shall set aside and hold in trust for the account of Seller and each
Purchaser their respective shares of the Collections in accordance with Article II. The
Servicer shall, upon the request of the Administrator or any Purchaser Agent and after an
Amortization Event or Unmatured Amortization Event, segregate, in a manner acceptable to the
Administrator and each Purchaser Agent, all cash, checks and other instruments received by it from
time to time constituting Collections from the general funds of the Servicer or Seller prior to the
remittance thereof in accordance with Article II. If the Servicer shall be required to
segregate Collections pursuant to the preceding sentence, the Servicer shall segregate and deposit
with a bank designated by the Administrator such allocable share of Collections of Receivables set
aside for each Purchaser on the first Business Day following receipt by the Servicer of such
Collections, duly endorsed or with duly executed instruments of transfer.
(d) The Servicer may, in accordance with the Credit and Collection Policy, extend the maturity
of any Receivable or adjust the Outstanding Balance of any Receivable as the Servicer determines to
be appropriate to maximize Collections thereof; provided that such
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extension or adjustment shall not alter the status of such Receivable as a Delinquent
Receivable or Defaulted Receivable or limit the rights of the Administrator, any Purchaser Agent or
any Purchaser under this Agreement. Notwithstanding anything to the contrary contained herein, the
Required Purchaser Agents shall have the absolute and unlimited right to direct the Servicer to
commence or settle any legal action with respect to any Receivable or to foreclose upon or
repossess any Related Security.
(e) The Servicer shall hold in trust for Seller and the Administrator, each Purchaser Agent
and each Purchaser all Records that (i) evidence or relate to the Receivables, the related
Contracts and Related Security or (ii) are otherwise necessary or desirable to collect the
Receivables and shall, as soon as practicable upon demand of the Administrator or any Purchaser
Agent, deliver or make available to the Administrator and each Purchaser Agent all such Records, at
a place selected by the Administrator. The Servicer shall, as soon as practicable following
receipt thereof turn over to Seller any cash collections or other cash proceeds received with
respect to Indebtedness not constituting Receivables. The Servicer shall, from time to time at the
request of the Administrator or any Purchaser Agent, furnish to the Administrator and each
Purchaser Agent (promptly after any such request) a calculation of the amounts set aside for each
Purchaser pursuant to Article II.
(f) Any payment by an Obligor in respect of any indebtedness owed by it to Originator or
Seller shall, except as otherwise specified by such Obligor or otherwise required by contract or
law and unless otherwise instructed by the Required Purchaser Agents, be applied as a Collection of
any Receivable of such Obligor (starting with the oldest such Receivable) to the extent of any
amounts then due and payable thereunder before being applied to any other receivable or other
obligation of such Obligor.
Section 8.3 Collection Notices. The Administrator is authorized at any time after the
occurrence of an Amortization Event or an Unmatured Amortization Event to date and to deliver to
the Collection Banks the Collection Notices. Seller hereby transfers to the Administrator for the
benefit of the Secured Parties, effective when the Administrator delivers such notice, the
exclusive ownership and control of each Lock-Box and the Collection Accounts and, in connection
therewith, agrees to cause each Collection Bank to modify the name on each Lock-Box and Collection
Account as requested by the Administrator. In case any authorized signatory of Seller whose
signature appears on a Collection Account Agreement shall cease to have such authority before the
delivery of such notice, such Collection Notice shall nevertheless be valid as if such authority
had remained in force. Seller hereby authorizes the Administrator, and agrees that the
Administrator shall be entitled (i) at any time after delivery of the Collection Notices, to
endorse Seller’s name on checks and other instruments representing Collections, (ii) at any time
after the occurrence of an Amortization Event, to enforce the Receivables, the related Contracts
and the Related Security, and (iii) at any time after the occurrence of an Amortization Event, to
take such action as shall be reasonably necessary or desirable to cause all cash, checks and other
instruments constituting Collections of Receivables to come into the possession of the
Administrator rather than Seller.
Section 8.4 Responsibilities of Seller. Anything herein to the contrary
notwithstanding, the exercise by the Administrator, on behalf of Secured Parties, of the
Administrator’s rights hereunder shall not release the Servicer, any Originator or Seller from any
of their duties or obligations with respect to any Receivables or under the related Contracts. The
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Administrator, each Purchaser Agent and each Purchaser shall have no obligation or liability
with respect to any Receivables or related Contracts, nor shall any of them be obligated to perform
the obligations of Seller or any Originator thereunder.
Section 8.5 Settlement Reports.
(a) The Servicer shall prepare and forward to the Administrator (with an electronic copy to
each Purchaser Agent) (i) on each Settlement Reporting Date, a Settlement Report (certified by an
Authorized Officer of the Servicer) and an electronic file of the data contained therein and (ii)
at such times as the Administrator or any Purchaser Agent shall request, a listing by Obligor of
all Receivables together with an aging of such Receivables; provided that, (i) if an Amortization
Event or Unmatured Amortization Event has occurred and is continuing, the Administrator or any
Purchaser Agent may request that the Servicer deliver a Settlement Report more frequently than
monthly, but no more frequently than weekly, and (ii) if ABDC fails to have debt ratings at or
above BBB- by Standard & Poor’s, Baa3 by Xxxxx’x or BBB- by Fitch, the Servicer shall, until such
time as ABDC has debt ratings at or above BBB- by Standard & Poor’s, Baa3 by Xxxxx’x and BBB- by
Fitch or as otherwise consented to in writing by the Administrator and the Required Purchaser
Agents, deliver a Settlement Report weekly.
(b) Upon the request of the Administrator or any Purchaser Agent (but not more frequently than
every quarter), the Servicer shall provide in writing to the Administrator (which shall promptly
forward a copy to each Purchaser Agent) the list of Obligors under Contracts related to the
Receivables including, for each Obligor added to the list, the name, address, telephone number and
account number of such Obligor and if there have been changes in the name, address, telephone
number or account number of any existing Obligor, the revisions shall be provided.
Section 8.6 Servicing Fee. As compensation for the Servicer’s servicing activities on
their behalf, the Servicer shall be paid the Servicing Fee in arrears on each Settlement Date out
of Collections.
ARTICLE IX.
AMORTIZATION EVENTS
Section 9.1 Amortization Events. The occurrence of any one or more of the following
events shall constitute an “Amortization Event”:
(a) the Seller or the Servicer shall fail to remit or fail to cause to be remitted to the
Administrator, any Purchaser Agent or any Purchaser on any day any Collections, including any
amounts to be remitted to reduce the Invested Amount or any portion thereof, or interest or fees
set forth in any Fee Letter and required to be remitted to the Administrator, any Purchaser Agent
or any Purchaser on such day, and with respect to failure to remit interest or any such fees, such
failure shall continue for two Business Days after the date on which such interest or fees becomes
due; or
(b) the Seller or the Servicer shall fail to deposit, or pay or fail to cause to be deposited
or paid when due any other amount due hereunder or shall fail to deliver any
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Settlement Report and such failure shall continue for two (2) Business Days after the date
when such amount or Settlement Report became due; or
(c) any representation, warranty, certification or statement made by the Seller, the Servicer
or any Originator under this Agreement or any other Transaction Document or in any agreement,
certificate, report, appendix, schedule or document furnished by the Seller, the Servicer or any
Originator to the Administrator, any Purchaser Agent or any Purchaser pursuant to or in connection
with this Agreement or any other Transaction Document shall prove to have been false or misleading
in any respect material to this Agreement or any other Transaction Document or the transactions
contemplated hereby or thereby as of the time made or deemed made (including by omission of
material information necessary to make such representation, warranty, certification or statement
not misleading) and which continues to be false or misleading in any material respect for a period
of ten (10) Business Days after either (i) any Responsible Officer of the Seller or the Servicer
becomes aware thereof or (ii) notice thereof to such Person by the Administrator, any Purchaser
Agent or any Purchaser; or
(d) a Change in Control shall occur with respect to the Performance Guarantor; or
(e) except as otherwise provided in this Section 9.1, the Seller, the Servicer or any
Originator shall default or fail in the performance or observance of any other covenant, agreement
or duty applicable to it contained herein (other than any covenant, agreement or duty applicable to
it set forth in Section 10.4 (a) or (b)) and such default or failure shall continue for ten
(10) Business Days after either (i) any Responsible Officer of the Seller or the Servicer becomes
aware thereof or (ii) notice thereof to such Person by the Administrator, any Purchaser Agent or
any Purchaser; or
(f) the Seller shall fail to pay any Indebtedness when due and such failure shall continue
beyond the applicable grace period, if any, specified in the agreement or instrument relating to
such Indebtedness; or AmerisourceBergen or any of its Consolidated Subsidiaries (other than the
Seller, if applicable) shall fail to pay any Indebtedness in excess of $25,000,000 of
AmerisourceBergen or any of its Consolidated Subsidiaries, as the case may be, or any interest or
premium on such Indebtedness, in either case, when due (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 instrument relating to such Indebtedness; or
any other default under any agreement or instrument relating to any such Indebtedness or any other
event, shall occur and shall continue after the applicable grace period, if any, specified in such
agreement or instrument if the effect of such default or event is to accelerate, or to permit the
acceleration of, the maturity of such Indebtedness; or a final court decision of $25,000,000 or
more shall be rendered against AmerisourceBergen or any of its Consolidated Subsidiaries and (i)
such amount remains unpaid and (ii) AmerisourceBergen or the relevant Consolidated Subsidiary does
not, in good faith, contest such decision within the relevant statutory period; or
(g) the average of the Default Ratios, computed for each of the immediately preceding three
months, shall exceed 0.50%; or the average of the Dilution Ratios, computed for each of the
immediately preceding three months, shall exceed 4.25%; or the average of the
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Delinquency Ratios, computed for each of the immediately preceding three months, shall exceed
2.25%; or the Days Sales Outstanding for any month shall exceed 25 days; or
(h) (i) a Collection Bank shall default or fail in the performance or observance of any
agreement or duty applicable to it in respect of any Collection Account, and (A) the Servicer has
not notified the Administrator (which shall promptly forward a copy to each Purchaser Agent),
within two (2) Business Days after becoming aware of such continuing default or failure, of the
action it intends to take to cure such default or failure or (B) if so requested by the
Administrator, any Purchaser Agent or any Purchaser, the Seller has not established, within fifteen
(15) Business Days of such default or failure, another Collection Account with a Collection Bank
agreed upon by the Seller and the Administrator, or (ii) the Seller or the Servicer shall default
or fail in the performance or observance of any covenant, agreement or duty set forth in
Sections 8.2 or 8.3 hereof which is within the control of the Seller or the
Servicer, as the case may be, and such default or failure shall continue for two (2) Business Days
after notice thereof; or
(i) there shall be pending any litigation, investigation or proceeding, or any material
adverse development in any such litigation shall have occurred, which the Seller or the Servicer is
required to disclose pursuant to Section 7.1(i) or Section 7.3(m), respectively,
hereof, which in the reasonable opinion of the Administrator, any Purchaser Agent or any Purchaser
is likely to materially adversely affect the financial position or results of operations of the
Seller or the Servicer or impair the ability of the Seller or the Servicer to perform its
respective obligations under this Agreement; or
(j) there shall have occurred any event which could have a material adverse effect on (i) the
ability of any Seller Party, any Originator or the Performance Guarantor to perform its obligations
under any Transaction Document, (ii) the legality, validity or enforceability of any Transaction
Document, (iii) the Administrator’s security interest in the Receivables generally or in any
significant portion of the Receivables or the proceeds thereof, or (iv) the collectibility of the
Receivables generally or of any material portion of the Receivables; or
(k) an Event of Bankruptcy shall occur with respect to the Seller, the Servicer, any
Originator or the Performance Guarantor; or
(l) the Aggregate Invested Amount shall exceed the Purchase Limit; or
(m) the Net Pool Balance shall at any time be less than an amount equal to the sum of (i) the
Aggregate Invested Amount plus (ii) the Required Reserve; or
(n) ABDC is replaced as Servicer pursuant to Section 8.1(a) or otherwise resigns as
Servicer; or
(o) AmerisourceBergen shall default or fail in the performance or observance of any of the
covenants set forth in Section 6.12 of the Credit Agreement as in effect on April 30, 2009 (without
giving effect to any amendment, waiver, termination, supplement or other modification thereof
unless consented to by the Required Purchaser Agents); or
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(p) a final court decision for $11,625 or more shall be rendered against the Seller; or
(q) ABDC shall cease to own 100% of the capital stock of the Seller or the Performance
Guarantor shall cease to own (directly or indirectly) 100% of the capital stock of each Originator;
or
(r) ABDC shall (i) consolidate or merge with or into any other Person or (ii) sell, lease or
otherwise transfer all or substantially all of its assets to any other Person unless ABDC is the
survivor of such transaction; or
(s) (i) definition of “Excluded Subsidiary” (clause (b) thereof), “Loan Parties,”
“Securitization,” “Securitization Entity,” or “Designated Subsidiary” contained in the Credit
Agreement is amended, modified or waived without the prior written consent of the Administrator and
the Required Purchaser Agents; (ii) Section 6.01(b)(i), 6.02(e), 6.04 (the last sentence (other
than clause (b) thereof) thereto), 6.05(b), 6.05(c), 6.08(b), 6.08(c), 6.08(d) or 6.09 (clause (i)
of the first proviso thereto) of the Credit Agreement is amended, modified or waived without the
prior written consent of the Administrator and the Required Purchaser Agents; or (iii) any other
provision of (including by the addition of a provision) the Credit Agreement is amended, modified
or waived without the prior written consent of the Administrator and the Required Purchaser Agents
in any way which could materially and adversely impair the interests of the Administrator, any
Purchaser Agent or any Purchaser in the Receivables, Related Security or Collections or could
result in the creation of a Lien thereof; or
(t) the Performance Guarantor shall default or fail in the performance of any covenant or
agreement set forth in the Performance Guaranty; or
(u) the “Termination Date” or any “Termination Event” under and as defined in the Receivables
Sale Agreement shall occur under the Receivables Sale Agreement or any Originator shall for any
reason cease to transfer, or cease to have the legal capacity to transfer, or otherwise be
incapable of transferring Receivables to Seller under the Receivables Sale Agreement; or
(v) this Agreement shall terminate in whole or in part (except in accordance with its terms),
or shall cease to be effective or to be the legally valid, binding and enforceable obligation of
Seller, or any Obligor shall directly or indirectly contest in any manner such effectiveness,
validity, binding nature or enforceability, or the Administrator (for the benefit of Secured
Parties) shall cease to have a valid and perfected first priority security interest in the
Purchased Assets; or
(w) the Performance Undertaking shall cease to be effective or to be the legally valid,
binding and enforceable obligation of Performance Guarantor, or Performance Guarantor shall
directly or indirectly contest in any manner such effectiveness, validity, binding nature or
enforceability of its obligations thereunder; or
(x) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the
Internal Revenue Code with regard to any of the Purchased Assets or any assets of the Seller,
Performance Guarantor or any Affiliate and such lien shall not have been released
39
within seven (7) days, or the PBGC shall, or shall indicate its intention to, file notice of a
lien pursuant to Section 4068 of ERISA with regard to any of the Purchased Assets; or
(y) An ERISA Event shall occur with respect to a Pension Plan or Multiemployer Plan which has
resulted or could reasonably be expected to result in liability of Performance Guarantor or any of
its ERISA Affiliates under the Internal Revenue Code or Title IV of ERISA to such Pension Plan,
such Multiemployer Plan or the PBGC in an aggregate amount in excess of $25,000,000.
Section 9.2 Remedies. Upon the occurrence and during the continuation of an
Amortization Event, the Administrator may, or upon the direction of any Purchaser Agent shall, take
any of the following actions: (i) replace the Person then acting as Servicer (ii) declare the
Facility Termination Date for all Purchaser Groups to have occurred, whereupon Reinvestments shall
immediately terminate and the Final Facility Termination Date shall forthwith occur, all without
demand, protest or further notice of any kind, all of which are hereby expressly waived by each
Seller Party; provided that, upon the occurrence of an Event of Bankruptcy with respect to any
Seller Party, the Facility Termination Date for all Purchaser Groups shall automatically occur,
without demand, protest or any notice of any kind, all of which are hereby expressly waived by each
Seller Party, (iii) deliver the Collection Notices to the Collection Banks, (iv) exercise all
rights and remedies of a secured party upon default under the UCC and other applicable laws, and
(v) notify Obligors of the Administrator’s security interest in the Receivables and other Purchased
Assets. The aforementioned rights and remedies shall be without limitation, and shall be in
addition to all other rights and remedies of the Administrator, each Purchaser Agent and each
Purchaser otherwise available under any other provision of this Agreement, by operation of law, at
equity or otherwise, all of which are hereby expressly preserved, including, without limitation,
all rights and remedies provided under the UCC, all of which rights shall be cumulative.
ARTICLE X.
INDEMNIFICATION
Section 10.1 Indemnities by the Seller Parties. Without limiting any other rights
that the Administrator, any Purchaser Agent, any Purchaser or any Funding Source may have hereunder
or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the
Administrator, each Purchaser Agent, each Purchaser, each Funding Source and each of the respective
assigns, officers, directors, members, partners, certificateholders, Administrators and employees
of the foregoing (each, an “Indemnified Party”) from and against any and all damages, losses,
claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable
attorneys’ fees (which attorneys may be employees of any Indemnified Party) and disbursements (all
of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or
incurred by any of them arising out of or as a result of this Agreement or the acquisition, either
directly or indirectly, by any Indemnified Party of an interest in the Receivables, and (B) the
Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified
Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as
Servicer hereunder; excluding, however, in all of the foregoing instances under the preceding
clauses (A) and (B):
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(a) Indemnified Amounts to the extent a final judgment of a court of competent
jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful
misconduct on the part of the Indemnified Party seeking indemnification;
(b) Indemnified Amounts to the extent the same results from losses in respect of
Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of
creditworthiness of the related Obligor; or
(c) taxes imposed by the jurisdiction in which such Indemnified Party’s principal
executive office is located, on or measured by the overall net income of such Indemnified
Party to the extent that the computation of such taxes is consistent with the
characterization for income tax purposes of the acquisition by any Purchaser of Receivables
as a loan or loans by any Purchaser to Seller secured by the Receivables, the Related
Security, the Collection Accounts and the Collections;
provided that nothing contained in this sentence shall limit the liability of any Seller Party or
limit the recourse of any Indemnified Party to any Seller Party for amounts otherwise specifically
provided to be paid by such Seller Party under the terms of this Agreement. Without limiting the
generality of the foregoing indemnification, Seller shall indemnify the Indemnified Parties for
Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables,
regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer)
relating to or resulting from:
(i) any representation or warranty made by any Seller Party or any Originator (or any
officers of any such Person) under or in connection with this Agreement, any other
Transaction Document or any other information or report delivered by any such Person
pursuant hereto or thereto, which shall have been false or incorrect when made or deemed
made;
(ii) the failure by Seller, the Servicer or any Originator to comply with any
applicable law, rule or regulation with respect to any Receivable or Contract related
thereto, or the nonconformity of any Receivable or Contract included therein with any such
applicable law, rule or regulation or any failure of any Originator to keep or perform any
of its obligations, express or implied, with respect to any Contract;
(iii) any failure of Seller, the Servicer or any Originator to perform its duties,
covenants or other obligations in accordance with the provisions of this Agreement or any
other Transaction Document;
(iv) any products liability, personal injury or damage suit, or other similar claim
arising out of or in connection with merchandise, insurance or services that are the subject
of any Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the
Obligor) of the Obligor to the payment of any Receivable (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
41
terms), or any other claim resulting from the sale of the merchandise or service
related to such Receivable or the furnishing or failure to furnish such merchandise or
services;
(vi) the commingling of Collections of Receivables at any time with other funds;
(vii) any investigation, litigation or proceeding related to or arising from this
Agreement or any other Transaction Document, the transactions contemplated hereby, the use
of the proceeds of any Purchase, the Purchased Assets or any other investigation, litigation
or proceeding relating to Seller, the Servicer or any Originator in which any Indemnified
Party becomes involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect of any
Receivable as a result of such Obligor being immune from civil and commercial law and suit
on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Amortization Event of the type described in Section 9.1(k);
(x) any failure of Seller to acquire and maintain legal and equitable title to, and
ownership of any of the Purchased Assets from the applicable Originator, free and clear of
any Lien (other than as created hereunder); or any failure of Seller to give reasonably
equivalent value to any Originator under the Receivables Sale Agreement in consideration of
the transfer by such Originator of any Receivable, or any attempt by any Person to void such
transfer under statutory provisions or common law or equitable action;
(xi) any failure to vest and maintain vested in the Administrator for the benefit of
the Secured Parties, or to transfer to the Administrator for the benefit of the Secured
Parties, a valid first priority perfected security interests in the Purchased Assets, free
and clear of any Lien (except as created by the Transaction Documents);
(xii) the failure 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 Assets, and the proceeds thereof, whether at
the time of any Purchase or at any subsequent time;
(xiii) any action or omission by any Seller Party which reduces or impairs the rights
of any Indemnified Party Portion with respect to any Purchased Assets or the value of any
Purchased Assets;
(xiv) any attempt by any Person to void any Purchase or the Administrator’s security
interest in the Purchased Assets under statutory provisions or common law or equitable
action; and
(xv) the failure of any Receivable included in the calculation of the Net Pool Balance
as an Eligible Receivable to be an Eligible Receivable at the time so included.
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Section 10.2 Increased Cost and Reduced Return. If after the date hereof, any
Regulatory Change shall occur: (i) that subjects any Funding Source to any charge or withholding
on or with respect to any Funding Agreement or a Funding Source’s obligations under a Funding
Agreement, or on or with respect to the Receivables, or changes the basis of taxation of payments
to any Funding Source of any amounts payable under any Funding Agreement (except for changes in the
rate of tax on the overall net income of a Funding Source or taxes excluded by Section
10.1) or (ii) that imposes, modifies or deems applicable any reserve, assessment, insurance
charge, special deposit or similar requirement against assets of, deposits with or for the account
of a Funding Source, or credit extended by a Funding Source pursuant to a Funding Agreement or
(iii) that imposes any other condition the result of which is to increase the cost to a Funding
Source of performing its obligations under a Funding Agreement, or to reduce the rate of return on
a Funding Source’s capital as a consequence of its obligations under a Funding Agreement, or to
reduce the amount of any sum received or receivable by a Funding Source under a Funding Agreement
or to require any payment calculated by reference to the amount of interests or loans held or
interest received by it, then, upon demand by the applicable Purchaser Agent, Seller shall pay to
such Purchaser Agent, for the benefit of the relevant Funding Source, such amounts charged to such
Funding Source or such amounts to otherwise compensate such Funding Source for such increased cost
or such reduction (subject to any limitations specifically with respect to this Section
10.2 set forth in the Fee Letters). For the avoidance of doubt, if the issuance of Financial
Accounting Standards Board’s Interpretation No. 46, Statements of Financial Accounting Standards
Nos. 166 and 167, any future statements or interpretations issued by the Financial Accounting
Standards Board or any successor thereto or any other change in accounting standards or the
issuance of any other pronouncement, release or interpretation, causes or requires the
consolidation of all or a portion of the assets and liabilities of the Seller or any Conduit
Purchaser with the assets and liabilities of the Administrator, any Purchaser Agent or any other
Funding Source, such event shall constitute a circumstance on which such Funding Source may base a
claim for reimbursement under this Section 10.2.
Section 10.3 Other Costs and Expenses. Seller shall pay to the Administrator, each
Purchaser Agent and each Purchaser on demand all reasonable costs and out-of-pocket expenses in
connection with the preparation, execution, delivery and administration of this Agreement, the
transactions contemplated hereby and the other documents to be delivered hereunder, including
without limitation, the cost of its auditors auditing the books, records and procedures of Seller,
rating agency fees, reasonable fees and out-of-pocket expenses of independent legal counsel with
respect thereto and with respect to providing advice as to their respective rights and remedies
under this Agreement but excluding salaries and similar overhead costs of each Purchaser Group and
the Administrator (it being understood that, unless otherwise consented to by the Seller, the
Administrator and each Purchaser Group shall endeavor to utilize the same counsel to the extent
reasonably feasible). Seller shall pay to the Administrator, each Purchaser Agent and each
Purchaser on demand any and all costs and expenses thereof, if any, including reasonable counsel
fees and expenses in connection with the enforcement of this Agreement and the other documents
delivered hereunder and in connection with any restructuring or workout of this Agreement or such
documents, or the administration of this Agreement following an Amortization Event.
Section 10.4 Ratings Confirmation.
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(a) If any Funding Source or other Indemnified Party believes or anticipates that it may have
a claim for compensation from the Seller as a result of a Regulatory Change, then, upon written
request from the Administrator at the request and on behalf of such Funding Source or other
Indemnified Party, the Servicer shall (at the Servicer’s own expense) make commercially reasonable
efforts to obtain a rating (the “External Rating”) at least equal to “A” or the equivalent (the
“Minimum Required Rating”), in form satisfactory to the Administrator, of the facility contemplated
by this Agreement from a nationally-recognized rating agency reasonably acceptable to the
Administrator within sixty (60) days from the date of such request from the Administrator. The
Administrator shall promptly forward to each Purchaser Agent a copy of any such written request
from the Administrator to the Servicer.
(b) If no External Rating is received within such sixty (60) day period, or if the External
Rating actually given by such nationally-recognized rating agency is less than the Minimum Required
Rating, then the Servicer may effect a Ratings Cure. The Servicer may effect only one such Ratings
Cure prior to obtaining an External Rating that is equal to or better than the Minimum Required
Rating. A “Ratings Cure” means the satisfaction by the Servicer of each of the following
conditions: (x) prior to or on, or promptly following, the end of such initial sixty (60) day
period, the Servicer notifies the Administrator and each Purchaser Agent of its intention to effect
a Ratings Cure, (y) the Servicer takes, or causes the Seller to take, any actions permitted under
this Agreement and the Receivables Sale Agreement that the Servicer reasonably believes would
expedite or improve the External Rating and (z) within thirty (30) days following the end of such
sixty (60) day period, the Servicer obtains an External Rating of the facility from a
nationally-recognized rating agency reasonably acceptable to the Administrator and such External
Rating is at least equal to the Minimum Required Rating.
(c) If any, but not all, of the Purchaser Agents declare the Facility Termination Date in
accordance with clause (e) of the definition thereof, then the Seller may, at its sole
expense and effort, upon not less than two (2) Business Days’ (or such shorter period agreed to by
such Purchaser Agent) prior notice to each such Purchaser Agent that has declared the Facility
Termination Date, each Purchaser Agent’s related Purchaser Group (each such Purchaser Agent,
collectively with its related Purchaser Group, an “Exiting Purchaser Group”), the Administrator and
each other Purchaser Agent, require such Exiting Purchaser Group to assign and delegate, without
recourse, all of their respective interests, rights and obligation under this Agreement and the
related Transaction Documents (and in accordance with and subject to the terms and provisions set
forth in this Agreement, including, without limitation Article XII hereof) (i) on a pro
rata basis to the non-Exiting Purchaser Groups willing, in their sole discretion, to accept such
assignment (provided, that, if some, but not all, of the non-Exiting Purchaser
Groups are willing to accept such assignment, such assignment may be made on a non pro rata basis)
or (ii) if no non-Exiting Purchaser Groups are willing to accept such assignment, to a new
Purchaser Group; provided, that, in connection with any such assignment under
clause (i) or (ii) of this clause (c), such Exiting Purchaser Group shall
have received an amount equal to the outstanding principal of its Invested Amount, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder and under the other Transaction
Documents from the assignees (to the extent of such outstanding principal and accrued interest and
fees) or the Seller (in the case of all other amounts) (the “Exiting Purchaser Group Payoff
Amount”). Upon the effectiveness of any such assignment contemplated in this clause (c),
the members of the Exiting Purchaser Group shall cease to be parties to this Agreement and shall
have no further rights, obligations or interest under the Transaction Documents (other than any
rights, obligations or
44
interests that by their terms expressly survive any termination thereof). The Exiting
Purchaser Group’s receipt of payment in full of the Exiting Purchaser Group Payoff Amount in
connection with any such assignment contemplated in this clause (c) will constitute payment
in full and satisfaction in full of all of the Seller’s obligations to the Exiting Purchaser Group
under the Transaction Documents (other than with respect to the indemnification and other
liabilities and obligations which by their terms expressly survive any termination thereof).
Nothing contained in Section 10.4 shall preclude any Purchaser or other Indemnified Party
from demanding compensation from the Seller pursuant to Article 10 at any time and without
regard to whether the Minimum Required Rating shall have been obtained, or shall require any
Purchaser or any other Indemnified Party to obtain, or request the Servicer to obtain, any ratings
on the facility evidenced by this Agreement prior to demanding any such compensation from the
Seller. For the avoidance of doubt, if no assignments are made pursuant to the terms and
conditions of this clause (c), then each Purchaser in an Exiting Purchaser Group shall
continue to be an Exiting Purchaser for all purposes under this Agreement, including without
limitation for purposes of clause third of Section 2.2(b) of this Agreement.
ARTICLE XI.
THE AGENTS
Section 11.1 Appointment and Authorization.
(a) Each Purchaser and Purchaser Agent hereby irrevocably designates and appoints Bank of
America, National Association, as the “Administrator” hereunder and authorizes the Administrator to
take such actions and to exercise such powers as are delegated to the Administrator hereby and to
exercise such other powers as are reasonably incidental thereto. The Administrator shall hold, in
its name, for the benefit of each Purchaser, ratably, the Receivable Interests. The Administrator
shall not have any duties other than those expressly set forth herein or any fiduciary relationship
with any Purchaser or Purchaser Agent, and no implied obligations or liabilities shall be read into
this Agreement, or otherwise exist, against the Administrator. The Administrator does not assume,
nor shall it be deemed to have assumed, any obligation to, or relationship of trust or agency with,
the Seller or Servicer. Notwithstanding any provision of this Agreement or any other Transaction
Document to the contrary, in no event shall the Administrator ever be required to take any action
which exposes the Administrator to personal liability or which is contrary to the provision of any
Transaction Document or applicable law.
(b) Each Purchaser hereby irrevocably designates and appoints the respective institution
identified as the Purchaser Agent for such Purchaser’s Purchaser Group on the signature pages
hereto or in the Assumption Agreement or Transfer Supplement pursuant to which such Purchaser
becomes a party hereto, and each authorizes such Purchaser Agent to take such action on its behalf
under the provisions of this Agreement and to exercise such powers and perform such duties as are
expressly delegated to such Purchaser Agent by the terms of this Agreement, if any, together with
such other powers as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, no Purchaser Agent shall have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary relationship with any Purchaser or other
Purchaser Agent or the Administrator, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities on the part of such
45
Purchaser Agent shall be read into this Agreement or otherwise exist against such Purchaser
Agent.
(c) Except as otherwise specifically provided in this Agreement, the provisions of this
Article XI are solely for the benefit of the Purchaser Agents, the Administrator and the
Purchasers, and none of the Seller or Servicer shall have any rights as a third-party beneficiary
or otherwise under any of the provisions of this Article XI, except that this Article
XI shall not affect any obligations which any Purchaser Agent, the Administrator or any
Purchaser may have to the Seller or the Servicer under the other provisions of this Agreement.
Furthermore, no Purchaser shall have any rights as a third-party beneficiary or otherwise under any
of the provisions hereof in respect of a Purchaser Agent which is not the Purchaser Agent for such
Purchaser.
(d) In performing its functions and duties hereunder, the Administrator shall act solely as
the agent of the Purchasers and the Purchaser Agents and does not assume nor shall be deemed to
have assumed any obligation or relationship of trust or agency with or for the Seller or Servicer
or any of their successors and assigns. In performing its functions and duties hereunder, each
Purchaser Agent shall act solely as the agent of its respective Purchaser and does not assume nor
shall be deemed to have assumed any obligation or relationship of trust or agency with or for the
Seller, the Servicer, any other Purchaser, any other Purchaser Agent or the Administrator, or any
of their respective successors and assigns.
Section 11.2 Delegation of Duties. The Administrator may execute any of its duties
through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrator shall not be responsible for the negligence
or misconduct of any agents or attorneys-in-fact selected by it with reasonable care.
Section 11.3 Exculpatory Provisions. None of the Purchaser Agents, the Administrator
or any of their directors, officers, members, partners, certificateholders, agents or employees
shall be liable for any action taken or omitted (i) with the consent or at the direction of the
Required Purchaser Agents (or in the case of any Purchaser Agent, the Purchasers within its
Purchaser Group that have a majority of the aggregate Commitment of such Purchaser Group) or (ii)
in the absence of such Person’s gross negligence or willful misconduct. The Administrator shall
not be responsible to any Purchaser, Purchaser Agent or other Person for (i) any recitals,
representations, warranties or other statements made by the Seller, Servicer, or any of their
Affiliates, (ii) the value, validity, effectiveness, genuineness, enforceability or sufficiency of
any Transaction Document, (iii) any failure of the Seller, the Servicer, any Originator or any of
their Affiliates to perform any obligation hereunder or under the other Transaction Documents to
which it is a party (or under any Contract), or (iv) the satisfaction of any condition specified in
any Transaction Document. The Administrator shall not have any obligation to any Purchaser or
Purchaser Agent to ascertain or inquire about the observance or performance of any agreement
contained in any Transaction Document or to inspect the properties, books or records of the Seller,
Servicer, Originator or any of their Affiliates.
Section 11.4 Reliance by Agents.
(a) Each Purchaser Agent and the Administrator shall in all cases be entitled to rely, and
shall be fully protected in relying, upon any document or other writing or
46
conversation believed by it to be genuine and correct and to have been signed, sent or made by
the proper Person and upon advice and statements of legal counsel (including counsel to the
Seller), independent accountants and other experts selected by the Administrator. Each Purchaser
Agent and the Administrator shall in all cases be fully justified in failing or refusing to take
any action under any Transaction Document unless it shall first receive such advice or concurrence
of the Required Purchaser Agents (or in the case of any Purchaser Agent, the Purchasers within its
Purchaser Group that have a majority of the aggregate Commitment of such Purchaser Group), and
assurance of its indemnification, as it deems appropriate.
(b) The Administrator shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement in accordance with a request of the Required Purchaser Agents or the
Purchaser Agents, and such request and any action taken or failure to act pursuant thereto shall be
binding upon all Purchasers, the Administrator and Purchaser Agents.
(c) The Purchasers within each Purchaser Group with a majority of the Commitment of such
Purchaser Group shall be entitled to request or direct the related Purchaser Agent to take action,
or refrain from taking action, under this Agreement on behalf of such Purchasers. Such Purchaser
Agent shall in all cases be fully protected in acting, or in refraining from acting, under this
Agreement in accordance with a request of such majority Purchasers, and such request and any action
taken or failure to act pursuant thereto shall be binding upon all of such Purchaser Agent’s
Purchasers.
(d) Unless otherwise advised in writing by a Purchaser Agent or by any Purchaser on whose
behalf such Purchaser Agent is purportedly acting, each party to this Agreement may assume that (i)
such Purchaser Agent is acting for the benefit of each of the Purchasers in respect of which such
Purchaser Agent is identified as being the “Purchaser Agent” in the definition of “Purchaser Agent”
hereto, as well as for the benefit of each assignee or other transferee from any such Person, and
(ii) each action taken by such Purchaser Agent has been duly authorized and approved by all
necessary action on the part of the Purchasers on whose behalf it is purportedly acting. Each
Purchaser Agent and its Purchaser(s) shall agree amongst themselves as to the circumstances and
procedures for removal, resignation and replacement of such Purchaser Agent.
Section 11.5 Notice of Amortization Events. Neither any Purchaser Agent nor the
Administrator shall be deemed to have knowledge or notice of the occurrence of any Amortization
Event or Unmatured Amortization Event unless such Purchaser Agent or Administrator has received
notice from any Purchaser, Purchaser Agent, the Servicer or the Seller stating that an Amortization
Event or Unmatured Amortization Event has occurred hereunder and describing such Amortization Event
or Unmatured Amortization Event. In the event that the Administrator receives such a notice, it
shall promptly give notice thereof to each Purchaser Agent whereupon each such Purchaser Agent
shall promptly give notice thereof to its Purchasers. In the event that a Purchaser Agent receives
such a notice (other than from the Administrator), it shall promptly give notice thereof to the
Administrator. The Administrator shall take such action concerning an Amortization Event or
Unmatured Amortization Event as may be directed by the Required Purchaser Agents (unless such
action otherwise requires the consent of all Purchaser Agents), but until the Administrator
receives such directions, the Administrator may (but shall not be obligated to) take such action,
or refrain from taking such
47
action, as the Administrator deems advisable and in the best interests of the Purchasers and
Purchaser Agents.
Section 11.6 Non-Reliance on Administrator, Purchaser Agents and Other Purchasers.
Each Purchaser expressly acknowledges that none of the Administrator, the Purchaser Agents nor any
of their respective officers, directors, members, partners, certificateholders, employees, agents,
attorneys-in-fact or Affiliates has made any representations or warranties to it and that no act by
the Administrator, or any Purchaser Agent hereafter taken, including any review of the affairs of
the Seller, Servicer or any Originator, shall be deemed to constitute any representation or
warranty by the Administrator or such Purchaser Agent, as applicable. Each Purchaser represents
and warrants to the Administrator and the Purchaser Agents that, independently and without reliance
upon the Administrator, Purchaser Agents or any other Purchaser and based on such documents and
information as it has deemed appropriate, it has made and will continue to make its own appraisal
of and investigation into the business, operations, property, prospects, financial and other
conditions and creditworthiness of the Seller, Servicer or the Originators, and the Receivables and
its own decision to enter into this Agreement and to take, or omit, action under any Transaction
Document. Except for items specifically required to be delivered hereunder, the Administrator
shall not have any duty or responsibility to provide any Purchaser Agent with any information
concerning the Seller, Servicer or the Originators or any of their Affiliates that comes into the
possession of the Administrator or any of its officers, directors, members, partners,
certificateholders, employees, agents, attorneys-in-fact or Affiliates.
Section 11.7 Administrators and Affiliates. Each of the Purchasers and the
Administrator and their Affiliates may extend credit to, accept deposits from and generally engage
in any kind of banking, trust, debt, entity or other business with the Seller, Servicer or any
Originator or any of their Affiliates. With respect to the acquisition of the Eligible Receivables
pursuant to this Agreement, each of the Purchaser Agents and the Administrator shall have the same
rights and powers under this Agreement as any Purchaser and may exercise the same as though it were
not such an agent, and the terms “Purchaser” and “Purchasers” shall include, to the extent
applicable, each of the Purchaser Agents and the Administrator in their individual capacities.
Section 11.8 Indemnification. Each Related Committed Purchaser shall indemnify and
hold harmless the Administrator (but solely in its capacity as Administrator) and its officers,
directors, members, partners, certificateholders, employees, representatives and agents (to the
extent not reimbursed by the Seller, the Servicer or any Originator and without limiting the
obligation of the Seller, the Servicer, or any Originator to do so), ratably (based on its
Commitment) from and against any and all liabilities, obligations, losses, damages, penalties,
judgments, settlements, costs, expenses and disbursements of any kind whatsoever (including in
connection with any investigative or threatened proceeding, whether or not the Administrator or
such Person shall be designated a party thereto) that may at any time be imposed on, incurred by or
asserted against the Administrator or such Person as a result of, or related to, any of the
transactions contemplated by the Transaction Documents or the execution, delivery or performance of
the Transaction Documents or any other document furnished in connection therewith (but excluding
any such liabilities, obligations, losses, damages, penalties, judgments, settlements, costs,
expenses or disbursements resulting solely from the gross negligence or willful misconduct of the
Administrator or such Person as finally determined by a court of competent jurisdiction).
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Section 11.9 Successor Administrator. The Administrator may, upon at least five (5)
days notice to the Seller and each Purchaser and Purchaser Agent, resign as Administrator. Such
resignation shall not become effective until a successor agent is appointed by the Required
Purchasers and has accepted such appointment. Upon such acceptance of its appointment as
Administrator hereunder by a successor Administrator, such successor Administrator shall succeed to
and become vested with all the rights and duties of the retiring Administrator, and the retiring
Administrator shall be discharged from its duties and obligations under the Transaction Documents.
After any retiring Administrator’s resignation hereunder, the provisions of Article X and
this Article XI shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was the Administrator.
ARTICLE XII.
ASSIGNMENTS AND PARTICIPATIONS
Section 12.1 Successors and Assigns; Participations; Assignments.
(a) Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns. Except as otherwise
provided herein, no Seller Party may assign or transfer any of its rights or delegate any of its
duties hereunder or under any Transaction Document without the prior consent of the Administrator
and the Purchaser Agents.
(b) Participations. Except as otherwise specifically provided herein, any Purchaser
may sell to one or more Persons (each a “Participant”) participating interests in the interests of
such Purchaser hereunder; provided that, no Purchaser shall grant any participation under which the
Participant shall have rights to approve any amendment to or waiver of this Agreement or any other
Transaction Document. Such Purchaser shall remain solely responsible for performing its
obligations hereunder, and the Seller, each Purchaser Agent and the Administrator shall continue to
deal solely and directly with such Purchaser in connection with such Purchaser’s rights and
obligations hereunder. A Purchaser shall not agree with a Participant to restrict such Purchaser’s
right to agree to any amendment hereto, except amendments that require the consent of all
Purchasers.
(c) Assignments by Certain Related Committed Purchasers. Any Related Committed
Purchaser may assign to one or more Persons (each a “Purchasing Related Committed Purchaser”),
reasonably acceptable to the related Purchaser Agent, any portion of its Commitment pursuant to a
supplement hereto, substantially in the form of Exhibit VIII with any changes as have been
approved by the parties thereto (each, a “Transfer Supplement”), executed by each such Purchasing
Related Committed Purchaser, such selling Related Committed Purchaser, such related Purchaser Agent
and the Administrator and so long as no Amortization Event has occurred with the consent of Seller
(which consent shall not be unreasonably withheld). Any such assignment by Related Committed
Purchaser cannot be for an amount less than $10,000,000. Upon (i) the execution of the Transfer
Supplement, (ii) delivery of an executed copy thereof to the Seller, such related Purchaser Agent
and the Administrator and (iii) payment by the Purchasing Related Committed Purchaser to the
selling Related Committed Purchaser of the agreed purchase price, if any, such selling Related
Committed Purchaser shall be released from its obligations hereunder to the extent of such
assignment and such Purchasing
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Related Committed Purchaser shall for all purposes be a Related Committed Purchaser party
hereto and shall have all the rights and obligations of a Related Committed Purchaser hereunder to
the same extent as if it were an original party hereto. The amount of the Commitment of the
selling Related Committed Purchaser allocable to such Purchasing Related Committed Purchaser shall
be equal to the amount of the Commitment of the selling Related Committed Purchaser transferred
regardless of the purchase price, if any, paid therefor. The Transfer Supplement shall be an
amendment hereof only to the extent necessary to reflect the addition of such Purchasing Related
Committed Purchaser as a “Related Committed Purchaser” and any resulting adjustment of the selling
Related Committed Purchaser’s Commitment.
(d) Assignments to Liquidity Providers and other Funding Source Providers. Any
Conduit Purchaser may at any time grant to one or more of its Liquidity Providers or other Funding
Source, participating interests (or voting rights or a security interest and right of foreclosure
thereon) in its portion of the Receivable Interests. In the event of any such grant by such
Conduit Purchaser of a participating interest to a Liquidity Provider or other Funding Source, such
Conduit Purchaser shall remain responsible for the performance of its obligations hereunder. The
Seller agrees that each Liquidity Provider and Funding Source of any Conduit Purchaser hereunder
shall be entitled to the benefits of Section 1.7.
(e) Other Assignment by Uncommitted Purchasers. Each party hereto agrees and consents
(i) to any Uncommitted Purchaser’s assignment, participation, grant of security interests in or
other transfers of any portion of, or any of its beneficial interest in, the Receivable Interests
(or portion thereof), including without limitation to any collateral agent in connection with its
commercial paper program, if any, and (ii) to the complete assignment by any Uncommitted Purchaser
of all of its rights and obligations hereunder to any other Person with prior notice to the other
parties hereto, and upon such assignment such Uncommitted Purchaser shall be released from all
obligations and duties, if any, hereunder; provided that, such Uncommitted Purchaser may not,
without the prior consent of its Related Committed Purchasers (and, in the case of any assignment
by an Uncommitted Purchaser that is not a Conduit Purchaser, unless an Amortization Event has
occurred and is continuing, the Seller), make any such transfer of its rights hereunder unless the
assignee (i) if it is a Conduit Purchaser, is principally engaged in the purchase of assets similar
to the assets being purchased hereunder, (ii) has as its Purchaser Agent the Purchaser Agent of the
assigning Uncommitted Purchaser and (iii) if it is a Conduit Purchaser, issues commercial paper
with credit ratings substantially comparable to the ratings of the assigning Conduit Purchaser and,
provided, further, that no such consent of the Seller shall be required if the assignee is a
Purchaser, an Affiliate of a Purchaser or an Approved Fund. Any assigning Uncommitted Purchaser
shall deliver to any assignee a Transfer Supplement with any changes as have been approved by the
parties thereto, duly executed by such Uncommitted Purchaser, assigning any portion of its interest
in the Receivable Interests to its assignee. Such Uncommitted Purchaser shall promptly (i) notify
each of the other parties hereto of such assignment and (ii) take all further action that the
assignee reasonably requests in order to evidence the assignee’s right, title and interest in such
interest in the Receivable Interests and to enable the assignee to exercise or enforce any rights
of such Uncommitted Purchaser hereunder. Upon the assignment of any portion of its interest in the
Receivable Interests, the assignee shall have all of the rights hereunder with respect to such
interest (except that the CP Costs therefor shall thereafter accrue at the rate, determined with
respect to the assigning Conduit Purchaser, if applicable, unless the Seller, the related Purchaser
Agent and the assignee shall have agreed upon a different CP Costs).
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(f) Opinions of Counsel. If required by the Administrator or the applicable Purchaser
Agent or to maintain the ratings of any Conduit Purchaser, each Transfer Supplement must be
accompanied by an opinion of counsel of the assignee as to such matters as the Administrator or
such Purchaser Agent may reasonably request.
ARTICLE XIII.
MISCELLANEOUS
Section 13.1 Waivers and Amendments.
(a) No failure or delay on the part of the Administrator, any Purchaser Agent or any Purchaser
in exercising any power, right or remedy under this Agreement shall operate as a waiver thereof,
nor shall any single or partial exercise of any such power, right or remedy preclude any other
further exercise thereof or the exercise of any other power, right or remedy. The rights and
remedies herein provided shall be cumulative and nonexclusive of any rights or remedies provided by
law. Any waiver of this Agreement shall be effective only in the specific instance and for the
specific purpose for which given.
(b) No provision of any Transaction Document may be amended, supplemented, modified or waived
except in writing in accordance with the provisions of this Section 13.1(b). Seller and
the Administrator, with the consent of the Required Purchaser Agents, may enter into written
modifications or waivers of any provisions of any Transaction Document; provided that, no such
modification or waiver shall:
(i) without the consent of each Purchaser affected thereby, (A) extend the
Facility Termination Date for the related Purchaser Group or the date of any payment
or deposit of Collections by Seller or the Servicer, (B) reduce the rate or extend
the time of payment of Yield or any CP Costs (or any component of Yield or CP
Costs), (C) change any fee payable to such Purchaser, (D) change the Invested Amount
of any Receivable Interest, (E) amend, modify or waive any provision of the
definition of Required Purchaser Agents, Section 9.1, Section
12.1(d), Section 12.1(e), this Section 13.1(b), Section
13.5, Section 13.6(b) or Section 13.13, (F) consent to or permit
the assignment or transfer by Seller of any of its rights and obligations under this
Agreement, (G) change the definition of “Available Commitment,” “Commitment,”
“Dilution Reserve,” “Eligible Receivable,” “Government Receivable Excess,”
“Liquidity Agreement”, “Loss Reserve,” “Obligor Concentration Limit,” “Yield
Reserve,” “Purchase Limit,” “Purchase Price,” “Rebate Reserve,” “Required Reserve,”
“Required Reserve Factor Floor” “Servicing Fee Rate,” or “Servicing Reserve” or (H)
amend or modify any defined term (or any defined term used directly or indirectly in
such defined term) used in clauses (A) through (G) above in a manner
that would circumvent the intention of the restrictions set forth in such clauses ;
or
(ii) without the written consent of the Administrator and each Purchaser Agent,
amend, modify or waive any provision of any Transaction Document if the effect
thereof is to affect the rights (including, without limitation, fees and
indemnities) or duties of such Administrator or Purchaser Agent,
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and any material amendment, waiver or other modification of this Agreement shall require
satisfaction of the Rating Agency Condition.
Section 13.2 Notices. Except as provided in this Section 13.2, all
communications and notices provided for hereunder shall be in writing (including bank wire,
telecopy or electronic facsimile transmission or similar writing) and shall be given to the other
parties hereto at their respective addresses or telecopy numbers set forth on the signature pages
hereof or at such other address or telecopy number as such Person may hereafter specify for the
purpose of notice to each of the other parties hereto. Each such notice or other communication
shall be effective (i) if given by telecopy, upon the receipt thereof, (ii) if sent via U.S.
certified or registered mail, three (3) Business Days after the time such communication is
deposited in the mail with first class postage prepaid or (iii) if given by any other means, when
received at the address specified in this Section 13.2. Seller hereby authorizes the
Administrator and each Purchaser Agent to effect Purchases and Interest Period and Yield Rate
selections based on telephonic notices made by any Person whom such Administrator or Purchaser
Agent in good faith believes to be acting on behalf of Seller. Seller agrees to deliver promptly
to such Administrator or Purchaser Agent a written confirmation of each telephonic notice signed by
an authorized officer of Seller; provided that, the absence of such confirmation shall not affect
the validity of such notice. If the written confirmation differs from the action taken by the
Administrator or any Purchaser Agent, the records of such Administrator or Purchaser Agent shall
govern absent manifest error.
Section 13.3 Protection of Administrator’s Security Interest.
(a) Seller agrees that from time to time, at its expense, it will promptly execute and deliver
all instruments and documents, and take all actions, that may be necessary or desirable, or that
the Administrator or any Purchaser Agent may request, to perfect, protect or more fully evidence
the Administrator’s security interest in the Purchased Assets, or to enable the Administrator, any
Purchaser Agent or any Purchaser to exercise and enforce their rights and remedies hereunder. At
any time after the occurrence of an Amortization Event the Administrator may, or the Administrator
may direct Seller or the Servicer to, notify the Obligors of Receivables, at Seller’s expense, of
the ownership or security interests of the Administrator (for the benefit of the Secured Parties)
under this Agreement and may also direct that payments of all amounts due or that become due under
any or all Receivables be made directly to the Administrator or its designee. Seller or the
Servicer (as applicable) shall, at the Administrator’s request, withhold the identities of the
Administrator, each Purchaser Agent and each Purchaser in any such notification.
(b) If any Seller Party fails to perform any of its obligations under Section 13.3(a)
and notice of such failure is given to the Seller Party, the Administrator, any Purchaser Agent or
any Purchaser may (but shall not be required to) perform, or cause performance of, such
obligations, and the costs and expenses incurred in connection therewith shall be payable by Seller
as provided in Section 10.3. Each Seller Party irrevocably authorizes the Administrator at
any time and from time to time in the sole discretion of the Administrator, and appoints the
Administrator as its attorney-in-fact, to act on behalf of such Seller Party (i) to execute on
behalf of Seller as debtor and to file financing statements necessary or desirable in the
Administrator’s sole discretion to perfect and to maintain the perfection and priority of the
interest of the Administrator for the benefit of the Secured Parties in the Receivables and (ii) to
file a carbon, photographic or other reproduction of this Agreement or any financing statement with
respect to
52
the Receivables as a financing statement in such offices as the Administrator in its sole
discretion deems necessary or desirable to perfect and to maintain the perfection and priority of
the Administrator’s security interest in the Purchased Assets, for the benefit of the Secured
Parties. The Administrator shall provide the Seller with copies of any such filings. This
appointment is coupled with an interest and is irrevocable. Each of the Seller Parties (A) hereby
authorizes the Administrator to file financing statements and other filing or recording documents
with respect to the Receivables and Related Security (including any amendments thereto, or
continuation or termination statements thereof), without the signature or other authorization of
such Seller Party, in such form and in such offices as the Administrator reasonably determines
appropriate to perfect or maintain the perfection of the security interest of the Administrator
hereunder, (B) acknowledges and agrees that it is not authorized to, and will not, file financing
statements or other filing or recording documents with respect to the Receivables or Related
Security (including any amendments thereto, or continuation or termination statements thereof),
without the express prior written approval by the Administrator, consenting to the form and
substance of such filing or recording document, and (C) approves, authorizes and ratifies any
filings or recordings made by or on behalf of the Administrator in connection with the perfection
of the security interests in favor of Seller or the Administrator.
Section 13.4 Confidentiality.
(a) Each of the parties hereto shall maintain and shall cause each of its employees, members,
partners, certificateholders and officers to maintain the confidentiality of the Agreement and all
information with respect to the other parties, including all information regarding their respective
businesses obtained by it or them in connection with the structuring, negotiating and execution of
the transactions contemplated herein, except that each such party and its directors, officers,
members, partners, certificateholders and employees may (i) disclose such information to its
accountants, attorneys, investors, potential investors, credit enhancers to the Purchasers and the
agents or advisors of such Persons (“Excepted Persons”), provided, however, that
each Excepted Person shall, as a condition to any such disclosure, agree for the benefit of the
parties hereto that such information shall be used solely in connection with such Excepted Person’s
evaluation of, or relationship with, the Seller and its affiliates, (ii) disclose the existence of
the Agreement, but not the financial terms thereof, (iii) disclose such information as required
pursuant to any law, rule, regulation, direction, request or order of any judicial, administrative
or regulatory authority or proceedings (whether or not having the force or effect of law) and (iv)
disclose the Agreement and such information in any suit, action, proceeding or investigation
(whether in law or in equity or pursuant to arbitration) involving any of the Transaction Documents
for the purpose of defending itself, reducing its liability, or protecting or exercising any of its
claims, rights, remedies, or interests under or in connection with any of the Transaction
Documents; provided that the Persons permitted to make such disclosures under clauses (iii)
and (iv) shall also include credit enhancers to the Purchasers. It is understood that the
financial terms that may not be disclosed except in compliance with this Section 13.4(a)
include, without limitation, all fees and other pricing terms, and all Amortization Events and
priority of payment provisions.
(b) Anything herein to the contrary notwithstanding, each Seller Party hereby consents to the
disclosure of any nonpublic information with respect to it obtained in connection with the
transactions contemplated herein (i) to the Administrator, any Liquidity Agent, any Purchaser, any
Purchaser Agent or any other Funding Source by each other, (ii) by the
53
Administrator, any Liquidity Agent, any Purchaser, any Purchaser Agent or any other Funding
Source to any prospective or actual assignee or participant of any of them or (iii) by the
Administrator, any Liquidity Agent, any Purchaser, any Purchaser Agent or any other Funding Source
to any rating agency, commercial paper dealer or provider of a surety, guaranty or credit or
liquidity enhancement to a Purchaser and to any officers, directors, members, partners,
certificateholders, employees, accountants, advisors, and attorneys of any of the foregoing,
provided each such Person is informed of the confidential nature of such information. In addition,
the Administrator, any Liquidity Agent, any Purchaser, any Purchaser Agent, any other Funding
Source or provider of a surety, guaranty or credit or liquidity enhancement to a Purchaser may
disclose any such nonpublic information as required pursuant to any law, rule, regulation,
direction, request or order of any judicial, administrative or regulatory authority or proceedings
(whether or not having the force or effect of law).
(c) Notwithstanding anything herein to the contrary, the foregoing shall not be construed to
prohibit (i) disclosure of any and all information that is or becomes publicly known, (ii)
disclosure of any and all information if required to do so by any applicable statute, law, rule or
regulation, or (iii) any other disclosure authorized by the Seller or Servicer.
Section 13.5 Bankruptcy Petition. Each party hereto hereby covenants and agrees that
prior to the date which is one year and one day after the payment in full of all outstanding
commercial paper notes or other indebtedness of each Conduit Purchaser, it will not institute
against or join any other Person in instituting against such Conduit Purchaser any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding
under the laws of the United States or any state of the United States.
Section 13.6 Limitation of Liability. (a) No claim may be made by any Seller Party or
any other Person against the Administrator, any Purchaser Agent, any Purchaser or any other Funding
Source or their respective Affiliates, directors, officers, members, partners, certificateholders,
employees, attorneys or agents for any special, indirect, consequential or punitive damages in
respect of any claim for breach of contract or any other theory of liability arising out of or
related to the transactions contemplated by this Agreement, or any act, omission or event occurring
in connection therewith; and each Seller Party hereby waives, releases, and agrees not to xxx upon
any claim for any such damages, whether or not accrued and whether or not known or suspected to
exist in its favor, and (b) no Purchaser shall have any obligation to pay any amounts owing
hereunder unless and until such Purchaser has received such amounts pursuant to its portion of the
Receivable Interests and such amounts are not necessary to pay outstanding commercial paper notes
or other outstanding indebtedness of such Purchaser. In addition, each party hereto hereby agrees
that no liability or obligation of any Purchaser hereunder for fees, expenses or indemnities shall
constitute a claim (as defined in Section 101 of Title 11 of the United States Bankruptcy Code)
against such Purchaser unless such Purchaser has received cash from its portion of the Receivable
Interests sufficient to pay such amounts, and such amounts are not necessary to pay outstanding
commercial paper notes or other indebtedness of such Purchaser.
Section 13.7
CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF
LAWS THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW
54
(EXCEPT IN THE CASE OF THE OTHER TRANSACTION DOCUMENTS, TO THE EXTENT OTHERWISE EXPRESSLY
STATED THEREIN) AND EXCEPT TO THE EXTENT THAT THE PERFECTION OF THE OWNERSHIP INTEREST OF SELLER OR
THE OWNERSHIP OR SECURITY INTEREST OF THE ADMINISTRATOR (FOR THE BENEFIT OF THE SECURED PARTIES) IN
ANY OF THE COLLATERAL IS GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
NEW YORK.
Section 13.8
CONSENT TO JURISDICTION. EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL COURT SITTING IN THE
SOUTHERN DISTRICT OF
NEW YORK OR ANY
NEW YORK STATE COURT SITTING IN
NEW YORK COUNTY IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY SUCH PERSON
PURSUANT TO THIS AGREEMENT, AND EACH SUCH PARTY HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY
WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN
SHALL LIMIT THE RIGHT OF THE ADMINISTRATOR, ANY PURCHASER AGENT OR ANY PURCHASER TO BRING
PROCEEDINGS AGAINST ANY SELLER PARTY IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL
PROCEEDING BY ANY SELLER PARTY AGAINST THE ADMINISTRATOR , ANY PURCHASER AGENT OR ANY PURCHASER OR
ANY AFFILIATE OF THE ADMINISTRATOR, ANY PURCHASER AGENT OR ANY PURCHASER INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR
ANY DOCUMENT EXECUTED BY SUCH SELLER PARTY PURSUANT TO THIS AGREEMENT SHALL BE BROUGHT ONLY IN A
COURT IN
NEW YORK, NEW YORK.
Section 13.9 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES 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, ANY
DOCUMENT EXECUTED BY ANY SELLER PARTY PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED
HEREUNDER OR THEREUNDER.
Section 13.10 Integration; Binding Effect; Survival of Terms.
(a) This Agreement and each other Transaction Document contain the final and complete
integration of all prior expressions by the parties hereto with respect to the subject matter
hereof and shall constitute the entire agreement among the parties hereto with respect to the
subject matter hereof superseding all prior oral or written understandings.
(b) This Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns (including any trustee in bankruptcy). This
Agreement shall create and constitute the continuing obligations of the parties
55
hereto in accordance with its terms and shall remain in full force and effect until terminated
in accordance with its terms; provided that the rights and remedies with respect to (i) any breach
of any representation and warranty made by any Seller Party pursuant to Article V, (ii) the
indemnification and payment provisions of Article X, and Section 13.4, Section
13.5 and Section 13.6 shall be continuing and shall survive any termination of this
Agreement.
(c) Each of the Seller Parties, and the Administrator, the Purchaser Agents and the Purchasers
hereby acknowledges and agrees that the Funding Sources are hereby made express third party
beneficiaries of this Agreement and each of the other Transaction Documents as in effect from time
to time.
Section 13.11 Counterparts; Severability; Section References. This Agreement may be
executed in any number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of which when taken
together shall constitute one and the same Agreement. Delivery of an executed counterpart of a
signature page to this Agreement by telecopier shall be effective as delivery of a manually
executed counterpart of a signature page to this Agreement. Any provisions of this Agreement which
are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. Unless otherwise expressly
indicated, all references herein to “Article,” “Section,” “Schedule” or “Exhibit” shall mean
articles and sections of, and schedules and exhibits to, this Agreement.
Section 13.12 Characterization.
(a) It is the intention of the parties hereto that each Purchase hereunder shall constitute
and be treated as an absolute and irrevocable sale, which Purchase shall provide the Administrator
(for the benefit of the Secured Parties) with the full benefits of ownership of the applicable
Receivable Interest. Except as specifically provided in this Agreement, each sale of a Receivable
Interest hereunder is made without recourse to Seller; provided that (i) Seller shall be liable to
the Administrator, the Purchaser Agents and the Purchasers for all representations, warranties,
covenants and indemnities made by Seller pursuant to the terms of this Agreement, and (ii) such
sale does not constitute and is not intended to result in an assumption by the Administrator, any
Purchaser Agent or any Purchaser or any assignee thereof of any obligation of Seller or any
Originator or any other person arising in connection with the Receivables, the Related Security, or
the related Contracts, or any other obligations of Seller or any Originator.
(b) In addition to any ownership interest which the Administrator or any Purchaser may from
time to time acquire pursuant hereto, Seller hereby grants to the Administrator for the benefit of
Secured Parties a valid and perfected security interest in all of Seller’s right, title and
interest in, to and under all Receivables now existing or hereafter arising, the Collections, each
Lock-Box, each Collection Account, all Related Security, all other rights and payments relating to
such Receivables, and all proceeds of any thereof prior to all other liens on and security
interests therein to secure the prompt and complete payment of the Aggregate Unpaids. The
Administrator, on behalf of Secured Parties, shall have, in addition to the rights and remedies
that it may have under this Agreement, all other rights and remedies provided to a
56
secured creditor under the UCC and other applicable law, which rights and remedies shall be
cumulative.
Section 13.13 Amendment and Restatement. This Agreement amends and restates the
Original Agreement. This Agreement shall not effect a novation of the obligations of the parties
under the Original Agreement, but instead shall be merely a restatement and, where applicable, an
amendment of the terms governing such obligations. The parties hereto acknowledge and consent to
the amendment or amendment and restatement of any of the other Transaction Documents, as
applicable, entered into in connection herewith on the Closing Date.
Section 13.14 Ratification by Performance Guarantor. The Performance Guarantor
consents to the amendment and restatement hereof and any other amendment to any other Transaction
Document entered into in connection herewith and agrees that this Agreement and all other
Transaction Documents as so amended, remain in full force and effect. The Performance Undertaking
is hereby ratified and reaffirmed by the Performance Guarantor.
<signature pages follow>
57
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered
by their duly authorized officers or attorneys-in-fact as of the date hereof.
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AMERISOURCE RECEIVABLES
FINANCIAL CORPORATION, as Seller
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By: |
/s/
X. X. Xxxxx |
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Name: |
X. X. Xxxxx |
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Title: |
Vice President and Corporate Treasurer |
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Address:
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Amerisource Receivables Financial Corporation
P. O. Xxx 0000
Xxxxxxxxxx, XX 00000 |
Attention:
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Xxxx Xxxxx |
Telephone:
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(000) 000-0000 |
Facsimile:
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(000) 000-0000 |
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AMERISOURCEBERGEN DRUG CORPORATION,
as Servicer
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By: |
/s/
X. X. Xxxxx |
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Name: |
X. X. Xxxxx |
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Title: |
Vice President and Corporate Treasurer |
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Address:
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AmerisourceBergen Drug Corporation
0000 Xxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000 |
Attention:
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Xxxx Xxxxx |
Telephone:
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(000) 000-0000 |
Facsimile:
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(000) 000-0000 |
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BANK OF AMERICA, NATIONAL ASSOCIATION, as
Administrator
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By: |
/s/ Xxxx Xxxxxx |
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Name: |
Xxxx Xxxxxx |
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Title: |
Vice President |
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Address:
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Bank of America, National Association
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000 |
Attention:
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ABCP Conduit Group |
Telephone:
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(000) 000-0000 |
Facsimile:
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(000) 000-0000 |
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BANK OF AMERICA, NATIONAL ASSOCIATION, as an
Uncommitted Purchaser and as Purchaser Agent and
Related Committed Purchaser for Bank of America,
National Association
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By: |
/s/ Xxxx Xxxxxx |
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Name: |
Xxxx Xxxxxx |
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Title: |
Vice President |
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Address:
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Bank of America, National Association
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000 |
Attention:
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ABCP Conduit Group |
Telephone:
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(000) 000-0000 |
Facsimile:
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(000) 000-0000 |
Commitment: $155,000,000
Scheduled Facility Termination Date: April 28, 2011 |
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XXXXX FARGO BANK, NATIONAL ASSOCIATION, as an
Uncommitted Purchaser
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By: |
/s/ Xxxxxxxxx X. Xxxxxx |
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Name: |
Xxxxxxxxx X. Xxxxxx |
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Title: |
Managing Director |
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Address:
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Xxxxx Fargo Bank, National Association
Xxx Xxxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000 |
Telephone:
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000-000-0000 |
Facsimile:
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000-000-0000 |
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Attention:
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Xxxxxxxxx X. Xxxxxx |
Telephone:
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(000) 000-0000 |
Facsimile:
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(000) 000-0000 |
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Attention:
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Xxx Xxxxxxx |
Telephone:
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(000) 000-0000 |
Facsimile:
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(000) 000-0000 |
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Attention:
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Xxxx Xxxxxx |
Telephone:
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(000) 000-0000 |
Facsimile:
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(000) 000-0000 |
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XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Purchaser
Agent and Related Committed Purchaser for Xxxxx Fargo
Bank, National Association
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By: |
/s/ Xxxxxxxxx X. Xxxxxx |
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Name: |
Xxxxxxxxx X. Xxxxxx |
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Title: |
Managing Director |
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Address:
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Xxxxx Fargo Bank, National Association
Xxx Xxxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000 |
Telephone:
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000-000-0000 |
Facsimile:
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000-000-0000 |
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Attention:
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Xxxxxxxxx X. Xxxxxx |
Telephone:
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(000) 000-0000 |
Facsimile:
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(000) 000-0000 |
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Attention:
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Xxx Xxxxxxx |
Telephone:
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(000) 000-0000 |
Facsimile:
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(000) 000-0000 |
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Attention:
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Xxxx Xxxxxx |
Telephone:
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(000) 000-0000 |
Facsimile:
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(000) 000-0000 |
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Commitment: $120,000,000 |
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Scheduled Facility Termination Date: April 28, 2011 |
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LIBERTY STREET FUNDING LLC, as an Uncommitted
Purchaser
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By: |
/s/
Xxxx X. Xxxxx |
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Name: |
Xxxx X. Xxxxx |
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Title: |
Vice President |
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Address:
Liberty Street Funding LLC
c/o Global Securitization Services, LLC
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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THE BANK OF NOVA SCOTIA, as Purchaser Agent and
Related Committed Purchaser
for Liberty Street Funding LLC
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By: |
/s/
Xxxxxx Xxxx |
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Name: |
Xxxxxx Xxxx |
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Title: |
Director |
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Address:
The Bank of Nova Scotia
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Commitment: $145,000,000
Scheduled Facility Termination Date: April 28, 2011
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MARKET STREET FUNDING LLC,
as an Uncommitted Purchaser
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By: |
/s/
Xxxxx X. Xxxxx |
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Name: |
Xxxxx X. Xxxxx |
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Title: |
Vice President |
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c/o AMACAR Group, L.L.C.
0000 Xxxxxxxx Xxxxxxxxx,
Xxxxx 000
Xxxxxxxxx, XX 00000
United States of America
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PNC BANK, NATIONAL ASSOCIATION, as Purchaser Agent
and Related Committed Purchaser
for Market Street Funding LLC
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By: |
/s/
Xxxxxxx X. Xxxxxx |
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Name: |
Xxxxxxx X. Xxxxxx |
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Title: |
Vice President |
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One PNC Plaza, 26th Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Commitment: $50,000,000
Scheduled Facility Termination Date: April 28, 2011
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VICTORY RECEIVABLES CORPORATION, as an Uncommitted
Purchaser
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By: |
/s/
Xxxxx X. Xxxxxxx |
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Name: |
Xxxxx X. Xxxxxxx |
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Title: |
President |
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Address for notice:
Global Securitization Services, LLC
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxx
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THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK
BRANCH, as Purchaser Agent for Victory Receivables
Corporation
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By: |
/s/ Ichinari Matsui |
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Name: |
Ichinari Matsui |
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Title: |
SVP & Group Head |
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Address for notice:
The Bank of Tokyo-Mitsubishi UFJ, Ltd.
Investment Banking Division for the Americas
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Tel. (000) 000-0000
Fax: (000) 000-0000
Email: xxxxxxx@xx.xxxx.xx
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S-7
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Amended and Restated
Receivables Purchase Agreement
(ARFC) |
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THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK
BRANCH, as Related Committed Purchaser for Victory
Receivables Corporation
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By: |
/s/
Xxxxx XxXxxx |
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Name: |
Xxxxx XxXxxx |
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Title: |
Authorized Signatory |
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Address for notice:
The Bank of Tokyo-Mitsubishi UFJ, Ltd.
Investment Banking Division for the Americas
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxx
Tel. (000) 000-0000
Fax: (000) 000-0000
Email: xxxxx@xx.xxxx.xx
Commitment: $145,000,000
Scheduled Facility Termination Date: April 28, 2011
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S-8
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Amended and Restated
Receivables Purchase Agreement
(ARFC) |
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WORKING CAPITAL MANAGEMENT CO., LP, as
Uncommitted Purchaser and as Related Committed
Purchaser for Working Capital Management Co., LP
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By: |
/s/
Shinichi Nochiide |
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Name: |
Shinichi Nochiide |
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Title: |
Attorney-in-Fact |
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Address for notice:
Working Capital Management Co., LP
c/o Mizuho Corporate Bank, Ltd.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Conduit Management Group
Commitment: $85,000,000
Scheduled Facility Termination Date: April 28, 2011
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MIZUHO CORPORATE BANK, LTD., as Purchaser
Agent for Working Capital Management Co., LP
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By: |
/s/
Xxxxxxx Xxxx |
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Name: |
Xxxxxxx Xxxx |
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Title: |
Authorized Signatory |
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Address for notice:
Mizuho Corporate Bank, Ltd.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Finance Division
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S-9
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Amended and Restated
Receivables Purchase Agreement
(ARFC) |
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ACKNOWLEDGED AND AGREED:
AMERISOURCEBERGEN CORPORATION, as Performance
Guarantor
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By: |
/s/
X. X. Xxxxx |
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Name: |
X. X. Xxxxx |
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Title: |
Vice President and Corporate Treasurer |
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S-10
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Amended and Restated
Receivables Purchase Agreement
(ARFC) |
EXHIBIT I
DEFINITIONS
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):
“Accordion Confirmation” has the meaning set forth in Section 1.1(b)(vi).
“
Accordion Group Commitment” means with respect to any Purchaser Group, the aggregate
amount of any increase in such Purchaser Group’s Group Commitment pursuant to Section
1.1(b) consented to by the Purchaser Agent on behalf of the Purchasers in such Purchaser Group.
“Accordion Invested Amount”
means, with respect to any Purchaser and its related Invested
Amount, the portion, if any, of such Invested Amount being funded or maintained by such Purchaser
under its Purchaser Group’s Accordion Group Commitment.
“Accordion Period” has the meaning set forth in Section 1.1(b).
“
Accordion Purchase Limit” means the aggregate of the amount of any increase to the
Purchase Limit pursuant to Section 1.1(b) consented to by the Increasing Purchaser Groups
(and as such amount may be decreased in connection with any Exiting Purchaser); provided,
that the Accordion Purchase Limit shall in no event exceed $250,000,000 without the consent of all
Purchaser Agents.
“Accordion
Ratable Share” means, for each Purchaser Group (other than those comprised
of Exiting Purchasers), such Purchaser Group’s Accordion Group Commitment divided by the aggregate
Accordion Group Commitments of all Purchaser Groups (other than those comprised of Exiting
Purchasers).
“Account Disclosure Letter” means that certain letter from the Seller and the Servicer to the
Administrator and each Purchaser Agent, setting forth each Lock-Box and Collection Account to which
Collections are remitted.
“Adjusted Dilution Ratio” means, at any time, the rolling average of the Dilution Ratio for
the 12 Calculation Periods then most recently ended.
“Administrator” has the meaning set forth in the preamble to this Agreement.
“Affiliate” shall mean, with respect to a Person, any other Person, which directly or
indirectly controls, is controlled by or is under common control with, such Person. The term
“control” means the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
“Aggregate Invested Amount” means, on any date of determination, the aggregate Invested Amount
of all Receivable Interests of all Purchasers outstanding on such date.
I-1
“Aggregate Reduction” has the meaning specified in Section 1.3.
“Aggregate Unpaids” means, at any time, an amount equal to the sum of (i) the Aggregate
Invested Amount, plus (ii) all Recourse Obligations (whether due or accrued) at such time.
“Agreement” means this Agreement, as it may be amended, restated, supplemented or otherwise
modified and in effect from time to time.
“Alternate Base Rate” means, for any day for any Purchaser (a) the rate per annum equal to (i)
two percent (2.00%) above the LIBO Rate or (ii) if the LIBO Rate is not available in accordance
with Section 4.4, the greater of (x) the Prime Rate and (y) one-half of one percent (0.50%)
above the Federal Funds Effective Rate or (b) any other rate designated as the “Alternate Base
Rate” for such Purchaser in an Assumption Agreement or Transfer Supplement pursuant to which such
Purchaser becomes a party (as a Purchaser) to the Agreement, or any other written agreement among
such Purchaser to the Seller, the Servicer, the related Purchaser Agent and the Administrator from
time to time. For purposes of determining the Alternate Base Rate for any day, changes in the
Prime Rate or the Federal Funds Effective Rate shall be effective on the date of each such change.
“Amortization Date” means the earliest to occur of (i) the day on which any of the conditions
precedent set forth in Section 6.2 are not satisfied, (ii) the Business Day immediately
prior to the occurrence of an Event of Bankruptcy with respect to any Seller Party, (iii) the
Business Day specified in a written notice from the Administrator following the occurrence of any
other Amortization Event, and (iv) the date which is 30 days after the Administrator’s receipt of
written notice from Seller that it wishes to terminate the facility evidenced by this Agreement.
“Amortization Event” has the meaning specified in Article IX.
“Applicable Originator” shall mean the Originator which generated a specific Receivable (or
Receivables).
“Approved Fund” means any Person (other than a natural person) that is engaged in making,
purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary
course of its business and that is administered or managed by a Purchaser, an Affiliate of a
Purchaser or an entity or an Affiliate of an entity that administers or manages a Purchaser.
“Assumption Agreement” means an agreement substantially in the form set forth in Exhibit
VII to the Agreement.
“Authorized Officer” means, with respect to any Person, its president, corporate controller,
treasurer or chief financial officer.
“Available Commitment” means, with respect to each Related Committed Purchaser the excess, if
any, of such Related Committed Purchaser’s Commitment over the amount funded as of such date by
such Related Committed Purchaser with respect to outstanding principal of the
I-2
Receivable Interests under the Liquidity Agreement for the Conduit Purchaser, if any, in the
related Purchaser Group.
“Bank Funding” means the funding of a Receivable Interest hereunder by any Purchaser other
than through the issuance of Commercial Paper and that is not a Liquidity Funding.
“Bank of America” means Bank of America, National Association, in its individual capacity and
its successors.
“Bank Rate” means, with respect to each Receivable Interest that is funded through a Bank
Funding, (a) the LIBO Rate or (b) if the LIBO Rate is not available in accordance with Section
4.4, the Alternate Base Rate.
“Bank Rate Funding” means a Bank Funding or a Liquidity Funding.
“Broken Funding Costs” means for any Receivable Interest which: (i) has its Invested Amount
reduced (I) if funded with Commercial Paper, without compliance by Seller with the notice
requirements hereunder or (II) if funded by reference to (x) the Yield Rate and based upon the LIBO
Rate, on any date other than the Settlement Date or (ii) does not become subject to an Aggregate
Reduction following the delivery of any Reduction Notice or (iii) is assigned by any Conduit
Purchaser to the Liquidity Providers under the related Liquidity Agreement or terminated prior to
the date on which it was originally scheduled to end; an amount equal to the excess, if any, of (A)
the CP Costs or Yield (as applicable) that would have accrued during the remainder of the Interest
Periods or the tranche periods for Commercial Paper determined by the applicable Purchaser Agent to
relate to such Receivable Interest (as applicable) subsequent to the date of such reduction,
assignment or termination (or in respect of clause (ii) above, the date such Aggregate
Reduction was designated to occur pursuant to the Reduction Notice) of the Invested Amount of such
Receivable Interest if such reduction, assignment or termination had not occurred or such Reduction
Notice had not been delivered, over (B) the sum of (x) to the extent all or a portion of such
Invested Amount is allocated to another Receivable Interest, the amount of CP Costs or Yield
actually accrued during the remainder of such period on such Invested Amount for the new Receivable
Interest, and (y) to the extent such Invested Amount is not allocated to another Receivable
Interest, the income, if any, actually received during the remainder of such period by the holder
of such Receivable Interest from investing the portion of such Invested Amount not so allocated.
In the event that the amount referred to in clause (B) exceeds the amount referred to in clause
(A), the relevant Purchaser or Purchasers agree to pay to Seller the amount of such excess (net
of any amounts due to such Purchasers). All Broken Funding Costs shall be due and payable
hereunder upon written demand.
“Business Day” means any day on which banks are not authorized or required to close in New
York, New York, Philadelphia, Pennsylvania or Atlanta, Georgia, and The Depository Trust Company of
New York is open for business, and, if the applicable Business Day relates to any computation or
payment to be made with respect to the Yield Rate and based upon the LIBO Rate, any day on which
dealings in dollar deposits are carried on in the London interbank market.
“Calculation Period” means a calendar month.
I-3
“Capitalized Lease” of a Person shall mean any lease of property by such Person as lessee
which would be capitalized on a balance sheet of such Person prepared in accordance with GAAP.
“Change of Control” means the acquisition by any Person, or two or more Persons acting in
concert, of beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934) of 30% or more of the outstanding shares of
voting stock of the Performance Guarantor.
“Closing Date” has the meaning set forth in Section 6.1.
“Collection Account” means each concentration account, depositary account, lock-box account or
similar account in which any Collections are collected or deposited and which is listed on
Exhibit I to the Account Disclosure Letter.
“Collection Account Agreement” means an agreement substantially in the form of Exhibit
V among Servicer, Seller, the Administrator and a Collection Bank and, if applicable, an
Originator.
“Collection Bank” means, at any time, any of the banks holding one or more Collection
Accounts.
“Collection Notice” means a notice, in substantially the form of Annex A to
Exhibit V, from the Administrator to a Collection Bank.
“Collections” means, with respect to any Receivable, all cash collections and other cash
proceeds in respect of such Receivable, including, without limitation, all Finance Charges or other
related amounts accruing in respect thereof and all cash proceeds of Related Security with respect
to such Receivable.
“Commercial Paper” means, with respect to any Conduit Purchaser, (a) promissory notes issued
by such Conduit Purchaser in the commercial paper market or (b) on any day, any short-term notes or
any other form of debt issued by or on behalf of such Conduit Purchaser in the ordinary course of
its financing business or obligations pursuant to interest rate basis swaps entered into in
connection with the issuance of such short-term notes.
“Commitment” means, with respect to each Related Committed Purchaser, the aggregate maximum
amount which such Purchaser is obligated to pay hereunder on account of all Purchases, as set forth
below its signature to this Agreement or in the Assumption Agreement or other agreement pursuant to
which it became a Purchaser, as such amount may be modified in connection with any subsequent
assignment pursuant to Section 12.1 or in connection with a reduction or an increase in the
Purchase Limit pursuant to Section 1.1(b) or (c) of the Agreement.
“Commitment Percentage” means, for each Related Committed Purchaser in a Purchaser
Group, such Related Committed Purchaser’s Available Commitment divided by the total of all
Available Commitments of all Related Committed Purchasers in such Purchaser Group.
“Conduit Purchasers” means each Uncommitted Purchaser that is a commercial paper
conduit.
I-4
“Consolidated Subsidiary” shall mean, at any date, for any Person, any Subsidiary or other
entity the accounts of which would be consolidated under GAAP with those of such Person in its
consolidated financial statements as of such date.
“Contingent Obligation” of a Person means any agreement, undertaking or arrangement by which
such Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds for the
payment of, or otherwise becomes or is contingently liable upon, the obligation or liability of any
other Person, or agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person against loss,
including, without limitation, any comfort letter, operating agreement, take-or-pay contract or
application for a letter of credit.
“Contract” means, with respect to any Receivable, any and all instruments, agreements,
invoices or other writings pursuant to which such Receivable arises or which evidences such
Receivable.
“CP Costs” means, for each day for any Conduit Purchaser (a) the “weighted average cost” (as
defined below) for such day related to the issuance of Commercial Paper by such Conduit Purchaser
that is allocated, in whole or in part by such Conduit Purchaser, to fund all or part of its
Purchases (and which may also be allocated in part to the funding of other assets of such Conduit
Purchaser) or (b) any other amount designated as the “CP Costs” for such Conduit Purchaser in an
Assumption Agreement or Transfer Supplement pursuant to which such Conduit Purchaser becomes a
party (as a Conduit Purchaser) to the Agreement, or any other written agreement among such Conduit
Purchaser, the Seller, the Servicer, the related Purchaser Agent and the Administrator from time to
time. As used in this definition, the “weighted average cost” shall consist of (A) the actual
interest rate (or discount) paid to purchasers of Commercial Paper issued by such Conduit
Purchaser, together with the commissions of placement agents and dealers in respect of such
Commercial Paper, to the extent such commissions are allocated, in whole or in part, to such
Commercial Paper (B) the costs associated with the issuance of such Commercial Paper, including
without limitation, issuing and paying agent fees incurred with respect to such Commercial Paper,
(C) any incremental carrying costs incurred with respect to Commercial Paper maturing on dates
other than those on which corresponding funds are received by such Conduit Purchaser under this
Agreement and (D) interest on other borrowing or funding sources by such Conduit Purchaser,
including, without limitation, (i) to fund small or odd dollar amounts that are not easily
accommodated in the commercial paper market, (ii) bridge loans, (iii) market disruption loans, (iv)
subordinate notes and (v) voluntary advance facilities. In addition to the foregoing costs, if
Seller shall request any Incremental Purchase during any period of time determined by the
applicable Purchaser Agent in its sole discretion to result in incrementally higher CP Costs
applicable to such Incremental Purchase, the Invested Amount associated with any such Incremental
Purchase shall, during such period, be deemed to be funded by such Conduit Purchaser in a special
pool (which may include capital associated with other receivable purchase facilities) for purposes
of determining such additional CP Costs applicable only to such special pool and charged each day
during such period to the Seller.
“Credit Agreement” shall mean the Credit Agreement dated as of November 14, 2006, among
AmerisourceBergen, the borrowing subsidiaries from time to time party thereto, the lenders named
therein, JPMorgan Chase Bank, N.A., as administrative agent, X.X. Xxxxxx Europe Limited, as London
Agent, and The Bank of Nova Scotia, as Canadian Agent, as in effect
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on April 30, 2009 (without giving effect to any amendment, waiver, termination, supplement or
other modification thereof thereafter unless consented to by the Required Purchaser Agents).
“Credit and Collection Policy” means, as applicable, each of the Servicer’s or the Applicable
Originator’s credit and collection policies and practices relating to Contracts and Receivables
existing on the date hereof and provided to the Administrator and each Purchaser Agent, as modified
from time to time in accordance with this Agreement.
“Credit Memo Lag Time” means, with respect to any Receivable, the greater of (a) 30 and (b)
the weighted average of the credit memo lag times in days between the date of invoice of such
Receivable and the date of issuance of a credit memo with respect to such Receivable (weighted
based on the amount of such credit memo when issued), as determined by the Servicer based upon the
results of the most recent agreed upon procedures audit, such Credit Memo Lag Time to be
recalculated by the Servicer upon each subsequent agreed upon procedures audit and effective with
the first Settlement Reporting Date following such recalculation (with the Credit Memo Lag Time as
so recalculated remaining in effect until the next Credit Memo Lag Time recalculation). On and
after delivery of the agreed upon procedures audit next completed after April 30, 2009, the “Credit
Memo Lag Time” will be calculated based upon a random sample of not less than 75 credit memos. As
of April 30, 2009, the Credit Memo Lag Time is 54.2.
“Cut-Off Date” means the last day of a Calculation Period.
“Daily Eurodollar Rate” means, on any date of determination, the rate per annum at which
Dollar deposits in immediately available funds are offered to the eurodollar office of the
Administrator two Business Days prior to such date of determination by prime banks in the interbank
eurodollar market at or about 11:00 a.m., New York City time for a thirty day period.
“Days Sales Outstanding” means, as of any day, an amount equal to the product of (x) 91,
multiplied by (y) the amount obtained by dividing (i) the aggregate Outstanding Balance of
Receivables as of the most recent Cut-Off Date, by (ii) the aggregate amount of Receivables created
during the three (3) Calculation Periods including and immediately preceding such Cut-Off Date.
“Deemed Collections” means Collections deemed received by Seller under Section 1.4(a).
“Default Horizon Ratio” means, as of any Cut-Off Date, the ratio (expressed as a decimal)
computed by dividing (i) the aggregate amount of Receivables originated by the Originators during
the four Calculation Periods ending on such Cut-Off Date, by (ii) the Net Pool Balance as of such
Cut-off Date.
“Default Rate” means a rate per annum equal to the sum of (a) the greater of (i) the Prime
Rate and (ii) one-half of one percent (0.50%) above the Federal Funds Effective Rate and (b) 2.00%.
“Default Ratio” means, as of any Cut-Off Date, the ratio (expressed as a percentage) computed
by dividing (x) the total amount of Receivables which became Defaulted Receivables during the
Calculation Period that includes such Cut-Off Date, by (y) the aggregate amount of
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receivables originated by the Originators during the Calculation Period occurring five months
prior to the Calculation Period ending on such Cut-Off Date.
“Defaulted Receivable” means a Receivable (without duplication): (i) as to which the Obligor
thereof has suffered an Event of Bankruptcy; (ii) which, consistent with the Credit and Collection
Policy, should be written off Seller’s books as uncollectible; or (iii) as to which any payment, or
part thereof, remains unpaid for 121 days or more from the original due date for such payment
(determined without regard to any extension of the due date pursuant to Section 8.2(d)).
The Outstanding Balance of any Defaulted Receivable shall be determined without regard to any
credit memos or credit balances.
“Defaulting Purchaser” means (i) any Related Committed Purchaser that has failed to make any
Incremental Purchase required to be made by it hereunder pursuant to Section 1.2 within two
Business Days of the date required to be made by it hereunder or (ii) any Conduit Purchaser whose
Commercial Paper has a short term unsecured debt rating of less than A-1 by S&P or P-1 by Moody’s.
“Defaulting Purchaser Group” means, for each Defaulting Purchaser, such Defaulting Purchaser,
the other Purchasers in such Defaulting Purchaser’s Purchaser Group and its related Purchaser
Agent.
“Delinquency Ratio” means, at any time, a percentage equal to (i) the aggregate Outstanding
Balance of all Receivables that were Delinquent Receivables at such time divided by (ii) the
aggregate Outstanding Balance of all Receivables at such time.
“Delinquent Receivable” means a Receivable as to which any payment, or part thereof, remains
unpaid for 61-120 days from the original due date for such payment (determined without regard to
any extension of the due date pursuant to Section 8.2(d)). The Outstanding Balance of any
Delinquent Receivable shall be determined without regard to any credit memos or credit balances.
“Demand Advance” means any advance made by Seller to ABDC at any time while it is acting as
the Servicer, which advance (a) is payable upon demand, (b) is not evidenced by an instrument,
chattel paper or a certificated security, (c) bears interest at a market rate determined by Seller
and the Servicer from time to time, (d) is not subordinated to any other Indebtedness or obligation
of the Servicer, and (e) may not be offset by ABDC against amounts due and owing from Seller to it
under its Subordinated Note; provided that no Demand Advance may be made after the Final Facility
Termination Date or on any date prior to the Final Facility Termination Date on which an
Amortization Event or an Unmatured Amortization Event exists and is continuing.
“Dilution” means the amount of any reduction or cancellation of the Outstanding Balance of a
Receivable as described in Section 1.4(a).
“Dilution Horizon Ratio” means, as of any Cut-Off Date, a ratio (expressed as a decimal),
equal to the product of (a) the ratio computed by dividing (i) the Credit Memo Lag Time as of such
Cut-Off Date, by (ii) 30 and (b) the ratio computed by dividing (i) the aggregate amount of
receivables originated by the Originators during the most recent Calculation Period ending on such
Cut-Off Date, by (ii) the Net Pool Balance as of such Cut-Off Date.
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“Dilution Ratio” means, as of any Cut-Off Date, a ratio (expressed as a percentage), computed
by dividing (i) the total amount of decreases in Outstanding Balances due to Dilutions during the
Calculation Period ending on such Cut-Off Date, by (ii) the aggregate sales generated by the
Originators during the Calculation Period prior to the Calculation Period ending on such Cut-Off
Date.
“Dilution Reserve” means, for any Calculation Period, the product (expressed as a percentage)
of:
(a) the sum of (i) 2.25 times the Adjusted Dilution Ratio as of the immediately
preceding Cut-Off Date, plus (ii) the Dilution Volatility Component as of the immediately
preceding Cut-Off Date, times
(b) the Dilution Horizon Ratio as of the immediately preceding Cut-Off Date.
“Dilution Volatility Component” means the product (expressed as a percentage) of (i) the
difference between (a) the highest Dilution Ratio over the past 12 Calculation Periods and (b) the
Adjusted Dilution Ratio, and (ii) a fraction, the numerator of which is equal to the amount
calculated in (i)(a) of this definition and the denominator of which is equal to the amount
calculated in (i)(b) of this definition.
“Dispute” shall mean any dispute, deduction, claim, offset, defense, counterclaim, set-off or
obligation of any kind, contingent or otherwise, relating to a Receivable, including, without
limitation, any dispute relating to goods or services already paid for.
“DOD Receivable” means a Receivable the Obligor of which is the United States Department of
Defense.
“Dollar” and “$” shall mean lawful currency of the United States of America.
“Eligible Receivable” means, at any time, a Receivable:
(a) which complies with all applicable Laws and other legal requirements, whether
Federal, state or local, including, without limitation, to the extent applicable, usury
laws, the Federal Consumer Credit Protection Act, the Fair Credit Billing Act, the Federal
Truth in Lending Act, and Regulation Z of the Board of Governors of the Federal Reserve
System;
(b) which constitutes an “account”, “chattel paper” or a “general intangible” as
defined in the UCC as in effect in the State of New York and the jurisdiction whose Law
governs the perfection of the Administrator’s (for the benefit of the Secured Parties)
ownership and security interest therein, and is not evidenced by an “instrument,” as defined
in the UCC as so in effect;
(c) which was originated in connection with a sale of goods or the provision of
services by the Applicable Originator in the ordinary course of its business to an Obligor
who was approved by the Applicable Originator in accordance with its Credit and Collection
Policy, and which Obligor is not an Affiliate of the Seller or the Applicable Originator;
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(d) which (i) arises from a Contract and has been billed, or in respect of which the
related Obligor is otherwise liable, in accordance with the terms of such Contract and (ii)
arises from a Contract that (A) does not require the Obligor under such Contract to consent
to the transfer, sale or assignment of the rights and duties of the Applicable Originator
or the Seller under such Contract and (B) does not contain any provision that restricts the
ability of the Administrator, any Purchaser Agent or any Purchaser to exercise its rights
under this Agreement (or the Receivables Sale Agreement), including, without limitation, the
right to review the Contract;
(e) which is genuine and constitutes a legal, valid, binding and irrevocable payment
obligation of the related Obligor, enforceable in accordance with its terms, and which is
not subject to any Disputes or other offsets, counterclaims, defenses or contra accounts;
(f) which provides for payment in Dollars and is to be paid in the United States by the
related Obligor;
(g) which directs payment thereof to be sent to a Lock-Box or the Collection Account;
(h) which has not been repurchased by any Originator pursuant to the repurchase
provisions of the Receivables Sale Agreement;
(i) which is not a Defaulted Receivable or Delinquent Receivable;
(j) which has a related Obligor who (i) is not more than 60 days past due on greater
than 35% of the aggregate Outstanding Balance of such Receivable and other receivables
generated by the Applicable Originator and (ii) is not the subject of a current Event of
Bankruptcy and has not been the subject of an Event of Bankruptcy during the prior 24 months
unless otherwise agreed to in writing by the Administrator and the Required Purchaser
Agents;
(k) which has a related Obligor that is a Person domiciled in the United States of
America;
(l) which was not originated in or subject to the Laws of a jurisdiction whose Laws
would make such Receivable, the related Contract or the sale of the Receivable Interests to
the Purchasers, or the pledge of the security interest to the Administrator (for the benefit
of the Secured Parties), hereunder unlawful, invalid or unenforceable and which is not
subject to any legal limitation on transfer;
(m) which is owned solely by the Seller free and clear of all Liens, except for the
Lien arising in connection with this Agreement;
(n) for which all goods, services, and other products and transactions in connection
with such Receivable have been finally performed or delivered to and accepted by the Obligor
without Dispute;
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(o) which does not provide the Obligor with the right to obtain any cash advance
thereunder;
(p) which has not been selected in a manner materially adverse to any Purchaser;
(q) which by its terms has Invoice Payment Terms of up to 30 days; provided, that
Receivables due from Walgreen Co. may have Invoice Payment Terms of up to 34 days (“Walgreen
Extended Term Receivables”); provided, further, that an amount not to exceed 5% of aggregate
of all outstanding Receivables, excluding Walgreen Extended Term Receivables, may have
Invoice Payment Terms of between 31 and 60 days; and provided, further, that an amount not
to exceed 5% of aggregate of all outstanding Receivables may have Invoice Payment Terms of
between 61 and 90 days;
(r) which is an eligible asset within the meaning of Rule 3a-7 promulgated under the
Investment Company Act of 1940, as amended from time to time;
(s) which is not of a type that has been disqualified by S&P or Moody’s for any other
reason;
(t) which is not payable in installments (except for Receivables related to opening
orders);
(u) which is not evidenced by a promissory note;
(v) which has terms which have not been modified, impaired, waived, altered, extended
or renegotiated since the initial sale or provision of service to an Obligor in any way not
provided for in this Agreement; and
(w) which is not a DOD Receivable.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to
time, and any rule or regulation issued thereunder.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common
control with Performance Guarantor or ABDC within the meaning of Section 414(b) or (c) of the
Internal Revenue Code (and Sections 414(m) and (o) of the Internal Revenue Code for purposes of
provisions relating to Section 412 of the Internal Revenue Code).
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a complete or
partial withdrawal from a Multiemployer Plan that would result in liability to Performance
Guarantor or any ERISA Affiliate, or the receipt or delivery by Performance Guarantor or any ERISA
Affiliate of any notice with respect to any Multiemployer Plan concerning the imposition of
liability as a result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA; (c) a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA; (d) the filing pursuant to Section 412(c) of the Internal Revenue Code or
Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect
to any Pension Plan; (e) the PBGC or a plan administrator shall, or
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shall indicate its intention in writing to the Seller, Performance Guarantor or any ERISA Affiliate to, terminate any
Pension Plan or appoint a trustee to administer any Pension Plan; (f) Performance Guarantor or any
ERISA Affiliate incurs liability under Title IV of ERISA with respect to the termination of any
Pension Plan; or (g) a failure by any Pension Plan to satisfy the minimum funding standards (as
defined in Section 412 of the Internal Revenue Code or Section 302 of ERISA) applicable to such
Pension Plan, in each instance, whether or not waived.
“Event of Bankruptcy” shall be deemed to have occurred with respect to a Person if either:
(a) a case or other proceeding shall be commenced, without the application or consent
of such Person, in any court, seeking the liquidation, reorganization, debt arrangement,
dissolution, winding up, or composition or readjustment of debts of such Person, the
appointment of a trustee, receiver, custodian, liquidator, assignee, sequestrator or the
like for such Person or all or substantially all of its assets, or any similar action with
respect to such Person under any law relating to bankruptcy, insolvency, reorganization,
winding up or composition or adjustment of debts, and such case or proceeding shall continue
undismissed, or unstayed and in effect, for a period of 60 consecutive days; or an order for
relief in respect of such Person shall be entered in an involuntary case under the federal
bankruptcy laws or other similar laws now or hereafter in effect; or
(b) such Person shall commence a voluntary case or other proceeding under any
applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other
similar law now or hereafter in effect, or shall consent to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee (other than a trustee under a deed
of trust, indenture or similar instrument), custodian, sequestrator (or other similar
official) for, such Person or for any substantial part of its property, or shall make any
general assignment for the benefit of creditors, or shall be adjudicated insolvent, or admit
in writing its inability to pay its debts generally as they become due, or, if a corporation
or similar entity, its board of directors shall vote to implement any of the foregoing.
“Excepted Persons” has the meaning set forth in Section 13.4.
“Exiting Purchaser” means each Purchaser in a Purchaser Group for which the Facility
Termination Date has occurred (it being understood that if an Exiting Purchaser has multiple
Scheduled Facility Termination Dates for its Commitment, then such Purchaser shall only be
considered an Exiting Purchaser to the extent its Invested Amount exceeds the portion of its
Commitment with respect to which the Scheduled Facility Termination Date has not yet occurred).
“Exiting Purchaser Group” has the meaning set forth in Section 10.4(c).
“Exiting Purchaser Group Payoff Amount” has the meaning set forth in Section 10.4(c).
“External Rating” has the meaning set forth in Section 10.4(a).
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“Facility Account” means that certain account of the Seller maintained at X.X. Xxxxxx Chase
Bank and as set forth in that certain letter dated as of April 30, 2009 from the Seller to the
Purchaser Agents.
“Facility Termination Date” means, for any Group Commitment (or portion thereof), the earliest
to occur of: (a) the Scheduled Facility Termination Date for such Group Commitment (or portion
thereof), (b) the date determined pursuant to Section 1.1(d)(ii), (c) the date determined
pursuant to Section 9.2, (d) the Amortization Date, (e) with respect to any Purchaser
Group, if the facility is unrated or assigned a rating less than the Minimum Required Rating as and
when required in accordance with Section 10.4 after giving effect to any applicable grace
periods set forth therein, the date such Purchaser Group’s Purchaser Agent, in its sole discretion,
declares, upon at least ten (10) Business Days’ notice to the Seller, as the “Facility Termination
Date” for such Purchaser Group and (f) the date the Purchase Limit reduces to zero pursuant to
Section 1.1(c) of this Agreement.
“Federal Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as
amended and any successor statute thereto.
“Federal Funds Effective Rate” means, for any period for any Purchaser, a fluctuating interest
rate per annum for each day during such period equal to (i) the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published for such day (or, if such day is not a Business Day, for the preceding
Business Day) by the Federal Reserve Bank of New York in the Composite Closing Quotations for U.S.
Government Securities; or (ii) if such rate is not so published for any day which is a Business
Day, the average of the quotations at approximately 11:30 a.m. (New York time) for such day on such
transactions received by the related Purchaser Agent from three federal funds brokers of recognized
standing selected by it.
“Fee Letter” means each fee letter with respect to this Agreement among Seller, ABDC and the
applicable Purchaser Agent, as it may be amended, restated or otherwise modified and in effect from
time to time.
“Final Facility Termination Date” means the latest Facility Termination Date to occur for all
the Purchaser Groups.
“Final Payout Date” means the date on which all Aggregate Unpaids have been paid in full and
the Purchase Limit has been reduced to zero.
“Finance Charges” means, with respect to a Contract, any finance, interest, late payment
charges or similar charges owing by an Obligor pursuant to such Contract.
“Fiscal Year” shall mean each year ending September 30, which is the fiscal year of the Seller
and the Servicer for accounting purposes.
“Funding Agreement” means (i) this Agreement, (ii) the Liquidity Agreement and (iii) any other
agreement or instrument executed by any Funding Source with or for the benefit of any Conduit
Purchaser.
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“Funding Source” means (i) the Administrator, any Purchaser Agent or any Liquidity Provider or
(ii) any insurance company, bank or other funding entity providing liquidity, credit enhancement or
back-up purchase support or facilities to any Conduit Purchaser.
“GAAP” means generally accepted accounting principles in effect in the United States of
America as of the date of this Agreement.
“Government Receivable Excess” means, the amount by which the aggregate Outstanding Balance
of all Government Receivables exceeds an amount equal to 10.00% of the Outstanding Balance of all
Eligible Receivables.
“Government Receivables” shall mean, at the time, any Receivables for which the related
Obligor is the United States of America, any State or local government or any Federal or state
agency or instrumentality or political subdivision thereof.
“Group Commitment” means with respect to any Purchaser Group the aggregate of the Commitments
of each Purchaser within such Purchaser Group.
“Group Invested Amount” means with respect to any Purchaser Group, an amount equal to the
aggregate Invested Amount of all the Purchasers within such Purchaser Group.
“Guarantee” shall mean, as applied to any Indebtedness, (i) a guarantee (other than by
endorsement for collection in the ordinary course of business), direct or indirect, in any manner,
of any part or all of such Indebtedness or (ii) an agreement, direct or indirect, contingent or
otherwise, providing assurance of the payment or performance (or payment of damages in the event of
non-performance) of any part or all of such Indebtedness, including, without limiting the
foregoing, the payment of amounts drawn down by letters of credit. The amount of any Guarantee
shall be deemed to be the maximum amount of the Indebtedness guaranteed for which the guarantor
could be held liable under such Guarantee.
“Increasing Purchaser Group” has the meaning set forth in Section 1.1(b).
“Incremental Purchase” means a purchase of one or more Receivable Interests which increases
the total outstanding Aggregate Invested Amount hereunder.
“Indebtedness” of any Person shall mean, without duplication, (i) all obligations of such
Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures,
notes or similar instruments, or upon which interest payments are customarily made, (iii) all
obligations of such Person under conditional sale or other title retention agreements relating to
property purchased by such Person (other than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of business), (iv) all obligations of
such Person issued or assumed as the deferred purchase price of property or services purchased by
such Person (other than trade debt incurred in the ordinary course of business and due within
twelve months of the incurrence thereof) which would appear as liabilities on a balance sheet of
such Person, (v) all obligations of such Person under take-or-pay or similar arrangements or under
commodities agreements, (vi) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or
payable out of the proceeds of production from, property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed, provided that for
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purposes hereof the
amount of such Indebtedness shall be limited to the greater of (A) the amount of such Indebtedness
as to which there is recourse to such Person and (B) the fair market value of the property which is
subject to the Lien, (vii) all Guarantees of such Person, (viii) the principal portion of all
obligations of such Person under Capitalized Leases, (ix) all obligations of such Person in respect of interest rate protection agreements, foreign currency exchange
agreements, commodity purchase or option agreements or other interest or exchange rate or commodity
price hedging agreements, (x) the maximum amount of all standby letters of credit issued or
bankers’ acceptances facilities created for the account of such Person and, without duplication,
all drafts drawn thereunder (to the extent unreimbursed), (xi) all preferred stock issued by such
Person and required by the terms thereof to be redeemed, or for which mandatory sinking fund
payments are due by a fixed date, (xii) the principal balance outstanding under any securitization
transaction and (xiii) the principal balance outstanding under any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet financing product to which
such Person is a party, where such transaction is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease in accordance with GAAP. The Indebtedness of any
Person shall include the Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer, but only to the extent to which there is recourse to such
Person for payment of such Indebtedness.
“Indemnified Amounts” has the meaning specified in Section 10.1.
“Indemnified Party” has the meaning specified in Section 10.1.
“Independent Director” shall mean a member of the Board of Directors of Seller who is not at
such time, and has not been at any time during the preceding five (5) years: (A) a director,
officer, employee or affiliate of Performance Guarantor, any Originator or any of their respective
Subsidiaries or Affiliates (other than Seller), or (B) the beneficial owner (at the time of such
individual’s appointment as an Independent Director or at any time thereafter while serving as an
Independent Director) of any of the outstanding common shares of Seller, any Originator, or any of
their respective Subsidiaries or Affiliates, having general voting rights.
“Interest Period” means with respect to any Receivable Interest funded through a Bank Rate
Funding:
(a) the period commencing on the date of the initial funding of such Receivable
Interest through a Bank Rate Funding and including on, but excluding, the Business Day
immediately preceding the next following Settlement Date; and
(b) thereafter, each period commencing on, and including, the Business Day immediately
preceding a Settlement Date and ending on, but excluding, the Business Day immediately
preceding the next following Settlement Date.
“Internal Revenue Code” shall mean the Internal Revenue Code of 1986, as amended from time to
time and any successor thereto, and the regulations promulgated and rulings issued thereunder.
“Invested Amount” of any Receivable Interest means, at any time, (A) the Purchase Price of
such Receivable Interest paid by the Purchasers, minus (B) the sum of the aggregate amount of
Collections and other payments received by the applicable Purchaser Agent which in
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each case are
applied to reduce such Invested Amount in accordance with the terms and conditions of this
Agreement; provided that such Invested Amount shall be restored (in accordance with Section
2.5) in the amount of any Collections or other payments so received and applied if at any time the distribution of such Collections or payments are rescinded, returned or
refunded for any reason.
“Invoice Payment Terms” means, with respect to any Receivable, the number of days following
the date of the related original invoice by which such Receivable is required to be paid in full,
as set forth in such original invoice.
“Law” shall mean any law (including common law), constitution, statute, treaty, regulation,
rule, ordinance, order, injunction, writ, decree or award of any Official Body.
“LIBO Rate” means, on any date of determination:
(a) in the case of Xxxxx Fargo, the LIBOR Market Index Rate;
(b) in the case of any Purchaser other than Xxxxx Fargo, a rate per annum (rounded
upwards, if necessary, to the nearest 1/100th of 1%) determined by dividing (x)
the Daily Eurodollar Rate for such date of determination, by (y) 1 minus the Reserve
Percentage for such date of determination; and
(c) in the case of any Purchaser, any other rate designated as the “LIBO Rate” for such
Purchaser in an Assumption Agreement or Transfer Supplement pursuant to which such Purchaser
becomes a party (as a Purchaser) to the Agreement, or any other written agreement among such
Purchaser to the Seller, the Servicer, the related Purchaser Agent and the Administrator
from time to time.
The LIBO Rate shall be rounded, if necessary, to the next higher 1/16 of 1%. The “Reserve
Percentage” means, with respect to any date of determination, the then maximum reserve percentage
(expressed as a decimal, rounded upward to the nearest 1/100th of 1%) prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for determining the maximum
reserve requirements (including without limitation, supplemental, marginal, and emergency reserve
requirements) applicable to eurocurrency funding (currently referred to as “Eurocurrency
Liabilities”) pursuant to Regulation D for a thirty day period. The LIBO Rate shall be adjusted
with respect to any Receivable Interest funded at the Alternate Base Rate and based upon the LIBO
Rate that is outstanding on the effective date of any change in the Reserve Percentage as of such
effective date.
“LIBOR Market Index Rate” means, on any date of determination, the three-month Eurodollar rate
for Dollar deposits as reported on the Reuters Screen LIBOR01 Page or any other page that may
replace such page from time to time for the purpose of displaying offered rates of leading banks
for London interbank deposits in Dollars, as of 11:00 a.m. (London time) on such date, or if such
day is not a Business Day, then the immediately preceding Business Day (or if not so reported, then
as determined by the Administrator or applicable Purchaser Agent from another recognized source for
interbank quotation), in each case, changing when and as such rate changes.
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“Lien” means, in respect of the property of any Person, any ownership interest of any other
Person, any mortgage, deed of trust, hypothecation, pledge, lien, security interest, filing of any
financing statement, charge or other encumbrance or security arrangement of any nature whatsoever,
including, without limitation, any conditional sale or title retention arrangement, and
any assignment, deposit arrangement, consignment or lease intended as, or having the effect
of, security.
“Liquidity Agent” means each of the banks acting as agent for the various Liquidity Providers
under each Liquidity Agreement.
“Liquidity Agreement” means any agreement entered into in connection with this Agreement
pursuant to which a Liquidity Provider agrees to make purchases or advances to, or purchase assets
from, any Conduit Purchaser in order to provide liquidity for such Conduit Purchaser’s Purchases.
“Liquidity Commitment” means, as to each Liquidity Provider, its commitment under the
Liquidity Agreement (which generally will equal 102% of its Commitment hereunder).
“Liquidity Funding” means a purchase by any Liquidity Provider pursuant to its Liquidity
Commitment (or by any other Funding Source pursuant to its commitment under a bridge loan agreement
or other voluntary advance facility) of all or any portion of, or any undivided interest in, a
Receivable Interest.
“Liquidity Provider” means each bank or other financial institution that provides liquidity
support to any Conduit Purchaser pursuant to the terms of a Liquidity Agreement.
“Location” shall mean, with respect to the Seller, any Originator or the Servicer, the place
where the Seller, such Originator or the Servicer, as the case may be, is “located” (within the
meaning of Section 9-307, or any analogous provision, of the UCC, in effect in the jurisdiction
whose Law governs the perfection of the Administrator’s (for the benefit of the Secured Parties)
interests in any Purchased Assets).
“Lock-Box” means each locked postal box with respect to which a bank who has executed a
Collection Account Agreement has been granted exclusive access for the purpose of retrieving and
processing payments made on the Receivables and which is listed on Exhibit I to the Account
Disclosure Letter.
“Loss Reserve” means, for any Calculation Period, the product (expressed as a percentage) of
(a) 2.25, times (b) the highest three-month rolling average Default Ratio during the 12 Calculation
Periods ending on the immediately preceding Cut-Off Date, times (c) the Default Horizon Ratio as of
the immediately preceding Cut-Off Date.
“Minimum Required Rating” has the meaning set forth in Section 10.4(a).
“Moody’s” means Xxxxx’x Investors Service, Inc.
“Multiemployer Plan” means a “multiemployer plan”, within the meaning of Section 4001 (a) (3)
of ERISA, to which Performance Guarantor or any ERISA Affiliate makes, is
I-16
making, or is obligated
to make contributions or, during the preceding three calendar years, has made, or been obligated to
make, contributions.
“Net Pool Balance” means, at any time, the aggregate Outstanding Balance of all Eligible
Receivables at such time reduced by (i) the aggregate amount by which the Outstanding Balance of all Eligible Receivables of each Obligor and its Affiliates exceeds the Obligor
Concentration Limit for such Obligor, (ii) the Rebate Reserve and (iii) the Government Receivable
Excess.
“Non-Accordion Purchase Limit” means the Purchase Limit without giving effect to any increases
or decreases pursuant to Section 1.1(b) of the Agreement.
“Obligor” shall mean, for any Receivable, each and every Person who purchased goods or
services on credit under a Contract and who is obligated to make payments to an Originator or the
Seller as assignee thereof pursuant to such Contract.
“Obligor Concentration Limit” means, at any time, in relation to the aggregate Outstanding
Balance of Receivables owed by any single Obligor and its Affiliates (if any), the applicable
concentration limit shall be determined as follows for Obligors who have short term unsecured debt
ratings currently assigned to them by S&P and/or Moody’s (or in the absence thereof, the equivalent
long term unsecured senior debt ratings), the applicable concentration limit shall be determined
according to the following table:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Allowable % of |
|
S&P Rating |
|
Xxxxx’x Rating |
|
|
Eligible Receivables |
|
A-1 |
|
P-1 |
|
|
|
16.00 |
% |
A-2 |
|
P-2 |
|
|
|
8.00 |
% |
A-3 |
|
P-3 |
|
|
|
5.00 |
% |
Below A-3 or not rated by either S&P or Moody’s |
|
Below P-3 or not rated by either S&P or Moody’s |
|
|
|
3.00 |
% |
; provided that, (a) if any Obligor is rated by both S&P and Moody’s and has a split rating, the
applicable rating will be the lower of the two, (b) if any Obligor is not rated by either S&P or
Moody’s, the applicable Obligor Concentration Limit shall be the one set forth in the last line of
the table above, (c) if any Obligor is rated by only one of S&P and Moody’s, the applicable rating
will be the rating assigned to such Obligor by S&P or Moody’s, as applicable and (d) subject to
satisfaction of the Rating Agency Condition and an increase in the percentage set forth in
clause (a)(i) of the definition of “Required Reserve,” upon Seller’s request from time to
time, the Administrator and each Purchaser Agent may agree to a higher percentage of Eligible
Receivables for a particular Obligor and its Affiliates (each such higher percentage, a “Special
Concentration Limit”), it being understood that any Special Concentration Limit may be cancelled by
the Administrator or any Purchaser Agent upon not less than five (5) Business Days’ written notice
to the Seller. As of April 30, 2009, Medco Health Solutions Inc. and Xxxxxx Permanente shall have
a Special Concentration Limit of 5.75% and 4.90%, respectively.
I-17
“Official Body” shall mean any government or political subdivision or any agency, authority,
bureau, central bank, commission, department or instrumentality of either, or any court, tribunal,
grand jury or arbitrator, in each case whether foreign or domestic.
“Original Agreement” has the meaning set forth in paragraph 4 of the Preliminary
Statements.
“Originator” means each of ABDC and the other Persons, if any, party to the Receivables Sale
Agreement from time to time as a seller.
“Outstanding Balance” of any Receivable at any time means the then outstanding principal
balance thereof.
“Participant” has the meaning set forth in Section 12.1(b).
“PBGC” means the Pension Benefit Guaranty Corporation, or any successor thereto.
“Pension Plan” means a pension plan (as defined in Section 3(2) of ERISA) subject to Title IV
of ERISA which Performance Guarantor or any ERISA Affiliate of Performance Guarantor sponsors or
maintains, or to which Performance Guarantor or any of its ERISA Affiliates makes, is making, or is
obligated to make contributions, or in the case of a multiple employer plan (as described in
Section 4064(a) of ERISA) has made contributions at any time during the immediately preceding five
plan years.
“Performance Guarantor” means AmerisourceBergen.
“Performance Undertaking” means that certain Performance Undertaking, dated as of July 10,
2003 by Performance Guarantor in favor of Seller, substantially in the form of Exhibit IX,
as amended and restated on December 2, 2004, and as the same may be further amended, restated or
otherwise modified from time to time.
“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 government or any political subdivision or agency thereof.
“Prime Rate” means, for any day for any Purchaser, a rate per annum equal to the prime rate of
interest announced from time to time by the related Purchaser Agent (which is not necessarily the
lowest rate charged to any customer), changing when and as said prime rate changes.
“Proposed Reduction Date” has the meaning set forth in Section 1.3.
“Purchase” means an Incremental Purchase or a Reinvestment.
“Purchase Date” means each Business Day on which a Purchase is made hereunder.
“Purchase Limit” means, initially, $700,000,000, as such amount may be increased or reduced
pursuant to Section 1.1(b) or (c) of the Agreement or otherwise in connection with
any Exiting Purchaser or increase or decrease in the aggregate of the Commitments of each Related
I-18
Committed Purchaser. References to the unused portion of the Purchase Limit shall mean, at any
time, the Purchase Limit minus the then outstanding Aggregate Invested Amount.
“Purchase Limit Decrease Notice” has the meaning set forth in Section 1.1(b).
“Purchase Limit Increase Request” has the meaning set forth in Section 1.1(b).
“Purchase Notice” has the meaning set forth in Section 1.2.
“Purchase Price” means, with respect to any Incremental Purchase of a Receivable Interest, the
amount paid to Seller for such Receivable Interest which shall not exceed the least of (i) the
amount requested by Seller in the applicable Purchase Notice, (ii) the unused portion of the
Purchase Limit on the applicable Purchase Date and (iii) the excess, if any, of the Net Pool
Balance less the Required Reserve on the applicable Purchase Date over the aggregate outstanding
amount of Aggregate Invested Amount determined as of the date of the most recent Settlement Report,
without taking into account such proposed Incremental Purchase.
“Purchased Assets” means all of Seller’s right, title and interest, whether now owned and
existing or hereafter arising in and to all of the Receivables, the Related Security, the
Collections and all proceeds of the foregoing.
“Purchaser” means each Uncommitted Purchaser and/or each Related Committed Purchaser, as
applicable.
“Purchaser Agent” means each Person acting as agent on behalf of a Purchaser Group and
designated as a Purchaser Agent for such Purchaser Group on the signature pages to the Agreement or
any other Person who becomes a party to this Agreement as a Purchaser Agent pursuant to an
Assumption Agreement or a Transfer Supplement.
“Purchaser Group” means, for each Uncommitted Purchaser (or Purchaser Agent), such Uncommitted
Purchaser, its Related Committed Purchasers (if any) and its related Purchaser Agent (and, to the
extent applicable, its related Funding Sources and Indemnified Parties).
“Purchasers’ Portion” means, on any date of determination, the sum of the percentages
represented by the Receivable Interests of the Purchasers (other than any Exiting Purchasers).
“Ratable Share” means, for each Purchaser Group (other than those comprised of Exiting
Purchasers), such Purchaser Group’s Group Commitments (excluding any Accordion Group Commitment)
divided by the aggregate Group Commitments (excluding any Accordion Group Commitments) of all
Purchaser Groups (other than those comprised of Exiting Purchasers).
“Rating Agency Condition” means that each Conduit Purchaser has received written notice from
the rating agencies then rating its Commercial Paper that an amendment, a change or a waiver will
not result in a withdrawal or downgrade of the then current ratings of such Commercial Paper;
provided that, if the applicable Purchaser Agent notifies the Seller, the Servicer and the
Administrator that such Conduit Purchaser is not required to obtain such notice prior to the
effectiveness of such amendment, change or waiver, the “Rating Agency Condition” with respect to
such Conduit Purchaser shall mean the consent of such Purchaser Agent (which
I-19
consent shall only be
withheld if such Purchaser Agent reasonably believes that such amendment, change or waiver would
result in a withdrawal or downgrade of the then current ratings of such Commercial Paper).
“Ratings Cure” has the meaning set forth in Section 10.4(b).
“Rebate Reserve” means an amount equal to the accounting reserve for rebates on the
Receivables determined in the ordinary course of business in accordance with GAAP according to
policies consistently applied (and consistent with the Originators’ practices in effect on the date
hereof) and reported on the Settlement Report related to, or in anticipation of, rebates affecting
the Receivables.
“Receivable” means all indebtedness and other obligations owed to Seller or any Originator (at
the time it arises, and before giving effect to any transfer or conveyance under the Receivables
Sale Agreement) or in which Seller or an Originator has a security interest or other interest,
including, without limitation, any indebtedness, obligation or interest constituting an account,
chattel paper, instrument or general intangible, arising in connection with the sale of goods or
the rendering of services by an Originator, and further includes, without limitation, the
obligation to pay any Finance Charges with respect thereto. Indebtedness and other rights and
obligations arising from any one transaction, including, without limitation, indebtedness and other
rights and obligations represented by an individual invoice, shall constitute a Receivable separate
from a Receivable consisting of the indebtedness and other rights and obligations arising from any
other transaction; provided that any indebtedness, rights or obligations referred to in the
immediately preceding sentence shall be a Receivable regardless of whether the account debtor or
Seller treats such indebtedness, rights or obligations as a separate payment obligation.
“Receivable Interest” means, at any time, an undivided percentage ownership interest (computed
as set forth below) associated with a designated amount of Invested Amount, selected pursuant to
the terms and conditions hereof in (i) each Receivable arising prior to the time of the most recent
computation or recomputation of such undivided interest, (ii) all Related Security with respect to
each such Receivable, and (iii) all Collections with respect to, and other proceeds of, each such
Receivable. Each such undivided percentage interest shall equal:
|
where: |
|
|
|
|
IA |
|
= the Invested Amount of such Receivable Interest. |
|
|
AIA |
|
= the Aggregate Invested Amount. |
|
|
NPB |
|
= the Net Pool Balance. |
|
|
RR |
|
= the Required Reserve. |
Such undivided percentage ownership interest shall be initially computed on its date of purchase.
Thereafter, until the Final Facility Termination Date, each Receivable Interest shall be
I-20
automatically recomputed (or deemed to be recomputed) on each day prior to the Final Facility
Termination Date. The variable percentage represented by any Receivable Interest as computed (or
deemed recomputed) as of the close of the Business Day immediately preceding the Final Facility
Termination Date shall remain constant at all times thereafter.
“Receivables Purchase Agreement” means this Agreement.
“Receivables Sale Agreement” means that certain Receivables Sale Agreement, dated as of July
10, 2003, among each Originator and Seller, as the same may be amended, restated or otherwise
modified from time to time.
“Records” means, with respect to any Receivable, all Contracts and other documents, books,
records and other information (including, without limitation, computer programs, tapes, disks,
punch cards, data processing software and related property and rights) relating to such Receivable,
any Related Security therefor and the related Obligor.
“Recourse Obligations” has the meaning set forth in Section 2.1.
“Reduction Notice” has the meaning set forth in Section 1.3.
“Regulatory Change” means any change after the date of this Agreement in United States
(federal, state or municipal) or foreign laws, regulations (including any applicable law, rule or
regulation regarding capital adequacy) or accounting principles or the adoption or making after
such date of any interpretations, directives or requests applying to a class of banks (including
the Liquidity Providers) of or under any United States (federal, state or municipal) or foreign
laws, regulations (whether or not having the force of law) or accounting principles by any court,
governmental or monetary authority, or accounting board or authority (whether or not part of
government) charged with the establishment, interpretation or administration thereof. For the
avoidance of doubt, any interpretation of, or compliance, whether commenced prior to or after the
date hereof, by any Indemnified Party or other Purchaser with, FAS 140 or FIN 46R by the Financial
Accounting Standards Board, Statements of Financial Accounting Standards Nos. 166 and 167 and the
final rule titled Risk-Based Capital Guidelines: Capital Adequacy Guidelines; Capital Maintenance;
Regulatory Capital; Impact of Modifications to Generally Accepted Accounting Principles;
Consolidation of Asset-Backed Commercial Paper Programs; and Other Related Issues, adopted by the
United States bank regulatory agencies on December 15, 2009, or any rules or regulations
promulgated in connection therewith by any such agency or board, shall constitute a Regulatory
Change.
“Reinvestment” has the meaning set forth in Section 2.2.
“Related Committed Purchaser” means each Person listed as such (and its respective
Commitment) for each Uncommitted Purchaser as set forth on the signature pages of the Agreement or
in any Assumption Agreement or Transfer Supplement.
“Related Security” means, with respect to any Receivable:
(i) all of Seller’s interest in the inventory and goods (including returned or
repossessed inventory or goods), if any, the sale of which by an Originator gave rise to
such Receivable, and all insurance contracts with respect thereto,
I-21
(ii) all other security interests or liens and property subject thereto from time to
time, if any, purporting to secure payment of such Receivable, whether pursuant to the
Contract related to such Receivable or otherwise, together with all financing statements and
security agreements describing any collateral securing such Receivable,
(iii) all guaranties, letters of credit, 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,
(iv) all service contracts and other contracts and agreements associated with such
Receivable,
(v) all Records related to such Receivable,
(vi) all of Seller’s right, title and interest in, to and under the Receivables Sale
Agreement in respect of such Receivable and all of Seller’s right, title and interest in, to
and under the Performance Undertaking,
(vii) all of Seller’s right, title and interest in and to the Demand Advances, and
(viii) all proceeds of any of the foregoing.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA or the
regulations thereunder, other than any such event for which the 30-day notice requirement under
ERISA has been waived in regulations issued by the PBGC.
“Required Purchaser Agents” means, at any time, two or more Purchaser Agents representing
Purchasers whose Commitments aggregate more than 50% of the aggregate of the Commitments of all
Purchasers; provided that the unused Commitment of any Defaulting Purchaser shall be
excluded for purposes of making a determination of “Required Purchaser Agents”.
“Required Reserve” means, on any day during a Calculation Period, the product of (a) the sum
of (i) the greater of (1) the Required Reserve Factor Floor and (2) the sum of the Loss Reserve and
the Dilution Reserve, (ii) the Yield Reserve and (iii) the Servicing Reserve, times (b) the Net
Pool Balance as of the Cut-Off Date immediately preceding such Calculation Period.
“Required Reserve Factor Floor” means, for any Calculation Period, the sum (expressed as a
percentage) of (a) 18.75% plus (b) the product of the Adjusted Dilution Ratio and the Dilution
Horizon Ratio, in each case, as of the immediately preceding Cut-Off Date.
“Responsible Officer” shall mean, with respect to the Seller, the Servicer, any Originator or
the Performance Guarantor, the chief executive officer, president, principal financial officer or
treasurer of such Person and any other Person identified on the List of Responsible Officers
attached as Exhibit X hereto (as such list may be amended and supplemented from time to
time) and agreed to by the Administrator.
I-22
“Restricted Junior Payment” means (i) any dividend or other distribution, direct or indirect,
on account of any shares of any class of capital stock of Seller now or hereafter outstanding,
except a dividend payable solely in shares of that class of stock or in any junior class of stock
of Seller, (ii) any redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of capital stock of Seller
now or hereafter outstanding, (iii) any payment or prepayment of principal of, premium, if any, or
interest, fees or other charges on or with respect to, and any redemption, purchase, retirement,
defeasance, sinking fund or similar payment and any claim for rescission with respect to the
Subordinated Loans (as defined in the Receivables Sale Agreement), (iv) any payment made to redeem,
purchase, repurchase or retire, or to obtain the surrender of, any outstanding warrants, options or
other rights to acquire shares of any class of capital stock of Seller now or hereafter
outstanding, and (v) any payment of management fees by Seller (except for reasonable management
fees to any Originator or its Affiliates in reimbursement of actual management services performed).
“S&P” means Standard and Poor’s Ratings Services, a division of The McGraw Hill Companies,
Inc.
“Scheduled Facility Termination Date” means, for any Group Commitment (or portion thereof),
the “Scheduled Facility Termination Date” set forth therefor on the signature page hereof (or in
the applicable Assumption Agreement or Transfer Supplement).
“Secured Parties” means the Indemnified Parties.
“Seller” has the meaning set forth in the preamble to this Agreement.
“Seller Parties” has the meaning set forth in the preamble to this Agreement.
“Servicer” means at any time the Person (which may be the Administrator) then authorized
pursuant to Article VIII to service, administer and collect Receivables.
“Servicing Fee” means, for each day in a Calculation Period:
(a) an amount equal to (i) the Servicing Fee Rate times (ii) the aggregate Outstanding
Balance of all Receivables at the close of business on the Cut-Off Date immediately
preceding such Calculation Period, times (iii) 1/360; or
(b) on and after the Servicer’s reasonable request made at any time when ABDC or one of
its Affiliates is no longer acting as Servicer hereunder, an alternative amount specified by
the successor Servicer not exceeding (i) 110% of such Servicer’s reasonable costs and
expenses of performing its obligations under this Agreement during the preceding Calculation
Period, divided by (ii) the number of days in the current Calculation Period.
“Servicing Fee Rate” means 1.0% per annum; provided that if ABDC or one of its Affiliates is
the Servicer, such rate shall mean 0.125% per annum.
“Servicing Reserve” means, for any Calculation Period, the product (expressed as a percentage)
of (a) the Servicing Fee Rate (determined assuming ABDC is not the Servicer),
I-23
times (b) a fraction,
the numerator of which is the highest Days Sales Outstanding for the most recent 12 Calculation
Periods and the denominator of which is 360.
“Settlement Date” means the 2nd Business Day after each Settlement Reporting Date
and the applicable Facility Termination Date.
“Settlement Report” means a report, in substantially the form of Exhibit VI hereto
(appropriately completed), together with the electronic backup data which is part of the
spreadsheet that creates such report, furnished by the Servicer to the Administrator and each Purchaser
Agent pursuant to Section 8.5.
“Settlement Reporting Date” means the 25th day of each month immediately following
the Cut-Off Date (or if any such day is not a Business Day, the next succeeding Business Day
thereafter) or such other days of any month as may be required, or as Administrator or any
Purchaser Agent may request, in connection with Section 8.5.
“Subsidiary” of a Person means (i) any corporation more than 50% of the outstanding securities
having ordinary voting power of which shall at the time be owned or controlled, directly or
indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more
of its Subsidiaries, or (ii) any partnership, association, limited liability company, joint venture
or similar business organization more than 50% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled.
“Transaction Documents” means, collectively, this Agreement, each Purchase Notice, the
Receivables Sale Agreement, each Collection Account Agreement, the Performance Undertaking, the Fee
Letters, each Subordinated Note (as defined in the Receivables Sale Agreement), the Account
Disclosure Letter and all other instruments, documents and agreements executed and delivered in
connection herewith by any of the Seller Parties.
“Transfer Supplement” has the meaning set forth in Section 12.1(c).
“UCC” means the Uniform Commercial Code as from time to time in effect in the specified
jurisdiction.
“Uncommitted Purchasers” means each financial institution or commercial paper conduit that is
a party to the Agreement, as a purchaser, or that becomes a party to the Agreement, as an
“Uncommitted Purchaser” or an “Uncommitted Purchaser” pursuant to an Assumption Agreement or
otherwise.
“Unmatured Amortization Event” means an event which, with the passage of time or the giving of
notice, or both, would constitute an Amortization Event.
“Walgreen Extended Term Receivables” has the meaning set forth in clause (q) of the
definition of Eligible Receivable.
“Xxxxx Fargo” means Xxxxx Fargo Bank, National Association in its individual capacity and its
successors.
I-24
“Yield” means for each Interest Period relating to a Receivable Interest funded through a Bank
Rate Funding, an amount equal to the product of the applicable Yield Rate for such Receivable
Interest multiplied by the Invested Amount of such Receivable Interest for each day elapsed during
such Interest Period, annualized on a 360 day basis.
“Yield Rate” means, at any time (a) with respect to each Receivable Interest funded through a
Bank Funding, (i) the applicable Bank Rate on such day or (ii) at any time that the Purchasers
whose Commitments aggregate more than 50% of the aggregate of the Commitments of all Purchasers are
then funding Receivable Interests at the Alternate Base Rate, the Alternate Base Rate on such day and (b) with respect to each Receivable Interest funded through a
Liquidity Funding, the Alternate Base Rate on such day; provided that, in either case, from and
after the occurrence of an Amortization Event, the Yield Rate shall be the Default Rate.
“Yield Reserve” means, for any Calculation Period, the product (expressed as a percentage) of
(i) 1.5 times (ii) the Alternate Base Rate as of the immediately preceding Cut-Off Date times (iii)
a fraction the numerator of which is the highest Days Sales Outstanding for the most recent 12
Calculation Periods and the denominator of which is 360.
All accounting terms not specifically defined herein shall be construed in accordance with
GAAP. All terms used in Article 9 of the UCC in the State of New York, and not specifically
defined herein, are used herein as defined in such Article 9.
I-25
EXHIBIT II
FORM OF PURCHASE NOTICE
—
Amerisource Receivables Financial Corporation
PURCHASE NOTICE
dated , 20
for Purchase on , 20
Bank of America, National Association, as Administrator
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: ABCP Conduit Group
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
[Address to each Purchaser Agent]
Ladies and Gentlemen:
Reference is made to the Amended and Restated Receivables Purchase Agreement dated as of April
29, 2010 (as amended, supplemented or otherwise modified from time to time, the “Agreement”) among
Amerisource Receivables Financial Corporation (the “Seller”), AmerisourceBergen Drug Corporation,
as initial Servicer, the various Purchaser Groups from time to time party thereto, and Bank of
America, National Association, as Administrator. Capitalized terms defined in the Agreement are
used herein with the same meanings.
1. The [Servicer, on behalf of the] Seller hereby certifies, represents and warrants to the
Administrator, each Purchaser Agent and each Purchaser that on and as of the Purchase Date (as
hereinafter defined):
(a) all applicable conditions precedent set forth in Article VI of the Agreement have
been satisfied;
(b) each of its representations and warranties contained in Article V of the Agreement
will be true and correct, in all material respects, as if made on and as of the Purchase Date;
(c) no event has occurred and is continuing, or would result from the requested Purchase, that
constitutes an Amortization Event or Unmatured Amortization Event;
(d) the applicable Facility Termination Date has not occurred; and
II-1
(e) after giving effect to the Purchase requested below, (i) no Related Committed Purchaser’s
aggregate Invested Amount shall exceed its Available Commitment, (ii) no Purchaser Group’s Group
Invested Amount shall exceed its Group Commitment, and (iii) the aggregate of the Receivable
Interests shall not exceed 100%.
2. The [Servicer, on behalf of the] Seller hereby requests that the Purchasers make a
Purchase on
_____
, 20 __
(the “Purchase Date”) as follows:
(a) Purchase Price: $
_____
(b) (X) Ratable Share:
|
|
|
|
|
|
|
|
|
(i)
|
|
Bank of America, National Association’s |
|
|
|
|
|
|
Purchaser Group:
|
|
$ |
|
|
|
|
|
|
|
|
|
(ii)
|
|
Liberty Street Funding LLC’s |
|
|
|
|
|
|
Purchaser Group:
|
|
$ |
|
|
|
|
|
|
|
|
|
(iii)
|
|
Market Street Funding LLC’s |
|
|
|
|
|
|
Purchaser Group:
|
|
$ |
|
|
|
|
|
|
|
|
|
(iv)
|
|
Victory Receivables Corporation’s |
|
|
|
|
|
|
Purchaser Group:
|
|
$ |
|
|
|
|
|
|
|
|
|
(v)
|
|
Xxxxx Fargo Bank, National Association
Corporation’s Purchaser Group:
|
|
$ |
|
|
|
|
|
|
|
|
|
(vi)
|
|
Working Capital Management Co., LP’s |
|
|
|
|
|
|
Purchaser Group:
|
|
$ |
|
|
|
1 |
|
For Purchases based on the Ratable Share. |
II-2
|
|
|
|
|
|
|
|
|
(Y)
|
|
Accordion Ratable Share2: |
|
|
|
|
|
|
|
|
|
|
|
(i)
|
|
Bank of America, National Association’s |
|
|
|
|
|
|
Purchaser Group:
|
|
$ |
|
|
|
|
|
|
|
|
|
(ii)
|
|
Liberty Street Funding LLC’s |
|
|
|
|
|
|
Purchaser Group:
|
|
$ |
|
|
|
|
|
|
|
|
|
(iii)
|
|
Market Street Funding LLC’s |
|
|
|
|
|
|
Purchaser Group:
|
|
$ |
|
|
|
|
|
|
|
|
|
(iv)
|
|
Victory Receivables Corporation’s |
|
|
|
|
|
|
Purchaser Group:
|
|
$ |
|
|
|
|
|
|
|
|
|
(v)
|
|
Xxxxx Fargo Bank, National Association’s |
|
|
|
|
|
|
Purchaser Group:
|
|
$ |
|
|
|
|
|
|
|
|
|
(vi)
|
|
Working Capital Management Co., LP’s |
|
|
|
|
|
|
Purchaser Group:
|
|
$ |
3. Please disburse the proceeds of the Purchase as follows:
[Apply
$ to payment of Aggregate Unpaids due on the Purchase Date]. [Wire
transfer
$ to the Facility Account.]
|
|
|
2 |
|
For Purchases based on the Accordion Ratable Share. |
II-3
IN WITNESS WHEREOF, the Servicer, on behalf of the Seller has caused this Purchase Request to
be executed and delivered as of this day of , .
|
|
|
|
|
|
[AmerisourceBergen Drug Corporation, as Servicer, on behalf of:]
Amerisource Receivables Financial Corporation, as Seller
|
|
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By: |
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|
Name: |
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|
|
Title: |
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|
II-4
EXHIBIT III
PLACES OF BUSINESS OF THE SELLER PARTIES; LOCATIONS OF RECORDS
Name of Seller:
Amerisource Receivables Financial Corporation
Location of Books and Records:
|
|
|
Name of Location |
|
Address/Location of Records |
|
|
|
Chesterbrook
|
|
1300 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx, XX 00000 |
Orange
|
|
4000 Xxxxxxxxxxxx Xxxxx, Xxxxxx, XX 00000 |
|
|
|
|
|
|
Atlanta
|
|
1000 Xxxxxxxxx Xxxx., Xxxxxxx, XX 00000 |
Bethlehem
|
|
5100 Xxxxxx Xxxx., Xxxxxxxxx, XX 00000 |
Birmingham
|
|
170 Xxxxxx Xxxxxx Xxxx., Xxxxxx, XX 00000 |
Boston
|
|
100 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 |
Chicago
|
|
1000 Xxxx Xxxxxx Xxxx, Xxxxxxxxxx, XX 00000 |
Columbus
|
|
6300 XxXxxxx Xxxxx, Xxxxxxxxxx, XX 00000 |
Corona
|
|
1800 Xxxxxxxxxx Xxxxxx, Xxxxxx, XX 00000 |
Dallas
|
|
500 Xxxxxxx Xxxxxxx, Xxxxxxx, XX 00000 |
Denver
|
|
500 X. 00xx Xxxxxx, Xxxxxx, XX 00000 |
Honolulu
|
|
230 Xxxx Xxxxxx Xxxxxx Xx. #X0, Xxxxxxxx, XX 00000 |
Houston
|
|
12000 X. Xxxxxxx Xxxx., Xxxxx Xxxx, XX 00000 |
Kansas City
|
|
11000 X. Xxxxxxxx Xxx., Xxxxxx Xxxx, XX 00000 |
Minneapolis
|
|
6800 Xxxxx Xxx Xx., Xxxx Xxxxxxx, XX 00000 |
Morrisville
|
|
120 Xxxxx Xxx Xxxxx, Xxxxxxxxxxx, XX 00000 |
Orlando
|
|
2100 Xxxxxxxxx Xxx, Xxxxxxx, XX 00000 |
Paducah
|
|
320 Xxxxx 0xx Xxxxxx, Xxxxxxx, XX 00000 |
Phoenix
|
|
1800 X. 00xx Xxxxxx, Xxxxxxx, XX 00000 |
Richmond
|
|
9900 X.X.X. Xxxxxx Xxxx., Xxxx Xxxxx, XX 00000 |
Sacramento
|
|
1300 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 |
Salt Lake City
|
|
1700 Xxxxxxx Xxxxx, Xxxx Xxxx Xxxx, XX 00000 |
Seattle
|
|
19000 00xx Xxxxxx Xxxxx, Xxxx, XX 00000 |
Thorofare
|
|
100 Xxxxxx Xxxx., Xxxxxxxxx, XX 00000 |
Valencia
|
|
24000 Xxxxxx Xxxxxx, Xxxxxxxx, XX 00000 |
Williamston
|
|
Onx Xxxxxxxxxx Xxxx, Xxxxxxxxxxx, XX 00000 |
Legal, Trade and Assumed Names:
Amerisource Receivables Financial Corporation
Corporate Information Regarding the Seller
|
|
|
|
|
Federal Tax Identification Number: |
|
|
00-0000000 |
|
Delaware Corporation Organization Number: |
|
|
3031303 |
|
III-1
EXHIBIT IV
FORM OF COMPLIANCE CERTIFICATE
To: Bank of America, National Association, as Administrator
This Compliance Certificate is furnished pursuant to that certain Amended and Restated
Receivables Purchase Agreement dated as of April 29, 2010 among Amerisource Receivables Financial
Corporation (the “Seller”), AmerisourceBergen Drug Corporation (the “Servicer”), the various
Purchaser Groups from time to time party thereto and Bank of America, National Association, as
Administrator (the “Agreement”).
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected of Seller.
2. I have reviewed the terms of the Agreement and I have made, or have caused to be made under
my supervision, a detailed review of the transactions and conditions of Seller and its Subsidiaries
during the accounting period covered by the attached financial statements.
3. The examinations described in paragraph 2 did not disclose, and I have no knowledge of, the
existence of any condition or event which constitutes an Amortization Event or Unmatured
Amortization Event, as each such term is defined under the Agreement, during or at the end of the
accounting period covered by the attached financial statements or as of the date of this
Certificate[, except as set forth in paragraph 5 below].
4. Schedule I attached hereto sets forth financial data and computations evidencing
the compliance with Section 9.1(o) and certain covenants of the Agreement, all of which
data and computations are true, complete and correct.
[5. Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the
nature of the condition or event, the period during which it has existed and the action which
Seller has taken, is taking, or proposes to take with respect to each such condition or event:
]
The foregoing certifications, together with the computations set forth in Schedule I hereto and the
financial statements delivered with this Certificate in support hereof, are made and delivered as
of , 20__.
IV-1
SCHEDULE I TO COMPLIANCE CERTIFICATE
A. Schedule of Compliance as of ,
_____
with Section
_____
of the Agreement. Unless
otherwise defined herein, the terms used in this Compliance Certificate have the meanings ascribed
thereto in the Agreement.
This schedule relates to the month ended:
Sch. I
EXHIBIT V
FORM OF COLLECTION ACCOUNT AGREEMENT
COLLECTION ACCOUNT AGREEMENT
, 2003
[Collection Bank Name]
[Collection Bank Address]
Attn:
Fax No. ( )
|
|
|
Re: [Name of current Lock-Box owner]/Amerisource Receivables Financial
Corporation |
Ladies and Gentlemen:
Reference is hereby made to each of the [departmental] post office boxes listed on Schedule 1
hereto (each, a “Lock-Box”) of which [Collection Bank Name], a banking
association (hereinafter “you”), has exclusive control for the purpose of receiving mail
and processing payments therefrom pursuant to the [Lock-Box Service Agreement] dated
, originally by and between Amerisource Bergen Drug Corporation (the
“Company”) and you (the “Service Agreement”).
1. You hereby confirm your agreement to perform the services described therein. Among the
services you have agreed to perform therein, is to endorse all checks and other evidences of
payment received in each of the Lock-Boxes, and credit such payments to account no.
(the “Lock-Box Account”).
2. The Company hereby informs you that it has transferred to its affiliate, Amerisource
Receivables Financial Corporation, a Delaware corporation (the “Seller”) all of the
Company’s right, title and interest in and to the items from time to time received in the
Lock-Boxes and/or deposited in the Lock-Box Account, but that the Company has agreed to continue to
service the receivables giving rise to such items. Accordingly, the Company and Seller hereby
request that the name of the Lock-Box Account be changed to “Amerisource Receivables Financial
Corporation.” Seller hereby further advises you that it has pledged the receivables giving rise to
such items to Bank of America, National Association, as Administrator for various parties (in such
capacity, the “Administrator”) and has granted a security interest to the Administrator in
all of Seller’s right, title and interest in and to the Lock-Box Account and the funds therein.
V-1
3. Each of the Company and Seller hereby irrevocably instructs you, and you hereby agree, that
upon receiving notice from the Administrator in the form attached hereto as Annex A:
(i) the name of the Lock-Box Account will be changed to “Bank of America, National
Association, as Administrator” (or any designee of the Administrator), and the Administrator will
have exclusive ownership of and access to the Lock-Boxes and the Lock-Box Account, and none of the
Company, Seller, nor any of their respective affiliates will have any control of the Lock-Boxes or
the Lock-Box Account or any access thereto, (ii) you will either continue to send the funds from
the Lock-Boxes to the Lock-Box Account, or will redirect the funds as the Administrator may
otherwise request, (iii) you will transfer monies on deposit in the Lock-Box Account to the
following account:
|
|
|
|
|
|
|
Bank Name:
|
|
Wachovia Bank, National Association |
|
|
Location:
|
|
Charlotte, North Carolina |
|
|
ABA Routing No.:
|
|
ABA # 000000000 |
|
|
Credit Account No.:
|
|
For credit to Variable Funding Capital Company
LLC Account |
|
|
Account Name:
|
|
CP Liability Account |
|
|
Reference:
|
|
VFCC/Amerisource Receivables
Financial Corporation |
|
|
Attention:
|
|
Xxxxxx XxXxxxxx, tel. (000) 000-0000 |
or to such other account as the Administrator may specify, (iv) all services to be performed by you
under the Service Agreement will be performed on behalf of the Administrator, and (v) all
correspondence or other mail which you have agreed to send to the Company or Seller will be sent to
the Administrator at the following address:
|
|
|
|
|
|
|
Bank of America, National Association, as Administrator
214 North Xxxxx Street, 21st Floor |
|
|
NC1-027-21-01 |
|
|
|
|
Charlotte, NC 28255 |
|
|
|
|
Attention:
|
|
ABCP Conduit Group |
|
|
Facsimile:
|
|
(000) 000-0000 |
|
|
Telephone:
|
|
(000) 000-0000 |
Moreover, upon such notice, the Administrator will have all rights and remedies given to the
Company (and Seller, as the Company’s assignee) under the Service Agreement. The Company agrees,
however, to continue to pay all fees and other assessments due thereunder at any time.
4. In addition, as collateral security for Seller’s obligations to the Administrator and
certain other persons in connection with the Receivables Purchase Agreement, Seller hereby grants
to the Administrator a present and continuing security interest in (a) the Lock-Box Account, (b)
all general intangibles and privileges in respect of the Lock-Box Account, and (c) all cash,
checks, money orders and other items of value of Seller now or hereafter paid, deposited, credited,
held (whether for collection, provisionally or otherwise) or otherwise, in your possession, under
your control, or in transit to you or any of your agents, bailees or custodians in respect of the
Lock-Box Account, and all proceeds of the foregoing
V-2
(collectively, “Receipts”). You hereby acknowledge and agree that (i) the
Administrator has “Control” (as contemplated in §9-104 of the applicable UCC) of the Lock-Box
Account and you are required to comply with the instructions of the Administrator directing
disposition of the funds in the Lock-Box Account without further consent by AmeriSource
Corporation, the Servicer, Seller or any affiliate thereof and (ii) you shall at all times maintain
the Lock-Box Account as a “Deposit Account” (as defined in §9-102 of the applicable UCC). The
Administrator hereby appoints you as the Administrator’s bailee for the Lock-Box Account and all
Receipts for the purpose of perfecting the Administrator’s security interest in such collateral,
and you hereby accept such appointment and agree to be bound by the terms of this letter agreement.
Seller hereby agrees to such appointment and further agrees that you, on behalf of the
Administrator, shall be entitled to exercise, as directed in accordance with the terms of this
letter agreement, any and all rights which the Administrator may have in connection with the
transactions referenced in the first paragraph of this letter agreement or under applicable law
with respect to the Lock-Box Account, all Receipts and all other collateral described in this
paragraph.
5. You hereby agree not to institute or join any other person or entity in instituting, any
suit pursuant to Tixxx 00, Xxxxxx Xxxxxx Xode, or any similar suit or proceeding under then
applicable state or federal law providing for the relief of debtors or the protection of creditors,
against Seller prior to the date which is one year and one day after payment of all obligations of
Seller to the Administrator (and the parties for which it is acting as agent) are paid in full.
This section shall survive any termination of this letter agreement.
6. You hereby acknowledge that monies deposited in the Lock-Box Account or any other account
established with you by the Administrator for the purpose of receiving funds from the Lock-Boxes
are subject to the liens of the Administrator, and will not be subject to deduction, set-off,
banker’s lien or any other right you or any other party may have against the Company or Seller
except that you may debit the Lock-Box Account for any items deposited therein that are returned or
otherwise not collected and for all charges, fees, commissions and expenses incurred by you in
providing services hereunder, all in accordance with your customary practices for the charge back
of returned items and expenses.
7. You will be liable only for direct damages in the event you fail to exercise ordinary care.
You shall be deemed to have exercised ordinary care if your action or failure to act is in
conformity with general banking usages or is otherwise a commercially reasonable practice of the
banking industry. You shall not be liable for any special, indirect or consequential damages, even
if you have been advised of the possibility of these damages.
8. The parties acknowledge that you may assign or transfer your rights and obligations
hereunder solely to a wholly-owned subsidiary of [insert name of Collection Bank’s holding
company].
9. Seller agrees to indemnify you for, and hold you harmless from, all claims, damages,
losses, liabilities and expenses, including legal fees and expenses, resulting from or with respect
to this letter agreement and the administration and maintenance of the Lock-Box Account and the
services provided hereunder, including, without limitation: (a) any action taken, or not taken, by
you in regard thereto in accordance with the terms of this letter agreement, (b) the breach of any
representation or warranty made by Seller pursuant to this letter
V-3
agreement, (c) any item, including, without limitation, any automated clearinghouse
transaction, which is returned for any reason, and (d) any failure of Seller to pay any invoice or
charge to you for services in respect to this letter agreement and the Lock-Box Account or any
amount owing to you from Seller with respect thereto or to the service provided hereunder.
10. THIS LETTER AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER WILL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ,
WHICH STATE SHALL BE YOUR “LOCATION” FOR PURPOSES OF THE UNIFORM COMMERCIAL CODE FROM AND AFTER
JULY 1, 2002. This letter agreement may be executed in any number of counterparts and all of such
counterparts taken together will be deemed to constitute one and the same instrument.
11. This letter agreement contains the entire agreement between the parties, and may not be
altered, modified, terminated or amended in any respect, nor may any right, power or privilege of
any party hereunder be waived or released or discharged, except upon execution by all parties
hereto of a written instrument so providing. In the event that any provision in this letter
agreement is in conflict with, or is inconsistent with, any provision of the Service Agreement,
this letter agreement will exclusively govern and control. Each party agrees to take all actions
reasonably requested by any other party to carry out the purposes of this letter agreement or to
preserve and protect the rights of each party hereunder.
V-4
Please indicate your agreement to the terms of this letter agreement by signing in the space
provided below. This letter agreement will become effective immediately upon execution of a
counterpart of this letter agreement by all parties hereto.
|
|
|
|
|
|
Very truly yours,
[NAME OF CURRENT LOCK-BOX OWNER]
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
|
AMERISOURCE RECEIVABLES FINANCIAL CORPORATION
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
V-5
|
|
|
|
|
Acknowledged and agreed to as of the
date first above written:
[COLLECTION BANK]
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
|
BANK OF AMERICA, NATIONAL ASSOCIATION,
as Administrator
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
V-6
ANNEX
A
FORM OF NOTICE
[On letterhead of the Administrator]
[Date]
[Collection Bank Name]
[Collection Bank Address]
Attn:
Fax No. ( )
|
|
|
Re: [Name of current Lock-Box owner]/Amerisource Receivables Financial
Corporation |
Ladies and Gentlemen:
We hereby notify you that we are exercising our rights pursuant to that certain letter
agreement dated , 2003 (the “Letter Agreement”) among [Name of current Lock-Box
Owner], Amerisource Receivables Financial Corporation, you and us, to have the name of, and to have
exclusive ownership and control of, account no. identified in the Letter Agreement (the
“Lock-Box Account”) maintained with you, transferred to us. The Lock-Box Account will
henceforth be a zero-balance account, and funds deposited in the Lock-Box Account should be sent at
the end of each day to the account specified in Section 3(i) of the Letter Agreement, or as
otherwise directed by the undersigned. You have further agreed to perform all other services you
are performing under the “Service Agreement” (as defined in the Letter Agreement) on our behalf.
We appreciate your cooperation in this matter.
|
|
|
|
|
|
Very truly yours,
BANK OF AMERICA, NATIONAL ASSOCIATION, as
Administrator
|
|
|
By: |
|
|
|
|
Title: |
|
|
|
|
|
Annex A
SCHEDULE 1
Lock-Box Post Office Address
SCH. 1
EXHIBIT VI
FORM OF SETTLEMENT REPORT
Amerisource Receivables Financial Corporation
for the Month Ended:
(Page 1)
($)
I. Portfolio Information
|
|
|
|
|
|
|
|
|
1. Beginning of Month Balance: (Total A/R Outstanding |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2. Gross Sales (Domestic & Foreign): |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3. Deduct |
|
|
|
|
|
|
|
|
a. Total collections: |
|
|
|
|
|
|
|
|
b. Dilution |
|
|
|
|
|
|
|
|
c. Net Write Offs |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
d. Misc. Non-Dilutive Adj. |
|
|
|
|
|
|
|
|
4. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
a. Calculated Ending A/R Balance[(1) + (2) -(3 a,b,c)+3d)]: |
|
|
|
|
|
|
|
|
b. Reported Ending A/R Balance |
|
|
|
|
|
|
|
|
c. Difference (if any) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5. Deduct |
|
|
|
|
|
|
|
|
a. Delinquent Receivables |
|
|
|
|
|
|
|
|
b. Defaulted Receivables |
|
|
|
|
|
|
|
|
c. Bankrupt Customers < 60 DPD |
|
|
|
|
|
|
|
|
d. Intercompany/affiliate Receivables < 60 DPD |
|
|
|
|
|
|
|
|
e. Foreign Receivables < 60 DPD |
|
|
|
|
|
|
|
|
f. Total Government |
|
|
|
|
|
|
|
|
g. Contra Relationships |
|
|
|
|
|
|
|
|
h. Cross Age Test 50% > 60 DPD |
|
|
|
|
|
|
|
|
i. Excess Receivables with terms 31-60 Days |
|
|
|
|
|
|
|
|
j. Excess Receivables with terms 61-90 Days |
|
|
|
|
|
|
|
|
k. Notes Receivables |
|
|
|
|
|
|
|
|
l. Unapplied Cash (if not excluded from aging) |
|
|
|
|
|
|
|
|
m. Excess Futures (>3.5% of Total AR) |
|
|
|
|
|
|
|
|
n. Other Ineligibles |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
o. Total Ineligibles |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6. Eligible Receivables [(4 b) -(5.o)]: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7. Deduct Excess Concentration: |
|
|
|
|
|
|
|
|
8. Deduct Rebate Reserve |
|
|
|
|
|
|
|
|
9. Net Pool Balance [(6)-(7)]: |
|
|
|
|
|
|
|
|
VI-1
(Page 2)
($)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
One Month |
|
|
Two Months |
|
|
Three Months |
|
10. |
|
Aging Schedule: |
|
Current Month |
|
|
% |
|
|
Prior |
|
|
Prior |
|
|
Prior |
|
a |
|
Futures |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
b |
|
Current |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
c |
|
1-30 days Past Due |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
d |
|
31-60 Days Past Due |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
e |
|
Gross Balance 61-90 DPD |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
f |
|
Gross Balance 91-120 DPD |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
g |
|
Gross Balance 121-150 DPD |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
h |
|
Gross Balance 151 + DPD |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
i |
|
Bergen Credit Balance 61 + DPD |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
II. Calculations Reflecting Current Activity
|
|
|
|
|
|
|
|
|
11. CP Outstanding |
|
|
|
|
|
|
|
|
12. Required Reserve % |
|
|
|
|
|
|
|
|
13. Required Reserve [(8) x (11)]: |
|
|
|
|
|
|
|
|
14. Funding Available |
|
|
|
|
|
|
|
|
15. Additional Availability or (Required Paydown) |
|
|
|
|
|
|
|
|
III. Compliance
|
|
|
|
|
|
|
|
|
16. Asset Interest [(10) + (12)/(8)] < 100%: |
|
Compliance |
|
IIn |
|
|
17. 3M Avg. Delinquency Ratio |
|
Compliance |
|
IIn |
|
|
18. 3M Avg. Default Ratio |
|
Compliance |
|
IIn |
|
|
19. 3M Avg. Dilution Ratio |
|
Compliance |
|
IIn |
|
|
20. 1M DSO Ratio |
|
Compliance |
|
IIn |
|
|
21. Facility Limit [(12)<= $1,050,000,000 |
|
Compliance |
|
IIn |
|
|
VI-2
Amerisource Receivables Financial Corporation
For the Month Ended:
(Page 3)
($)
IV. |
|
Excess Concentration: (Calculation) |
|
|
|
Eligible Receivables |
|
|
|
|
|
|
|
|
|
Allowable Percentage |
|
Max. Allowable Balance |
|
|
Credit Rating |
|
5.50% |
|
$ |
0 |
|
|
Advance PCS |
8.00% |
|
$ |
0 |
|
|
Long’s |
2.50% |
|
$ |
0 |
|
|
NR/NR |
3.00% |
|
$ |
0 |
|
|
A3/P3 |
6.00% |
|
$ |
0 |
|
|
A2/P2 |
11.00% |
|
$ |
0 |
|
|
A1/P1 |
11.00% |
|
$ |
0 |
|
|
A1+/P1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Largest |
|
Short-Term Debt |
|
|
Allowable |
|
|
Total |
|
|
Allowable |
|
|
Excess |
|
|
|
Obligors |
|
Rating |
|
|
Percentage |
|
|
Receivables |
|
|
Receivables |
|
|
Receivables |
|
1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
11 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
13 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
14 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
15 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The undersigned hereby represents and warrants that the foregoing is a true and
accurate accounting with respect to outstanding receivables as of
accordance with the Receivables Purchase Agreement dated and that all
representations and warranties related to such Agreement are restated and reaffirmed.
VI-3
EXHIBIT VII
FORM OF ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT (this “Agreement”), dated as of [_____ , 20_____], is among
AMERISOURCE RECEIVABLES FINANCIAL CORPORATION (the
“Seller”), [_____], as purchaser (the “[_____] Uncommitted Purchaser”), [_____], as the related committed purchaser
(the “[_____] Related Committed Purchaser” and together with the Uncommitted Purchaser, the
“[_____] Purchasers”), and
[_____], as agent for the Purchasers (the “[_____] Purchaser Agent”
and together with the Purchasers, the “[_____] Purchaser Group”).
BACKGROUND
The Seller and various others are parties to a certain Amended and Restated Receivables
Purchase Agreement dated as of April 29, 2010 (as amended, restated, supplemented or otherwise
modified through the date hereof, the “Receivables Purchase Agreement”). Capitalized terms used and
not otherwise defined herein have the respective meaning assigned to such terms in the Receivables
Purchase Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. This letter constitutes an Assumption Agreement as defined in the Receivables
Purchase Agreement. The Seller desires [the [_____] Purchasers] [the [_____] Related Committed
Purchaser] to [become Purchasers under] [increase its existing Commitment under] the Receivables
Purchase Agreement and upon the terms and subject to the conditions set forth in the Receivables
Purchase Agreement, the [_____] Purchasers agree to [become Purchasers thereunder] [increase its
Commitment in an amount equal to the amount set forth as the “Commitment” under the signature of
such [_____] Related Committed Purchaser hereto].
Seller hereby represents and warrants to the [_____] Purchasers as of the date hereof, as
follows:
(i) the representations and warranties of the Seller contained in Section 5.1 of the
Receivables Purchase Agreement are correct on and as of such dates as though made on and as of such
dates and shall be deemed to have been made on such dates;
(ii) no Amortization Event or Unmatured Amortization Event has occurred and is continuing, or
would result from such transfer; and
(iii) the Facility Termination Date shall not have occurred.
SECTION 2. Upon execution and delivery of this Agreement by the Seller and each member of the
[_____] Purchaser Group, satisfaction of the other conditions to assignment specified in the
Receivables Purchase Agreement and receipt by the Administrator of counterparts of this Agreement
(whether by facsimile or otherwise) executed by each of the parties hereto, [the [_____] Purchasers
shall become a party to, and have the rights and obligations of Purchasers under, the Receivables
Purchase Agreement] [the [_____] Related
VII-1
Committed Purchaser shall increase its Commitment in the amount set forth as the “Commitment”
under the signature of the [_____] Related Committed Purchaser, hereto].
[Insert Alternate Base Rate, CP Costs, LIBO Rate and Scheduled Facility Termination Date as
appropriate.]
SECTION 3. Each party hereto hereby covenants and agrees that prior to the date which is one
year and one day after the payment in full of all outstanding commercial paper notes or other
indebtedness of each Conduit Purchaser, it will not institute against or join any other Person in
instituting against such Conduit Purchaser any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings or other similar proceeding under the laws of the United States or any
state of the United States. The agreements set forth in this Section 3 and the parties’
respective obligations under this Section 3 shall survive the termination hereof and of the
Receivables Purchase Agreement.
SECTION 4. No Conduit shall have any obligation to pay any amounts owing under the
Receivables Purchase Agreement unless and until such Conduit Purchaser has received such amounts
pursuant to its portion of the Receivable Interests and such amounts are not necessary to pay
outstanding commercial paper notes or other outstanding indebtedness of such Conduit Purchaser. In
addition, each party hereto hereby agrees that no liability or obligation of any Conduit Purchaser
under the Receivables Purchase Agreement for fees, expenses or indemnities shall constitute a claim
(as defined in Section 101 of Title 11 of the United States Bankruptcy Code) against such Conduit
Purchaser unless such Conduit Purchaser has received cash from its portion of the Receivable
Interests sufficient to pay such amounts, and such amounts are not necessary to pay outstanding
commercial paper notes or other indebtedness of such Conduit Purchaser. The agreements set forth
in this Section 4 and the parties’ respective obligations under this Section 4
shall survive the termination hereof and of the Receivables Purchase Agreement.
SECTION 5. THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
This Agreement may not be amended, supplemented or waived except pursuant to a writing signed by
the party to be charged. This Agreement may be executed in counterparts, and by the different
parties on different counterparts, each of which shall constitute an original, but all together
shall constitute one and the same agreement.
(continued on following page)
VII-2
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their duly authorized
officers as of the date first above written.
|
|
|
|
|
|
[_____], as an Uncommitted Purchaser
|
|
|
By: |
|
|
|
|
Name Printed: |
|
|
|
Title: |
|
|
|
|
[Address]
[_____], as a Related Committed Purchaser
|
|
|
By: |
|
|
|
|
Name Printed: |
|
|
|
Title: |
|
|
|
|
[Address] [Commitment]
[_____], as Purchaser Agent for [_____]
|
|
|
By: |
|
|
|
|
Name Printed: |
|
|
|
Title: |
|
|
|
|
[Address] |
|
VII-3
|
|
|
|
|
AMERISOURCE RECEIVABLES
FINANCIAL CORPORATION, as Seller
|
|
|
By: |
|
|
|
|
Name Printed: |
|
|
|
Title: |
|
|
|
|
Consented and Agreed:
BANK OF AMERICA, NATIONAL ASSOCIATION,
as Administrator
|
|
|
By: |
|
|
|
|
Name Printed: |
|
|
|
Title: |
|
|
|
|
By: |
|
|
|
|
Name Printed: |
|
|
|
Title: |
|
|
|
|
Consented and Agreed:
[THE PURCHASERS]
|
|
|
VII-4
Exhibit VIII
Form of Transfer Supplement
with respect to
Amerisource Receivables Financial Corporation
Receivables Purchase Agreement
Dated as of [_____ __, 20__]
Section 1.
|
|
|
|
|
Commitment assigned: |
|
$ |
___________ |
|
Assignor’s remaining Commitment: |
|
$ |
___________ |
|
Invested Amount allocable to Commitment assigned: |
|
$ |
___________ |
|
Assignor’s remaining Invested Amount: |
|
$ |
___________ |
|
Discount (if any) allocable to Invested Amount assigned: |
|
$ |
___________ |
|
Discount (if any) allocable to Assignor’s remaining Invested Amount: |
|
$ |
___________ |
|
Section 2.
Effective Date of this Transfer Supplement: [_____ __, 20__]
Upon execution and delivery of this Transfer Supplement by transferee and transferor and the
satisfaction of the other conditions to assignment specified in Section 12.1 of the Receivables
Purchase Agreement (as defined below), from and after the effective date specified above, the
transferee shall become a party to, and have the rights and obligations of a Related Committed
Purchaser under, the Amended and Restated Receivables Purchase Agreement dated as of April 29, 2010
(as amended, restated, supplemented or otherwise modified through the date hereof, the
“Receivables Purchase Agreement”), among Amerisource Receivables Financial Corporation, as
Seller, AmerisourceBergen Drug Corporation, as initial Servicer, Bank of America, National
Association, as Administrator, and the various purchaser groups from time to time party thereto.
[Insert Alternate Base Rate, CP Costs, LIBO Rate and Scheduled Facility Termination Date as
appropriate.]
Each party hereto hereby covenants and agrees that prior to the date which is one year and one
day after the payment in full of all outstanding commercial paper notes or other indebtedness of
each Conduit Purchaser, it will not institute against or join any other Person in instituting
against such Conduit Purchaser any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other similar proceeding under the laws of the United States or any
state of the United States. The agreements set forth in this paragraph and the parties’ respective
obligations under this paragraph shall survive the termination hereof and of the Receivables
Purchase Agreement.
VIII-1
No Conduit Purchaser shall have any obligation to pay any amounts owing under the Receivables
Purchase Agreement unless and until such Conduit Purchaser has received such amounts pursuant to
its portion of the Receivable Interests and such amounts are not necessary to pay outstanding
commercial paper notes or other outstanding indebtedness of such Conduit Purchaser. In addition,
each party hereto hereby agrees that no liability or obligation of any Conduit Purchaser under the
Receivables Purchase Agreement for fees, expenses or indemnities shall constitute a claim (as
defined in Section 101 of Title 11 of the United States Bankruptcy Code) against such Conduit
Purchaser unless such Conduit Purchaser has received cash from its portion of the Receivable
Interests sufficient to pay such amounts, and such amounts are not necessary to pay outstanding
commercial paper notes or other indebtedness of such Conduit Purchaser. The agreements set forth
in this paragraph and the parties’ respective obligations under this paragraph shall survive the
termination hereof and of the Receivables Purchase Agreement.
VIII-2
|
|
|
|
|
ASSIGNOR: |
[_____],
as a Related Committed Purchaser
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
ASSIGNEE: |
[_____],
as a Related Committed Purchaser
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
[Address] |
|
|
|
|
|
|
|
Accepted as of date first above
written:
[_____],
as Purchaser Agent for the
[_____] Purchaser Group
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
VIII-3
EXHIBIT IX
FORM OF AMENDED AND RESTATED PERFORMANCE UNDERTAKING
THIS AMENDED AND RESTATED PERFORMANCE UNDERTAKING (this
“Undertaking”), dated as of December
2, 2004, is executed by
AmerisourceBergen Corporation, a Delaware corporation (the
“Performance
Guarantor”), in favor of Amerisource Receivables Financial Corporation, a Delaware corporation
(together with its successors and assigns,
“Recipient”). This Undertaking amends and restates that
certain Performance Undertaking, dated as of July 10, 2003, by the Performance Guarantor and after
the date hereof, all references in any Transaction Document to the Performance Undertaking shall be
deemed references to this Undertaking.
RECITALS
1. AmerisourceBergen Drug Corporation (the “Originator”) and Recipient have entered into a
Receivables Sale Agreement, dated as of July 10, 2003 (as amended, restated or otherwise modified
from time to time, the “Sale Agreement”), pursuant to which Originator, subject to the terms and
conditions contained therein, is selling and/or contributing its right, title and interest in its
accounts receivable to Recipient.
2. Performance Guarantor owns one hundred percent (100%) of the capital stock of the
Originator and Recipient, and Originator, and accordingly, Performance Guarantor has and is
expected to continue to receive substantial direct and indirect benefits from its sale or
contribution of receivables to Recipient pursuant to the Sale Agreement (which benefits are hereby
acknowledged).
3. As an inducement for Recipient to acquire Originator’s accounts receivable pursuant to the
Sale Agreement, Performance Guarantor has agreed to guaranty the due and punctual performance by
Originator of its obligations under the Sale Agreement, as well as the Servicing Related
Obligations (as hereinafter defined).
4. Performance Guarantor wishes to guaranty the due and punctual performance by Originator of
its obligations to Recipient under or in respect of the Sale Agreement and the Servicing Related
Obligations (as hereinafter defined), as provided herein.
AGREEMENT
NOW, THEREFORE, Performance Guarantor hereby agrees as follows:
Section 1. Definitions. Capitalized terms used herein and not defined herein shall
have the respective meanings assigned thereto in the Sale Agreement or the Receivables Purchase
Agreement (as hereinafter defined). In addition:
“Guaranteed Obligations” means, collectively: (a) all covenants, agreements, terms,
conditions and indemnities to be performed and observed by Originator under and pursuant to the
Sale Agreement and each other document executed and delivered by Originator pursuant to the Sale
Agreement, including, without limitation, the due and punctual payment of all sums which are or may
become due and owing by Originator under the Sale Agreement,
IX-1
whether for fees, expenses (including counsel fees), indemnified amounts or otherwise, whether
upon any termination or for any other reason and (b) all obligations of Originator (i) as Servicer
under the Receivables Purchase Agreement, dated as of July 10, 2003 by and among Recipient, as
Seller, AmerisourceBergen Drug Corporation, as Servicer, the various Purchaser Groups from time to
time party thereto, and Bank of America, National Association, as Administrator (as amended,
restated or otherwise modified, the “Receivables Purchase Agreement” and, together with the Sale
Agreement, the “Agreements”) or (ii) which arise pursuant to Sections 8.2, 8.3 or 13.3(a) of the
Receivables Purchase Agreement as a result of its termination as Servicer (all such obligations
under this clause (b), collectively, the “Servicing Related Obligations”).
Section 2. Guaranty of Performance of Guaranteed Obligations. Performance Guarantor
hereby guarantees to Recipient, the full and punctual payment and performance by Originator of its
Guaranteed Obligations. This Undertaking is an absolute, unconditional and continuing guaranty of
the full and punctual performance of all Guaranteed Obligations of Originator under the Agreements
and each other document executed and delivered by Originator pursuant to the Agreements and is in
no way conditioned upon any requirement that Recipient first attempt to collect any amounts owing
by Originator to Recipient, the Administrator, any Purchaser Agent or any Purchaser from any other
Person or resort to any collateral security, any balance of any deposit account or credit on the
books of Recipient, the Administrator, any Purchaser Agent or any Purchaser in favor of Originator
or any other Person or other means of obtaining payment. Should Originator default in the payment
or performance of any of its Guaranteed Obligations, Recipient (or its assigns) may cause the
immediate performance by Performance Guarantor of the Guaranteed Obligations and cause any payment
Guaranteed Obligations to become forthwith due and payable to Recipient (or its assigns), without
demand or notice of any nature (other than as expressly provided herein), all of which are hereby
expressly waived by Performance Guarantor. Notwithstanding the foregoing, this Undertaking is not
a guarantee of the collection of any of the Receivables and Performance Guarantor shall not be
responsible for any Guaranteed Obligations to the extent the failure to perform such Guaranteed
Obligations by Originator results from Receivables being uncollectible on account of the
insolvency, bankruptcy or lack of creditworthiness of the related Obligor; provided that nothing
herein shall relieve Originator from performing in full its Guaranteed Obligations under the
Agreements or Performance Guarantor of its undertaking hereunder with respect to the full
performance of such duties.
Section 3. Performance Guarantor’s Further Agreements to Pay. Performance Guarantor
further agrees, as the principal obligor and not as a guarantor only, to pay to Recipient (and its
assigns), forthwith upon demand in funds immediately available to Recipient, all reasonable costs
and expenses (including court costs and reasonable legal expenses) incurred or expended by
Recipient in connection with the Guaranteed Obligations, this Undertaking and the enforcement
thereof, together with interest on amounts recoverable under this Undertaking from the time when
such amounts become due until payment, at a rate of interest (computed for the actual number of
days elapsed based on a 360 day year) equal to the Prime Rate of Bank of America plus 2% per annum,
such rate of interest changing when and as such Prime Rate changes.
Section 4. Waivers by Performance Guarantor. Performance Guarantor waives notice of
acceptance of this Undertaking, notice of any action taken or omitted by Recipient (or
IX-2
its assigns) in reliance on this Undertaking, and any requirement that Recipient (or its
assigns) be diligent or prompt in making demands under this Undertaking, giving notice of any
Amortization Event, other default or omission by Originator or asserting any other rights of
Recipient under this Undertaking. Performance Guarantor warrants that it has adequate means to
obtain from Originator, on a continuing basis, information concerning the financial condition of
Originator, and that it is not relying on Recipient to provide such information, now or in the
future. Performance Guarantor also irrevocably waives all defenses (i) that at any time may be
available in respect of the Guaranteed Obligations by virtue of any statute of limitations,
valuation, stay, moratorium law or other similar law now or hereafter in effect or (ii) that arise
under the law of suretyship, including impairment of collateral. Recipient (and its assigns) shall
be at liberty, without giving notice to or obtaining the assent of Performance Guarantor and
without relieving Performance Guarantor of any liability under this Undertaking, to deal with
Originator and with each other party who now is or after the date hereof becomes liable in any
manner for any of the Guaranteed Obligations, in such manner as Recipient in its sole discretion
deems fit, and to this end Performance Guarantor agrees that the validity and enforceability of
this Undertaking, including without limitation, the provisions of Section 7 hereof, shall not be
impaired or affected by any of the following: (a) any extension, modification or renewal of, or
indulgence with respect to, or substitutions for, the Guaranteed Obligations or any part thereof or
any agreement relating thereto at any time; (b) any failure or omission to enforce any right, power
or remedy with respect to the Guaranteed Obligations or any part thereof or any agreement relating
thereto, or any collateral securing the Guaranteed Obligations or any part thereof; (c) any waiver
of any right, power or remedy or of any Termination Event, Amortization Event, or default with
respect to the Guaranteed Obligations or any part thereof or any agreement relating thereto; (d)
any release, surrender, compromise, settlement, waiver, subordination or modification, with or
without consideration, of any other obligation of any person or entity with respect to the
Guaranteed Obligations or any part thereof; (e) the enforceability or validity of the Guaranteed
Obligations or any part thereof or the genuineness, enforceability or validity of any agreement
relating thereto or with respect to the Guaranteed Obligations or any part thereof; (f) the
application of payments received from any source to the payment of any payment obligations of
Originator or any part thereof or amounts which are not covered by this Undertaking even though
Recipient (or its assigns) might lawfully have elected to apply such payments to any part or all of
the payment obligations of Originator or to amounts which are not covered by this Undertaking; (g)
the existence of any claim, setoff or other rights which Performance Guarantor may have at any time
against Originator in connection herewith or any unrelated transaction; (h) any assignment or
transfer of the Guaranteed Obligations or any part thereof; or (i) any failure on the part of
Originator to perform or comply with any term of the Agreements or any other document executed in
connection therewith or delivered thereunder, all whether or not Performance Guarantor shall have
had notice or knowledge of any act or omission referred to in the foregoing clauses (a) through (i)
of this Section 4.
Section 5. Unenforceability of Guaranteed Obligations Against Originator.
Notwithstanding (a) any change of ownership of Originator or the insolvency, bankruptcy or any
other change in the legal status of Originator; (b) the change in or the imposition of any law,
decree, regulation or other governmental act which does or might impair, delay or in any way affect
the validity, enforceability or the payment when due of the Guaranteed Obligations; (c) the failure
of Originator or Performance Guarantor to maintain in full force, validity or effect or to obtain
or renew when required all governmental and other approvals, licenses or consents
IX-3
required in connection with the Guaranteed Obligations or this Undertaking, or to take any
other action required in connection with the performance of all obligations pursuant to the
Guaranteed Obligations or this Undertaking; or (d) if any of the moneys included in the Guaranteed
Obligations have become irrecoverable from Originator for any other reason other than final payment
in full of the payment obligations in accordance with their terms, this Undertaking shall
nevertheless be binding on Performance Guarantor. This Undertaking shall be in addition to any
other guaranty or other security for the Guaranteed Obligations, and it shall not be rendered
unenforceable by the invalidity of any such other guaranty or security. In the event that
acceleration of the time for payment of any of the Guaranteed Obligations is stayed upon the
insolvency, bankruptcy or reorganization of Originator or for any other reason with respect to
Originator, all such amounts then due and owing with respect to the Guaranteed Obligations under
the terms of the Agreements, or any other agreement evidencing, securing or otherwise executed in
connection with the Guaranteed Obligations, shall be immediately due and payable by Performance
Guarantor.
Section 6. Representations, Warranties and Covenants. Performance Guarantor hereby
represents and warrants to, and covenants with, Recipient that:
(a) Existence and Standing. Performance Guarantor is a corporation duly organized,
validly existing and in good standing under the laws of its state of incorporation. Performance
Guarantor is duly qualified to do business and is in good standing as a foreign corporation, and
has and holds all corporate power and all governmental licenses, authorizations, consents and
approvals required to carry on its business in each jurisdiction in which its business is conducted
except where the failure to so qualify or so hold could not reasonably be expected to have a
material adverse effect on its financial conditions or results of operations.
(b) Authorization, Execution and Delivery; Binding Effect. The execution and delivery
by Performance Guarantor of this Undertaking, and the performance of its obligations hereunder, are
within its corporate powers and authority and have been duly authorized by all necessary corporate
action on its part. This Undertaking has been duly executed and delivered by Performance
Guarantor. This Undertaking constitutes the legal, valid and binding obligation of Performance
Guarantor enforceable against Performance Guarantor in accordance with its terms, except as such
enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar
laws relating to or limiting creditors’ rights generally and by general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at law).
(c) No Conflict; Government Consent. The execution and delivery by Performance
Guarantor of this Undertaking, and the performance of its obligations hereunder, do not contravene
or violate (i) its certificate or articles of incorporation or by-laws, (ii) any law, rule or
regulation applicable to it, (iii) any restrictions under any agreement, contract or instrument to
which it is a party or by which it or any of its property is bound, or (iv) any order, writ,
judgment, award, injunction or decree binding on or affecting it or its property, and do not result
in the creation or imposition of any Lien on assets of Performance Guarantor or its Subsidiaries
(except as created hereunder) except, in any case, where such contravention or violation could not
reasonably be expected to have a material adverse effect on its financial conditions or results of
operations or result in rendering any indebtedness evidenced thereby due
IX-4
and payable prior to its maturity or result in the creation or imposition of any Lien pursuant
to the terms of any such instrument or agreement upon any property (now owned or hereafter
acquired).
(d) Financial Statements. The consolidated financial statements of Performance
Guarantor and its consolidated Subsidiaries dated as of December 31, 2002 and March 31, 2003
heretofore delivered to Recipient have been prepared in accordance with generally accepted
accounting principles consistently applied and fairly present in all material respects the
consolidated financial condition and results of operations of Performance Guarantor and its
consolidated Subsidiaries as of such dates and for the periods ended on such dates. Since the
later of (i) March 31, 2003 and (ii) the last time this representation was made or deemed made, no
event has occurred which would or could reasonably be expected to have a material adverse effect on
its financial conditions or results of operations.
(e) Taxes. Performance Guarantor has filed all United States federal tax returns and
all other tax returns which are required to be filed and have paid all taxes due pursuant to said
returns or pursuant to any assessment received by Performance Guarantor or any of its Subsidiaries,
except such taxes, if any, as are being contested in good faith and as to which adequate reserves
have been provided. The United States income tax returns of Performance Guarantor have been
audited by the Internal Revenue Service through the fiscal year ended December 31, 2002. No
federal or state tax liens have been filed and no claims are being asserted with respect to any
such taxes. The charges, accruals and reserves on the books of Performance Guarantor in respect of
any taxes or other governmental charges are adequate.
(f) Litigation and Contingent Obligations. Except as disclosed in the filings made by
Performance Guarantor with the Securities and Exchange Commission, there are no actions, suits or
proceedings pending or, to the best of Performance Guarantor’s knowledge threatened against or
affecting Performance Guarantor or any of its properties, in or before any court, arbitrator or
other body, that could reasonably be expected to have a material adverse effect on (i) the
business, properties, condition (financial or otherwise) or results of operations of Performance
Guarantor and its Subsidiaries taken as a whole, (ii) the ability of Performance Guarantor to
perform its obligations under this Undertaking, or (iii) the validity or enforceability of any of
this Undertaking or the rights or remedies of Recipient hereunder. Performance Guarantor does not
have any material Contingent Obligations not provided for or disclosed in the financial statements
referred to in Section 6(d).
(g) Financial Covenants. Performance Guarantor shall comply at all time with the
covenants set forth in Sections 6.11 and 6.12 of the Credit Agreement as in effect on the date
hereof (without giving effect to any amendment, waiver, termination, supplement or other
modification thereof unless consented to by the Administrator and the Required Purchaser Agents).
Section 7. Subrogation; Subordination. Notwithstanding anything to the contrary
contained herein, until the Guaranteed Obligations are paid in full Performance Guarantor: (a)
will not enforce or otherwise exercise any right of subrogation to any of the rights of Recipient,
the Administrator, any Purchaser Agent or any Purchaser against Originator, (b) hereby waives all
rights of subrogation (whether contractual, under Section 509 of the United States Bankruptcy
IX-5
Code, at law or in equity or otherwise) to the claims of Recipient, the Administrator, each
Purchaser Agent and each Purchaser against Originator and all contractual, statutory or legal or
equitable rights of contribution, reimbursement, indemnification and similar rights and “claims”
(as that term is defined in the Federal Bankruptcy Code) which Performance Guarantor might now have
or hereafter acquire against Originator that arise from the existence or performance of Performance
Guarantor’s obligations hereunder, (c) will not claim any setoff, recoupment or counterclaim
against Originator in respect of any liability of Performance Guarantor to Originator and (d)
waives any benefit of and any right to participate in any collateral security which may be held by
Recipient, the Administrator, any Purchaser Agent or any Purchaser. The payment of any amounts due
with respect to any indebtedness of Originator now or hereafter owed to Performance Guarantor is
hereby subordinated to the prior payment in full of all of the Guaranteed Obligations. Performance
Guarantor agrees that, after the occurrence of any default in the payment or performance of any of
the Guaranteed Obligations, Performance Guarantor will not demand, xxx for or otherwise attempt to
collect any such indebtedness of Originator to Performance Guarantor until all of the Guaranteed
Obligations shall have been paid and performed in full. If, notwithstanding the foregoing
sentence, Performance Guarantor shall collect, enforce or receive any amounts in respect of such
indebtedness while any obligations are still unperformed or outstanding, such amounts shall be
collected, enforced and received by Performance Guarantor as trustee for Recipient (and its
assigns) and be paid over to Recipient (or its assigns) on account of the Guaranteed Obligations
without affecting in any manner the liability of Performance Guarantor under the other provisions
of this Undertaking. The provisions of this Section 7 shall be supplemental to and not in
derogation of any rights and remedies of Recipient under any separate subordination agreement which
Recipient may at any time and from time to time enter into with Performance Guarantor.
Section 8. Termination of Performance Undertaking. Performance Guarantor’s
obligations hereunder shall continue in full force and effect until all Aggregate Unpaids are
finally paid and satisfied in full and the Receivables Purchase Agreement is terminated; provided
that this Undertaking shall continue to be effective or shall be reinstated, as the case may be, if
at any time payment or other satisfaction of any of the Guaranteed Obligations is rescinded or must
otherwise be restored or returned upon the bankruptcy, insolvency, or reorganization of Originator
or otherwise, as though such payment had not been made or other satisfaction occurred, whether or
not Recipient (or its assigns) is in possession of this Undertaking. No invalidity, irregularity
or unenforceability by reason of the federal bankruptcy code or any insolvency or other similar
law, or any law or order of any government or agency thereof purporting to reduce, amend or
otherwise affect the Guaranteed Obligations shall impair, affect, be a defense to or claim against
the obligations of Performance Guarantor under this Undertaking.
Section 9. Effect of Bankruptcy. This Performance Undertaking shall survive the
insolvency of Originator and the commencement of any case or proceeding by or against Originator
under the Federal Bankruptcy Code or other federal, state or other applicable bankruptcy,
insolvency or reorganization statutes. No automatic stay under the Federal Bankruptcy Code with
respect to Originator or other federal, state or other applicable bankruptcy, insolvency or
reorganization statutes to which Originator is subject shall postpone the obligations of
Performance Guarantor under this Undertaking.
IX-6
Section 10. Setoff. Regardless of the other means of obtaining payment of any of the
Guaranteed Obligations, Recipient (and its assigns) is hereby authorized at any time and from time
to time, without notice to Performance Guarantor (any such notice being expressly waived by
Performance Guarantor) and to the fullest extent permitted by law, to set off and apply any
deposits and other sums against the obligations of Performance Guarantor under this Undertaking,
whether or not Recipient (or any such assign) shall have made any demand under this Undertaking and
although such obligations may be contingent or unmatured.
Section 11. Taxes. All payments to be made by Performance Guarantor hereunder shall
be made free and clear of any deduction or withholding. If Performance Guarantor is required by
law to make any deduction or withholding on account of tax or otherwise from any such payment, the
sum due from it in respect of such payment shall be increased to the extent necessary to ensure
that, after the making of such deduction or withholding, Recipient receive a net sum equal to the
sum which it would have received had no deduction or withholding been made.
Section 12. Further Assurances. Performance Guarantor agrees that it will from time
to time, at the request of Recipient (or its assigns), provide information relating to the business
and affairs of Performance Guarantor as Recipient may reasonably request. Performance Guarantor
also agrees to do all such things and execute all such documents as Recipient (or its assigns) may
reasonably consider necessary or desirable to give full effect to this Undertaking and to perfect
and preserve the rights and powers of Recipient hereunder.
Section 13. Successors and Assigns. This Performance Undertaking shall be binding
upon Performance Guarantor, its successors and permitted assigns, and shall inure to the benefit of
and be enforceable by Recipient and its successors and assigns. Performance Guarantor may not
assign or transfer any of its obligations hereunder without the prior written consent of each of
Recipient, the Administrator and each Purchaser Agent. Without limiting the generality of the
foregoing sentence, Recipient may assign or otherwise transfer the Agreements, any other documents
executed in connection therewith or delivered thereunder or any other agreement or note held by
them evidencing, securing or otherwise executed in connection with the Guaranteed Obligations, or
sell participations in any interest therein, to any other entity or other Person, and such other
entity or other Person shall thereupon become vested, to the extent set forth in the agreement
evidencing such assignment, transfer or participation, with all the rights in respect thereof
granted to the beneficiaries herein.
Section 14. Amendments and Waivers. No amendment or waiver of any provision of this
Undertaking nor consent to any departure by Performance Guarantor therefrom shall be effective
unless the same shall be in writing and signed by Recipient, the Administrator, each Purchaser
Agent and Performance Guarantor. No failure on the part of Recipient 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.
Section 15. Notices. All notices and other communications provided for hereunder
shall be made in writing and shall be addressed as follows: if to Performance Guarantor, at the
address set forth beneath its signature hereto, and if to Recipient, at the
IX-7
addresses set forth beneath its signature hereto, or at such other addresses as each of
Performance Guarantor or any Recipient may designate in writing to the other. Each such notice or
other communication shall be effective (1) if given by telecopy, upon the receipt thereof, (2) if
given by mail, three (3) Business Days after the time such communication is deposited in the mail
with first class postage prepaid or (3) if given by any other means, when received at the address
specified in this Section 15.
Section 16. GOVERNING LAW. THIS UNDERTAKING SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF NEW YORK.
Section 17. CONSENT TO JURISDICTION. EACH OF PERFORMANCE GUARANTOR AND RECIPIENT
HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW
YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS UNDERTAKING, THE AGREEMENTS OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION THEREWITH
OR DELIVERED THEREUNDER AND EACH OF PERFORMANCE GUARANTOR AND RECIPIENT HEREBY IRREVOCABLY AGREES
THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
Section 18. Bankruptcy Petition. Performance Guarantor hereby covenants and agrees
that, prior to the date that is one year and one day after the payment in full of all outstanding
senior Indebtedness of Conduit Purchaser, it will not institute against, or join any other Person
in instituting against, Conduit Purchaser any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings or other similar proceeding under the laws of the United States or any
state of the United States.
Section 19. Miscellaneous. This Undertaking constitutes the entire agreement of
Performance Guarantor with respect to the matters set forth herein. The rights and remedies herein
provided are cumulative and not exclusive of any remedies provided by law or any other agreement,
and this Undertaking shall be in addition to any other guaranty of or collateral security for any
of the Guaranteed Obligations. The provisions of this Undertaking are severable, and in any action
or proceeding involving any state corporate law, or any state or federal bankruptcy, insolvency,
reorganization or other law affecting the rights of creditors generally, if the obligations of
Performance Guarantor hereunder would otherwise be held or determined to be avoidable, invalid or
unenforceable on account of the amount of Performance Guarantor’s liability under this Undertaking,
then, notwithstanding any other provision of this Undertaking to the contrary, the amount of such
liability shall, without any further action by Performance Guarantor or Recipient, be automatically
limited and reduced to the highest amount that is valid and enforceable as determined in such
action or proceeding. Any provisions of this Undertaking which are prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without
IX-8
invalidating the remaining provisions hereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in any other
jurisdiction. Unless otherwise specified, references herein to “Section” shall mean a reference to
sections of this Undertaking.
IX-9
IN WITNESS WHEREOF, Performance Guarantor has caused this Undertaking to be executed and
delivered as of the date first above written.
Attention: X. X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
IX-10
EXHIBIT X
LIST OF RESPONSIBLE OFFICERS
RESPONSIBLE OFFICERS
|
|
|
|
|
entity |
|
officers |
|
|
name |
|
title |
AmerisourceBergen Drug
|
|
R. Xxxxx Xxxx
|
|
Chief Executive Officer |
Corporation
|
|
Xxxxxx X. Xxxxxx
|
|
President |
|
|
Xxxxxxx X. XxXxxxxxx
|
|
Executive Vice President & Chief |
|
|
Xxxxx X. Xxx
|
|
Financial Officer |
|
|
Xxxx X. Xxxx
|
|
Senior Vice President, Operations |
|
|
Xxx X. Xxxxxxx
|
|
Senior Vice President, General |
|
|
X.X. Xxxxx
|
|
Counsel & Secretary |
|
|
Xxxxx X. Xxxxxx
|
|
Vice President & Corporate Controller |
|
|
Xxxxxx X. Xxxxx
|
|
Vice President & Corporate Treasurer |
|
|
|
|
Assistant Secretary |
|
|
|
|
Assistant Secretary |
|
|
|
|
|
|
|
name
|
|
title |
|
|
|
|
|
AmeriSource Receivables
|
|
R. Xxxxx Xxxx
|
|
President |
Financial Corporation
|
|
Xxxxxxx X. XxXxxxxxx
|
|
Executive Vice President & Chief |
|
|
Xxxx X. Xxxx
|
|
Financial Officer |
|
|
Xxx X. Xxxxxxx
|
|
Senior Vice President, General |
|
|
X.X. Xxxxx
|
|
Counsel & Secretary |
|
|
Xxxxx X. Xxxxxx
|
|
Vice President & Corporate Controller |
|
|
Xxxxxx X. Xxxxx
|
|
Vice President & Corporate Treasurer |
|
|
|
|
Assistant Secretary |
|
|
|
|
Assistant Secretary |
X-1
EXHIBIT XI
FORM OF INTERIM SETTLEMENT REPORT
Form of Interim Settlement Report
Amerisource Receivables Financial Corporation
For the Period Ended:
1/00/00
I. Portfolio Information
|
|
|
|
|
|
|
|
|
1. Reported Ending Weekly A/R Balance |
|
|
|
|
|
$ |
0 |
|
2. Deduct: Ineligibles Receivables |
|
From most recent monthly report |
|
$ |
0 |
|
3. Eligible Receivables [(1 - 2)]: |
|
|
|
|
|
$ |
0 |
|
4. Deduct: Excess Concentrations |
|
|
|
|
|
$ |
0 |
|
5. Net Pool Balance [(3) — (4)]: |
|
|
|
|
|
$ |
0 |
|
6. Required Reserve % |
|
From most recent monthly report |
|
|
0.0 |
% |
7. Required Reserve $ [(5) x (6)]: |
|
|
|
|
|
$ |
0 |
|
8. Borrowing Availability [(5) — (7)] |
|
|
|
|
|
$ |
0 |
|
9. CP Outstanding: |
|
|
|
|
|
$ |
0 |
|
10. Asset Interest [(9 + 7) / (5)] < 100%: |
|
|
|
|
|
$ |
0 |
|
11. Additional Availability or (Required Paydown) |
|
|
|
|
|
$ |
0 |
|
The undersigned hereby represents and warrants that the foregoing is a true and
accurate accounting with respect to outstanding receivables as of
accordance with the Receivables Purchase Agreement dated and that all
representations and warranties related to such Agreement are restated and reaffirmed.
XI-1
EXHIBIT XII
FORM OF REDUCTION NOTICE
, _____
Bank of America, National Association, as Administrator
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: ABCP Conduit Group
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
[Address to each Purchaser Agent]
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Receivables Purchase Agreement, dated as
of April 29, 2010 (as amended, supplemented or otherwise modified, the “Receivables Purchase
Agreement”), among Amerisource Receivables Financial Corporation, as Seller, AmerisourceBergen
Drug Corporation, as Servicer, the various purchaser groups from time to time party thereto, and
Bank of America, National Association, as Administrator. Capitalized terms used in this Reduction
Notice and not otherwise defined herein shall have the meanings assigned thereto in the Receivables
Purchase Agreement.
This letter constitutes a Reduction Notice pursuant to Section 1.3 of the Receivables
Purchase Agreement. The Seller desires to reduce the Aggregate Invested Amount on ,
_____
3 by the application of cash to pay Aggregate Invested Amount and Yield to accrue
(until such cash can be used to pay commercial paper notes) with respect to such Aggregate Invested
Amount, together with all costs related to such reduction of Aggregate Invested Amount, as follows:
|
|
|
|
|
|
|
(a) |
|
Reduction Amount: $ |
|
|
(b)
|
|
(X)
|
|
Ratable
Share4: |
|
|
|
|
(i)
|
|
Bank of America, National Association’s
Purchaser Group:
|
|
$ |
|
|
|
3 |
|
Notice must be given at least one Business Day prior
to the requested reduction date. |
|
4 |
|
For reductions based on the Ratable Share. |
XII-1
|
|
|
|
|
|
|
|
|
(ii)
|
|
Liberty Street Funding LLC’s
Purchaser Group:
|
|
$ |
|
|
(iii)
|
|
Market Street Funding LLC’s
Purchaser Group:
|
|
$ |
|
|
(iv)
|
|
Victory Receivables Corporation’s
Purchaser Group:
|
|
$ |
|
|
(v)
|
|
Xxxxx Fargo Bank, National Association’s
Purchaser Group:
|
|
$ |
|
|
(vi)
|
|
Working Capital Management Co., LP’s
Purchaser Group:
|
|
$ |
(X) |
|
Accordion Ratable
Share5: |
|
|
|
|
(i)
|
|
Bank of America, National Association’s
Purchaser Group:
|
|
$ |
|
|
(ii)
|
|
Liberty Street Funding LLC’s
Purchaser Group:
|
|
$ |
|
|
(iii)
|
|
Market Street Funding LLC’s
Purchaser Group:
|
|
$ |
|
|
(iv)
|
|
Victory Receivables Corporation’s
Purchaser Group:
|
|
$ |
|
|
(v)
|
|
Xxxxx Fargo Bank, National Association’s
Purchaser Group:
|
|
$ |
|
|
(vi)
|
|
Working Capital Management Co., LP’s
Purchaser Group:
|
|
$ |
|
|
|
5 |
|
For reductions based on the Accordion Ratable Share. |
XI-2
IN WITNESS WHEREOF, the undersigned has caused this Reduction Notice to be executed by its
duly authorized officer as of the date first above written.
|
|
|
|
|
|
AMERISOURCE RECEIVABLES FINANCIAL CORPORATION
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
XI-3
EXHIBIT XIII
Form of Legend
“THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD PURSUANT TO A RECEIVABLES SALE AGREEMENT,
DATED AS OF JULY 10, 2003, AS THE SAME MAY FROM TO TIME TO TIME BE AMENDED, RESTATED, SUPPLEMENTED
OR OTHERWISE MODIFIED, BETWEEN AMERISOURCEBERGEN DRUG CORPORATION, AS ORIGINATOR, AND AMERISOURCE
RECEIVABLES FINANCIAL CORPORATION, AS BUYER; AND UNDIVIDED, FRACTIONAL OWNERSHIP INTERESTS IN THE
RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO VARIOUS PURCHASERS PURSUANT TO AN AMENDED AND
RESTATED RECEIVABLES PURCHASE AGREEMENT, DATED AS OF APRIL 29, 2010, AS THE SAME MAY FROM TO TIME
TO TIME BE AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED, AMONG AMERISOURCE RECEIVABLES
FINANCIAL CORPORATION, AS SELLER, AMERISOURCEBERGEN DRUG CORPORATION, AS INITIAL SERVICER, THE
VARIOUS PURCHASER GROUPS FROM TIME TO TIME PARTY THERETO, AND BANK OF AMERICA, NATIONAL
ASSOCIATION, AS ADMINISTRATOR.”
XIII-1
EXHIBIT XIV
FORM OF PURCHASE LIMIT INCREASE REQUEST
___________ , _____
Bank of America, National Association, as Administrator
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Attention: ABCP Conduit Group
Facsimile: (000) 000-0000
[Address to each Purchaser Agent] — [PURCHASER AGENTS TO PROVIDE]
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Receivables Purchase Agreement, dated as
of April 29, 2010 (as heretofore amended or supplemented, the “Receivables Purchase
Agreement”), among Amerisource Receivables Finance Corporation, as Seller, AmerisourceBergen
Drug Corporation, as Servicer, the various purchaser groups from time to time party thereto, and
Bank of America, National Association, as Administrator. Capitalized terms used in this Purchase
Limit Increase Request and not otherwise defined herein shall have the meanings assigned thereto in
the Receivables Purchase Agreement.
This letter constitutes a Purchase Limit Increase Request pursuant to Section 1.1(b)
of the Receivables Purchase Agreement. The Seller desires to increase the Purchase Limit and
respective Commitments of each Purchaser Group on
_____
,
_____
6 to the following amounts:
(a) Purchase Limit: $
_____
(b) Ratable Share of Each Purchaser Group:
|
(i) |
|
Bank of America, National Association: $
_____
|
|
|
(ii) |
|
Liberty Street Funding LLC: $
_____
|
|
|
(iii) |
|
Market Street Funding LLC: $
_____
|
|
|
(iv) |
|
Victory Receivables Corporation: $
_____
|
|
|
|
6 |
|
Notice must be given at least ten Business Days prior
to the requested increase, and must be in a minimum amount of $50,000,000. |
XIV-1
(v) Xxxxx Fargo Bank, National Association: $
_____
(vi) Working Capital Management Co., LP: $
_____
Seller hereby represents and warrants as of the date hereof, and as of the date of this
increase, as follows:
(i) the representations and warranties contained in Section V of the Receivables
Purchase Agreement are correct in all material respects on and as of such dates as though made on
and as of such dates and shall be deemed to have been made on such dates; and
(ii) no event has occurred and is continuing, or would result from the increase proposed
hereby, that constitutes an Amortization Event or an Unmatured Amortization Event.
Each Purchaser Agent shall notify the Seller and the Administrator in writing whether it
consents to this increase request within ten (10) Business Days; provided that if any Purchaser
Agent fails to so notify the Seller or the Administrator, the applicable Purchasers shall be deemed
to have refused to consent to this increase request.
XIV-2
IN WITNESS WHEREOF, the undersigned has caused this Purchase Limit Increase Request to be
executed by its duly authorized officer as of the date first above written.
|
|
|
|
|
|
AMERISOURCE RECEIVABLES FINANCIAL CORPORATION
|
|
|
By: |
|
|
|
|
Name Printed: |
|
|
|
Title: |
|
|
|
XIV-3
EXHIBIT XV
FORM OF PURCHASE LIMIT DECREASE NOTICE
___________ , _____
Bank of America, National Association, as Administrator
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Attention: ABCP Conduit Group
Facsimile: (000) 000-0000
[Address to each Purchaser Agent] — [PURCHASER AGENTS TO PROVIDE]
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Receivables Purchase Agreement, dated as
of April 29, 2010 (as heretofore amended or supplemented, the “Receivables Purchase
Agreement”), among Amerisource Receivables Finance Corporation, as Seller, AmerisourceBergen
Drug Corporation, as Servicer, the various purchaser groups from time to time party thereto, and
Bank of America, National Association, as Administrator. Capitalized terms used in this Purchase
Limit Decrease Notice and not otherwise defined herein shall have the meanings assigned thereto in
the Receivables Purchase Agreement.
This letter constitutes a Purchase Limit Decrease Notice pursuant to Section 1.1(b) of
the Receivables Purchase Agreement. The Seller desires to decrease the Purchase Limit and
respective Commitments of each Purchaser Group on
_____
,
_____
7 to the following amounts:
(a) Purchase Limit: $
_____
(b) Ratable Share of Each Purchaser Group:
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Bank of America, National Association: $
_____
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(ii) |
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Liberty Street Funding LLC: $
_____
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(iii) |
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Market Street Funding LLC: $
_____
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(iv) |
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Victory Receivables Corporation: $
_____
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Notice must be given at least ten Business Days prior
to the requested decrease, and must be in a minimum amount of $50,000,000. |
XV-1
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(v) |
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Xxxxx Fargo Bank, National Association: $
_____
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(vi) |
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Working Capital Management Co., LP: $
_____
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Seller hereby represents and warrants as of the date hereof, and as of the date of this
decrease, as follows:
(i) the representations and warranties contained in Section V of the Receivables
Purchase Agreement are correct in all material respects on and as of such dates as though made on
and as of such dates and shall be deemed to have been made on such dates; and
(ii) no event has occurred and is continuing, or would result from the increase proposed
hereby, that constitutes an Amortization Event or an Unmatured Amortization Event.
XV-2
IN WITNESS WHEREOF, the undersigned has caused this Purchase Limit Decrease Notice to be
executed by its duly authorized officer as of the date first above written.
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AMERISOURCE RECEIVABLES FINANCIAL CORPORATION
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By: |
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Name: |
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Title: |
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XV-3
EXHIBIT XVI
FORM OF ACCORDION CONFIRMATION
___________ , _____
Bank of America, National Association, as Administrator
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: ABCP Conduit Group
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
[Address to each Purchaser Agent]
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Receivables Purchase Agreement, dated as
of April 29, 2010 (as heretofore amended or supplemented, the “Receivables Purchase
Agreement”), among Amerisource Receivables Finance Corporation, as Seller, AmerisourceBergen
Drug Corporation, as Servicer, the various purchaser groups from time to time party thereto, and
Bank of America, National Association, as Administrator. Capitalized terms used in this Accordion
Confirmation and not otherwise defined herein shall have the meanings assigned thereto in the
Receivables Purchase Agreement.
This letter constitutes an Accordion Confirmation pursuant to Section 1.1(b) of the
Receivables Purchase Agreement. This Accordion Confirmation sets forth the Accordion Group
Commitments as consented to by such Purchaser Group’s Purchaser Agent for the Accordion Period
beginning on _____ and ending on _____ , and the resulting changes in the Purchase Limit and Group
Commitments for such period.
XVI-1
(a) Group Commitments
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Non-Accordion |
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Accordion |
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Group |
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Group |
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Group |
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Purchaser Group |
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Commitment |
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Commitment |
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Commitment |
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Bank of America, National Association |
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$ |
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$ |
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Liberty Street Funding LLC |
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$ |
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$ |
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Market Street Funding LLC |
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$ |
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$ |
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Victory Receivables Corporation |
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$ |
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$ |
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Xxxxx Fargo Bank, National Association |
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$ |
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$ |
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Working Capital Management Co., LP |
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$ |
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$ |
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(b) Ratable Share and Accordion Ratable Share of Each Purchaser Group, expressed as a percentage:
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Accordion Ratable |
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Purchaser Group |
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Ratable Share |
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Share |
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Bank of America, National Association |
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Liberty Street Funding LLC |
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Market Street Funding LLC |
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Victory Receivables Corporation |
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Xxxxx Fargo Bank, National Association |
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Working Capital Management Co., XX |
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XXX-2
(c) Purchase Limit: $__________________
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(i) |
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Non-Accordion Purchase Limit: $
_____
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(ii) |
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Accordion Purchase Limit: $
_____
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Seller hereby represents and warrants as of the date hereof, and as of the date of this
increase, as follows:
(i) the representations and warranties contained in Section V of the Receivables
Purchase Agreement are correct in all material respects on and as of such dates as though made on
and as of such dates and shall be deemed to have been made on such dates; and
(ii) no event has occurred and is continuing, or would result from the increase proposed
hereby, that constitutes an Amortization Event or an Unmatured Amortization Event.
XVI-3
IN WITNESS WHEREOF, the undersigned has caused this Accordion Confirmation to be executed by
its duly authorized officer as of the date first above written.
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AMERISOURCE RECEIVABLES FINANCIAL
CORPORATION, as Seller
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By: |
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Name: |
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Title: |
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AMERISOURCEBERGEN DRUG
CORPORATION, as initial Servicer
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By: |
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Name: |
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Title: |
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XVI-4
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BANK OF AMERICA, NATIONAL
ASSOCIATION, as Administrator
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By: |
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Name: |
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Title: |
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XVI-5
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[PURCHASER AGENT FOR INCREASING
PURCHASER GROUP]
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By: |
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Name: |
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Title: |
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XVI-6
SCHEDULE A
DOCUMENTS TO BE DELIVERED
ON OR PRIOR TO THE CLOSING DATE
1. Executed copies of the Agreement, duly executed by the parties thereto.
2. Copy of the Resolutions of the Board of Directors of each Seller Party and Performance
Guarantor certified by its Secretary authorizing such Person’s execution, delivery and performance
of this Agreement and the other documents to be delivered by it hereunder.
3. Articles or Certificate of Incorporation of each Seller Party and Performance Guarantor
certified by the Secretary of State of its jurisdiction of incorporation on or within thirty (30)
days prior to the initial Purchase.
4. Good Standing Certificate for each Seller Party and Performance Guarantor issued by the
Secretaries of State of its state of incorporation and each jurisdiction where it has material
operations, each of which is listed below:
a. Seller: Delaware
b. Servicer: Delaware
c. Performance Guarantor: Delaware
5. A certificate of the Secretary of each Seller Party and Performance Guarantor certifying
(i) the names and signatures of the officers authorized on its behalf to execute this Agreement and
any other documents to be delivered by it hereunder and (ii) a copy of such Person’s By-Laws.
6. A favorable opinion of legal counsel for the Seller Parties and Performance Guarantor
reasonably acceptable to the Administrator and each Purchaser Agent which addresses the following
matters and such other matters as the Administrator and each Purchaser Agent may reasonably
request:
(a) Each of the Seller Parties and Performance Guarantor is a corporation duly organized,
validly existing, and in good standing under the laws of the state of Delaware.
(b) Each of the Seller Parties and Performance Guarantor has all requisite authority to
conduct its business in each jurisdiction where failure to be so qualified would have a material
adverse effect on such entity’s business.
(c) The execution and delivery by each of the Seller Parties and Performance Guarantor of the
Transaction Document to which it is a party and its performance of its obligations thereunder have
been duly authorized by all necessary organizational action and proceedings on the part of such
entity and will not:
(i) require any action by or in respect of, or filing with, any governmental body,
agency or official (other than the filing of UCC financing statements);
Schedule A-1
(ii) contravene, or constitute a default under, any provision of applicable law or
regulation or of its articles or certificate of incorporation or bylaws or of any agreement,
judgment, injunction, order, decree or other instrument binding upon such entity; or
(iii) result in the creation or imposition of any Lien on assets of such entity or any
of its Subsidiaries (except as contemplated by the Transaction Documents).
(d) Each of the Transaction Documents to which each of the Seller Parties and Performance
Guarantor is a party has been duly executed and delivered by such entity and constitutes the
legally valid, and binding obligation of such entity enforceable in accordance with its terms,
except to the extent the enforcement thereof may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors’ rights generally and subject also to the availability
of equitable remedies if equitable remedies are sought.
(e) Neither of the Seller Parties is an “investment company” within the meaning of the
Investment Company Act of 1940, as amended.
7. The Fee Letter.
8. A Settlement Report as of March 31, 2010.
Schedule A-2