SECOND AMENDED AND RESTATED PERFORMANCE GUARANTY
Exhibit 10.25.3
SECOND AMENDED AND RESTATED
PERFORMANCE GUARANTY
PERFORMANCE GUARANTY
This Second Amended and Restated Performance Guaranty (this “Guaranty”), dated
as of June 20, 2007, is executed by Cardinal Health, Inc., an Ohio corporation (“Cardinal”
or the “Performance Guarantor”) in favor of Cardinal Health Funding, LLC, a Nevada limited
liability company (together with its successors and assigns, “Beneficiary”).
RECITALS
1. Xxxxxxx Capital, LLC, a Nevada limited liability company (“Xxxxxxx”), has entered
into (a) that certain Second Amended and Restated Receivables Purchase and Sale Agreement (as
amended, restated, supplemented or otherwise modified from time to time, the “A&R Xxxxxxx
RPA”), dated as of May 21, 2004, by and between Xxxxxxx and Cardinal Health 110, Inc., a
Delaware corporation (“CH 110”), formerly known as Xxxxxxxx Distribution Corporation, and
as successor by merger to Cardinal Syracuse, Inc., a New York corporation, Ohio Valley-Clarksburg,
Inc., a Delaware corporation, Cardinal Health 106, Inc., a Massachusetts corporation, and Cardinal
Health 103, Inc., a Mississippi corporation, and (b) that certain Receivables Purchase and Sale
Agreement (as amended, restated, supplemented or otherwise modified from time to time, the “New
Xxxxxxx RPA” and, together with the A&R Xxxxxxx RPA, the “Xxxxxxx RPAs”), dated as of
the date hereof, by and between Xxxxxxx and Cardinal Health 411, Inc., an Ohio corporation (“CH
411” and, together with CH 110, the “Originators” and, together with Xxxxxxx, the
“Transaction Parties”), in each case pursuant to which each Originator, subject to the
terms and conditions thereof, has sold and will continue to sell (in the case of CH 110) and is
selling (in the case of CH 411) all of its right, title and interest in and to its accounts
receivable.
2. Xxxxxxx and Beneficiary have entered into an Amended and Restated Receivables Sale
Agreement, dated as of May 21, 2004 (as amended, restated or otherwise modified from time to time,
the “Receivables Sale Agreement”), pursuant to which Xxxxxxx, subject to the terms and
conditions contained therein, has sold and will continue to sell its right, title and interest in
and to all of the accounts receivable purchased by Xxxxxxx under each Xxxxxxx RPA to Beneficiary.
In turn, Beneficiary has entered into a Second Amended and Restated Receivables Purchase Agreement,
dated as of October 31, 2006, by and among Beneficiary, Xxxxxxx, as Servicer, the Conduits party
thereto, the Financial Institutions party thereto, the Managing Agents party thereto and JPMorgan
Chase Bank, N.A. (successor by merger to Bank One, NA (Main Office Chicago)), as the Agent (as
amended, restated or otherwise modified, the “Receivables Purchase Agreement” and, together
with each Xxxxxxx RPA and the Receivables Sale Agreement, the “Agreements”), pursuant to
which Beneficiary has sold and will continue to sell undivided interests in the accounts receivable
it purchases from Xxxxxxx under the Receivables Sale Agreement.
3. Xxxxxxx, Beneficiary, the Conduits, the Financial Institutions, the Managing Agents and the
Agent have entered into that certain Omnibus Amendment (the “Omnibus Amendment”), dated as
of the date hereof, pursuant to which the Receivables Sale Agreement and Receivables Purchase
Agreement were amended in connection with the New Xxxxxxx RPA.
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PERFORMANCE GUARANTY
4. Each Originator and Xxxxxxx is a Subsidiary of Performance Guarantor and Performance
Guarantor has received and is expected to continue to receive substantial direct and indirect
benefits from the sale of the accounts receivable by the Originators to Xxxxxxx under the
applicable Xxxxxxx RPA and by Xxxxxxx to Beneficiary under the Receivables Sale Agreement (which
benefits are hereby acknowledged).
5. As an inducement for Beneficiary to enter into the Omnibus Amendment, which amendment
contemplates, among other things, the addition of CH 411 as an Originator party to the Transaction
Documents, Performance Guarantor has agreed to guaranty the due and punctual performance by each
Originator of its obligations under the applicable Xxxxxxx RPA and by Xxxxxxx of its obligations
under the Receivables Sale Agreement and the Receivables Purchase Agreement.
6. Performance Guarantor wishes to guaranty the due and punctual performance by the
Originators and Xxxxxxx of their respective 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 Receivables Purchase Agreement. In addition:
“Obligations” means, collectively, (i) all covenants, agreements, terms, conditions
and indemnities to be performed and observed by each Originator under and pursuant to the
applicable Xxxxxxx RPA and each other document executed and delivered by each such Originator
pursuant to such Xxxxxxx RPA, including, without limitation, the due and
punctual payment of all sums which are or may become due and owing by each such Originator under
such Xxxxxxx RPA, whether for fees, expenses (including counsel fees), indemnified amounts or
otherwise, whether upon any termination or for any other reason, (ii) all covenants, agreements,
terms, conditions and indemnities to be performed and observed by Xxxxxxx under and pursuant to the
Receivables Sale Agreement and each other document executed and delivered by Xxxxxxx pursuant to
the Receivables Sale Agreement, including, without limitation, the due and
punctual payment of all sums which are or may become due and owing by Xxxxxxx under the Receivables
Sale Agreement, whether for fees, expenses (including counsel fees), indemnified amounts or
otherwise, whether upon any termination or for any other reason and (iii) all obligations of
Xxxxxxx (1) as Servicer under the Receivables Purchase Agreement, or (2) which arise pursuant to
Sections 8.2, 8.3 or 14.4(a) of the Receivables Purchase Agreement as a result of its
termination as Servicer.
Section 2. Guaranty of Performance of Obligations. Performance Guarantor hereby
guarantees to Beneficiary, the full and punctual payment and performance by each Transaction Party
of its respective Obligations. This Guaranty is an absolute, unconditional and continuing guaranty
of the full and punctual performance of all of the Obligations of the Transaction Parties under the
Agreements and each other document executed and delivered by each such Transaction Party pursuant
to the Agreements and is in no way conditioned upon any requirement that Beneficiary first attempt
to collect any amounts owing by any Transaction Party
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to Beneficiary, the Agent or the Purchasers from any other Person or resort to any collateral
security, any balance of any deposit account or credit on the books of Beneficiary, the Agent or
any Purchaser in favor of any Transaction Party or any other Person or other means of obtaining
payment. Should any Transaction Party default in the payment or performance of any of the
Obligations, Beneficiary (or its assigns) may cause the immediate performance by Performance
Guarantor of the Obligations and cause any payment Obligations to become forthwith due and payable
to Beneficiary (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 Guaranty is not a guarantee of the collection of any of the
Receivables and Performance Guarantor shall not be responsible for any Obligations to the extent
the failure to perform such Obligations by any Transaction Party 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 any Transaction Party from performing
in full its Obligations under any Agreement 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 Beneficiary (and
its assigns), forthwith upon demand in funds immediately available to Beneficiary, all reasonable
costs and expenses (including court costs and legal expenses) incurred or expended by Beneficiary
in connection with the Obligations, this Guaranty and the enforcement thereof, together with
interest on amounts recoverable under this Guaranty 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 plus 2% per annum, such rate of interest changing when and as the
Prime Rate changes.
Section 4. Waivers by Performance Guarantor. Performance Guarantor waives notice of
acceptance of this Guaranty, notice of any action taken or omitted by Beneficiary (or its assigns)
in reliance on this Guaranty, and any requirement that Beneficiary (or its assigns) be diligent or
prompt in making demands under this Guaranty, giving notice of any Termination Event, Amortization
Event, other default or omission by any Transaction Party or asserting any other rights of
Beneficiary under this Guaranty. Performance Guarantor warrants that it has adequate means to
obtain from each Transaction Party, on a continuing basis, information concerning the financial
condition of such Transaction Party, and that it is not relying on Beneficiary 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 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. Beneficiary (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 Guaranty, to deal
with each Transaction Party and with each other party who now is or after the date hereof becomes
liable in any manner for any of the Obligations, in such manner as Beneficiary in its sole
discretion deems fit, and to this end Performance Guarantor agrees that the validity and
enforceability of this Guaranty, including without limitation, the
provisions of Section 8 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 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 Obligations
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or any part thereof or any agreement relating thereto, or any collateral securing the
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 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 Obligations or any part thereof; (e) the enforceability or validity
of the Obligations or any part thereof or the genuineness, enforceability or validity of any
agreement relating thereto or with respect to the Obligations or any part thereof; (f) the
application of payments received from any source to the payment of any payment Obligations of any
Transaction Party or any part thereof or amounts which are not covered by this Guaranty even though
Beneficiary (or its assigns) might lawfully have elected to apply such payments to any part or all
of the payment Obligations of such Transaction Party or to amounts which are not covered by this
Guaranty; (g) the existence of any claim, setoff or other rights which Performance Guarantor may
have at any time against any Transaction Party in connection herewith or any unrelated transaction;
(h) any assignment or transfer of the Obligations or any part thereof; or (i) any failure on the
part of any Transaction Party 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 Obligations Against Transaction Parties.
Notwithstanding (a) any change of ownership of any Transaction Party or the insolvency, bankruptcy
or any other change in the legal status of any Transaction Party; (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 Obligations;
(c) the failure of any Transaction Party 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 required in connection with the Obligations or this Guaranty, or to take any
other action required in connection with the performance of all obligations pursuant to the
Obligations or this Guaranty; or (d) if any of the moneys included in the Obligations have become
irrecoverable from any Transaction Party for any other reason other than final payment in full of
the payment Obligations in accordance with their terms, this Guaranty shall nevertheless be binding
on Performance Guarantor. This Guaranty shall be in addition to any other guaranty or other
security for the 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 Obligations is stayed upon the insolvency, bankruptcy or reorganization of any Transaction
Party or for any other reason with respect to any Transaction Party, all such amounts then due and
owing with respect to the Obligations under the terms of the Agreements, or any other agreement
evidencing, securing or otherwise executed in connection with the Obligations, shall be immediately
due and payable by Performance Guarantor.
Section 6. Representations and Warranties. Performance Guarantor hereby represents
and warrants to Beneficiary that:
(a) Existence and Standing. Performance Guarantor is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of incorporation, and has
all corporate power and all governmental licenses, authorizations,
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consents and approvals required to carry on its business in each jurisdiction in which its
business is conducted.
(b) Authorization, Execution and Delivery; Binding Effect. Performance Guarantor has
the corporate power and authority and legal right to execute and deliver this Guaranty, perform its
obligations hereunder and consummate the transactions herein contemplated. The execution and
delivery by Performance Guarantor of this Guaranty, the performance of its obligations and
consummation of the transactions contemplated hereunder have been duly authorized by proper
corporate proceedings, and Performance Guarantor has duly executed and delivered this Guaranty.
This Guaranty constitutes the legal, valid and binding obligation of Performance Guarantor
enforceable against Performance Guarantor in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or
limiting creditors’ rights generally.
(c) No Conflict; Government Consent. The execution and delivery by Performance
Guarantor of this Guaranty and the performance of its obligations hereunder are within its
corporate powers, have been duly authorized by all necessary corporate action, do not contravene or
violate (i) its 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 Adverse Claim on assets of Performance Guarantor.
(d) Financial Statements. The consolidated financial statements of Performance
Guarantor and its consolidated Subsidiaries dated as of June 30, 2006 as modified by the
Performance Guarantor’s 8-K’s filed April 26, 2007 and June 15, 2007, heretofore delivered to
Beneficiary 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 June 30, 2006 and for the period ended on such date. Since the later of (i) June 30, 2006, 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 except as disclosed in the
Performance Guarantor’s 10-Q’s and 8-K’s filed between July 1, 2006 and May 31, 2007.
(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 June 30, 2000, and such
audits have been closed. 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
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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 Guaranty, or (iii) the validity or enforceability
of any of this Guaranty or the rights or remedies of Beneficiary hereunder. Performance Guarantor
is not in default with respect to any order of any court, arbitrator or governmental body and does
not have any material contingent obligations not provided for or disclosed in the financial
statements referred to in Section 6(d).
Section 7. Maintenance of Minimum Net Worth. Until the Obligations are paid in full,
Performance Guarantor covenants to Beneficiary that Performance Guarantor will not permit its Net
Worth (as defined below) to be less than $4,100,000,000 at any time. For purposes of this
Section 7, “Net Worth” means, at any time, the consolidated stockholder’s equity of
Performance Guarantor and its Subsidiaries calculated on a consolidated basis as of such time in
accordance with generally accepted accounting principles in effect in the United States from time
to time.
Section 8. Subrogation; Subordination. Notwithstanding anything to the contrary
contained herein, until the Obligations are paid in full Performance Guarantor: (a) will not
enforce or otherwise exercise any right of subrogation to any of the rights of Beneficiary, the
Agent or any Purchaser against any Transaction Party, (b) hereby waives all rights of subrogation
(whether contractual, under Section 509 of the United States Bankruptcy Code, at law, in equity or
otherwise) to the claims of Beneficiary, the Agent and the Purchasers against each Transaction
Party and all contractual, statutory, legal or equitable rights of contribution, reimbursement,
indemnification and similar rights and “claims” (as that term is defined in the United States
Bankruptcy Code) which Performance Guarantor might now have or hereafter acquire against any
Transaction Party that arise from the existence or performance of Performance Guarantor’s
obligations hereunder, (c) will not claim any setoff, recoupment or counterclaim against any
Transaction Party in respect of any liability of Performance Guarantor to such Transaction Party
and (d) waives any benefit of and any right to participate in any collateral security which may be
held by Beneficiaries, the Agent or the Purchasers. The payment of any amounts due with respect to
any indebtedness of any Transaction Party now or hereafter owed to Performance Guarantor is hereby
subordinated to the prior payment in full of all of the Obligations. Performance Guarantor agrees
that, after the occurrence of any default in the payment or performance of any of the Obligations,
Performance Guarantor will not demand, xxx for or otherwise attempt to collect any such
indebtedness of any Transaction Party to Performance Guarantor until all of the 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 Beneficiary (and its assigns) and be paid over to
Beneficiary (or its assigns) on account of the Obligations without affecting in any manner the
liability of Performance Guarantor under the other provisions of this Guaranty. The provisions of
this Section 8 shall be supplemental to and not in derogation of any rights and remedies of
Beneficiary under any separate subordination agreement which Beneficiary may at any time and from
time to time enter into with Performance Guarantor.
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Section 9. Termination of Performance Guaranty. Performance Guarantor’s obligations
hereunder shall continue in full force and effect until all Obligations are finally paid and
satisfied in full and the Receivables Purchase Agreement is terminated, provided, that this
Guaranty 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 Obligations is rescinded or must otherwise be restored
or returned upon the bankruptcy, insolvency, or reorganization of any Transaction Party or
otherwise, as though such payment had not been made or other satisfaction occurred, whether or not
Beneficiary (or its assigns) is in possession of this Guaranty. 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 Obligations shall impair, affect, be a defense to or claim against the obligations of
Performance Guarantor under this Guaranty.
Section 10. Effect of Bankruptcy. This Performance Guaranty shall survive the
insolvency of each Transaction Party and the commencement of any case or proceeding by or against
any Transaction Party 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 any Transaction Party or other federal, state or other applicable bankruptcy,
insolvency or reorganization statutes to which any Transaction Party is subject shall postpone the
obligations of Performance Guarantor under this Guaranty.
Section 11. Setoff. Regardless of the other means of obtaining payment of any of the
Obligations, Beneficiary (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 Guaranty, whether or not
Beneficiary (or any such assign) shall have made any demand under this Guaranty and although such
Obligations may be contingent or unmatured.
Section 12. 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, Beneficiary receive a net sum equal to the
sum which they would have received had no deduction or withholding been made.
Section 13. Further Assurances. Performance Guarantor agrees that it will from time
to time, at the request of Beneficiary (or its assigns), provide information relating to the
business and affairs of Performance Guarantor as Beneficiary may reasonably request. Performance
Guarantor also agrees to do all such things and execute all such documents as Beneficiary (or its
assigns) may reasonably consider necessary or desirable to give full effect to this Guaranty and to
perfect and preserve the rights and powers of Beneficiary hereunder.
Section 14. Successors and Assigns. This Performance Guaranty shall be binding upon
Performance Guarantor, its successors and permitted assigns, and shall inure to the benefit of and
be enforceable by Beneficiary and its successors and assigns. Performance Guarantor may not assign
or transfer any of its obligations hereunder without the prior written
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consent of each of Beneficiary and the Agent. Without limiting the generality of the foregoing
sentence, Beneficiary 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 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 15. Amendments and Waivers. No amendment or waiver of any provision of this
Guaranty nor consent to any departure by Performance Guarantor therefrom shall be effective unless
the same shall be in writing and signed by Beneficiary, the Agent and Performance Guarantor. No
failure on the part of Beneficiary 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 16. 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 Beneficiary, at the address set forth
beneath its signature hereto, or at such other addresses as each of Performance Guarantor or any
Beneficiary 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 16.
Section 17. GOVERNING LAW. THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS.
Section 18. CONSENT TO JURISDICTION. EACH OF PERFORMANCE GUARANTOR AND BENEFICIARY
HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR
ILLINOIS STATE COURT SITTING IN CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS GUARANTY, THE AGREEMENTS OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION THEREWITH OR DELIVERED
THEREUNDER AND EACH OF PERFORMANCE GUARANTOR AND BENEFICIARY 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 19. 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 any Conduit or any Funding Source that is a special purpose bankruptcy
remote entity, it will not institute against, or join any other Person in instituting against, any
Conduit or any such entity any bankruptcy, reorganization, arrangement, insolvency
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or liquidation proceedings or other similar proceeding under the laws of the United States or
any state of the United States.
Section 20. Miscellaneous. This Guaranty 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 Guaranty shall be in addition to any other guaranty of or collateral security for any of
the Obligations. The provisions of this Guaranty 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 Guaranty, then,
notwithstanding any other provision of this Guaranty to the contrary, the amount of such liability
shall, without any further action by Performance Guarantor or Beneficiary, 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 Guaranty 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 specified, references herein to “Section” shall mean a
reference to sections of this Guaranty.
The effect of this Guaranty is to amend and restate that certain Amended and Restated
Performance Guaranty, dated as of September 30, 2004 (the “Prior Guaranty”), by the
Guarantor in favor of Beneficiary, and to the extent that any rights, benefits or provisions in
favor of Beneficiary existed in the Prior Guaranty and continue to exist in this Guaranty, as the
same may be amended, restated, supplemented or otherwise modified from time to time, without any
written waiver of any such rights, benefits or provisions prior to the date hereof, then such
rights, benefits or provisions are acknowledged to be and to continue to be effective from and
after the date of the Prior Guaranty or any applicable portion thereof. The parties hereto agree
and acknowledge that any and all rights, remedies and payment provisions under the Prior Guaranty
shall continue and survive the execution and delivery of this Guaranty.
All references to the Prior Guaranty in the Receivables Purchase Agreement and any other
Transaction Document or any other agreement, instrument or document executed or delivered in
connection herewith or therewith shall be deemed to refer to this Guaranty, as the same may be
amended, restated, supplemented or otherwise modified from time to time. The Receivables Purchase
Agreement and the other Transaction Documents and all other agreements, instruments and documents
executed or delivered in connection with any of the foregoing shall be deemed to be amended to the
extent necessary, if any, to give effect to the provisions of this Guaranty, as the same may be
amended, restated, supplemented or otherwise modified from time to time.
* * * *
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IN WITNESS WHEREOF, Performance Guarantor has caused this Guaranty to be executed and
delivered as of the date first above written.
| CARDINAL HEALTH, INC. | ||||||
| By: Name: |
/s/ Xxxxx X. Xxxxx
|
|||||
| Title: | Senior Vice President and Treasurer | |||||
| Address: | 0000 Xxxxxxxx Xxxxx Xxxxxx, XX 00000 Attn: Assistant General Counsel — Finance |
|||||
Consented to as of the date
first written above:
| CARDINAL HEALTH FUNDING, LLC | ||||
By: Name: |
/s/ Xxxxxxx X. Xxxxxxx
|
|||
Title:
|
President | |||
Address:
Second Amended And Restated
Performance Guaranty
Performance Guaranty
S-1
| JPMORGAN CHASE BANK, N.A., as Agent | ||||
By: Name: |
/s/ Xxxxxx X. Xxxxxx
|
|||
Title:
|
Vice President | |||
Second Amended And Restated
Performance Guaranty
Performance Guaranty
S-2
