EXHIBIT 4.7
AMENDED AND RESTATED ANNEX X
dated as of December 20, 2002
to
SALE AND CONTRIBUTION AGREEMENT
dated as of December 20, 2000, and as heretofore amended
and
AMENDED AND RESTATED
RECEIVABLES PURCHASE AND SERVICING AGREEMENT
dated as of December 20, 2002
Definitions and Interpretation
ABDC/Blue Hill II A&R Annex X
Section 1. Definitions and Conventions. Capitalized terms used
in the Sale and Contribution Agreement and the Purchase Agreement shall have
(unless otherwise provided elsewhere therein) the following respective meanings:
"1999 Audited Financials" shall have the meaning set forth in
Section 4.01(h) of the Purchase Agreement.
"2000 Audited Financials" shall have the meaning set forth in
Section 4.01(h) of the Purchase Agreement.
"Accession Agreement" shall mean an Accession Agreement
substantially in the form of Exhibit A to the Collateral Agent Agreement.
"Accounts" shall mean the Agent's Account, the Lockbox Accounts,
the Deposit Accounts, and the Reserve Account, collectively.
"Accrued Monthly Yield" shall mean, as of any date of
determination within a Settlement Period, the sum of the Daily Yields for each
day from and including the first day of the Settlement Period through and
including such date.
"Accrued Purchaser Group Commitment Fee" shall mean, as of any
date of determination within a Settlement Period, the sum of the Purchaser Group
Commitment Fees calculated for each day from and including the first day of the
Settlement Period through and including such date.
"Accrued Servicing Fee" shall mean, as of any date of
determination within a Settlement Period, the sum of the Servicing Fees
calculated for each day from and including the first day of the Settlement
Period through and including such date.
"Additional Amounts" shall mean any amounts payable to any
Affected Party under Sections 2.09 or 2.10 of the Purchase Agreement.
"Additional Costs" shall have the meaning assigned to it in
Section 2.09(b) of the Purchase Agreement.
"Administrative Agent" shall have the meaning set forth in the
Preamble of the Purchase Agreement.
"Administrative Services Agreement" shall mean that certain
Administrative Services Agreement dated as of March 7, 2000, between Redwood and
the Operating Agent.
"Adverse Claim" shall mean any claim of ownership or any Lien,
other than any ownership interest or Lien created under the Sale and
Contribution Agreement, or the Purchase Agreement, or any Lien created under the
Collateral Agent Agreement or the other Program Documents.
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"Affected Party" shall mean each of the following Persons: the
Purchasers, the Liquidity Agents, the Liquidity Lenders, the Administrative
Agent, the Purchaser Agents, each other Program Support Provider and each
Affiliate of the foregoing Persons.
"Affiliate" shall mean, with respect to any Person, (a) each
Person that, directly or indirectly, owns or controls, whether beneficially, or
as a trustee, guardian or other fiduciary, ten percent (10%) or more of the
Stock having ordinary voting power in the election of directors of such Person,
(b) each Person that controls, is controlled by or is under common control with
such Person, or (c) each of such Person's officers, directors, joint venturers
and partners. For the purposes of this definition, "control" of a Person shall
mean the possession, directly or indirectly, of the power to direct or cause the
direction of its management or policies, whether through the ownership of voting
securities, by contract or otherwise.
"Agent's Account" shall mean that certain segregated deposit
account established by the Administrative Agent in accordance with the
requirements set forth in Section 6.01(c) of the Purchase Agreement.
"Agreement" shall mean (a) as used in the Purchase Agreement, the
Purchase Agreement, and (b) as used in the Sale and Contribution Agreement, the
Sale and Contribution Agreement.
"Aggregate Capital Investment" shall mean, as of any date of
determination, an amount equal to the sum of all Capital Investments for each
Purchaser.
"Aggregate Capital Investment Available" shall mean, as of any
date of determination, the amount, if any, by which Availability exceeds
Aggregate Capital Investment, in each case as of the end of the immediately
preceding day.
"Amended and Restated Agreement" shall have the meaning assigned
to it in the recitals to the Purchase Agreement.
"AmerisourceBergen Drug" shall mean AmerisourceBergen Drug
Corporation (f/k/a AmeriSource Corporation), a Delaware corporation, as
successor by merger to Bergen Xxxxxxxx.
"Appendices" shall mean, with respect to any Related Document,
all exhibits, schedules, annexes and other attachments thereto, or expressly
identified thereto.
"Applicable Financials" shall mean (a) if the Closing Date is
before, or less than 10 days after, the release of the 2000 Audited Financials,
the 1999 Audited Financials, or (b) if the Closing Date is 10 days or more after
the release of the 2000 Audited Financials, the 2000 Audited Financials.
"Applicable Purchaser" shall mean (a) with respect to Redwood's
Purchaser Group (i) prior to the occurrence of a GE Capital Funding Event, the
Conduit Purchaser, and (ii) on and after the occurrence of a GE Capital Funding
Event, the Committed Purchaser, and (b) with respect to each other Purchaser
Group, the Purchaser who has made (or will make) the Purchase in question.
ABDC/Blue Hill II A&R Annex X
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"ARFC" shall mean AmeriSource Receivables Financial Corporation,
a Delaware corporation.
"ARFC Designated Distribution Center" shall mean any distribution
center of the Originator identified from time to time on the Designated
Receivables Schedule as an "ARFC Designated Distribution Center".
"ARFC Designated Receivables" shall mean, collectively (but
without duplication), (a) all Receivables that are generated by the Originator
at any of the ARFC Designated Distribution Centers and (b) all Receivables that
are acquired by the Originator pursuant to the ASC Affiliate Purchase Agreement.
From and after a Distribution Center Consolidation, "ARFC Designated
Receivables" shall exclude all Receivables that become BH2 Designated
Receivables pursuant to such Distribution Center Consolidation.
"ARFC/JPMorgan Chase Purchase Agreement" shall mean that certain
Receivables Purchase Agreement, dated as of May 14, 1999, among ARFC as seller,
AmerisourceBergen Drug (f/k/a AmeriSource Corporation) as servicer, Amerisource
Health Corporation as guarantor, DFC as buyer and JPMorgan Chase as
administrative agent, as amended by that certain First Amendment dated as of May
12, 2000, that certain Second Amendment dated as of May 26, 2000, that certain
Third Amendment dated as of October 17, 2000, that certain Fourth Amendment
dated as of August 29, 2001, that certain Fifth Amendment dated as of November
7, 2001, that certain Sixth Amendment dated as of November 30, 2001, that
certain Seventh Amendment dated as of February 7, 2002, that certain Eighth
Amendment dated as of August 8, 2002, that certain Ninth Amendment dated as of
the Third Amendment Effective Date, that certain Tenth Amendment dated as of
December 2, 2002, and as may be further amended from time to time in accordance
with the Third Amendment Intercreditor Agreement.
"ASC Affiliate Purchase Agreement" shall mean the Purchase
Agreement, dated as of May 26, 2000, among each of the sellers party thereto
from time to time and the Originator, as buyer, as amended by that certain First
Amendment, dated as of October 1, 2002 and as may be further amended from time
to time in accordance with the Third Amendment Intercreditor Agreement.
"ASC/ARFC Purchase Agreement" shall mean that certain Purchase
Agreement, dated as of May 14, 1999, between AmerisourceBergen Drug (f/k/a
AmeriSource Corporation) as originator and ARFC as seller, as amended by that
certain First Amendment to Purchase Agreement dated as of May 26, 2000, that
certain Second Amendment to Purchase Agreement dated as of October 1, 2002, that
certain Third Amendment to Purchase Agreement, dated as of December 2, 2002, and
as may be further amended from time to time in accordance with the Third
Amendment Intercreditor Agreement.
"Assignment Agreement" shall mean an agreement substantially in
the form set forth in Exhibit 14.02(b) to the Purchase Agreement.
"Authorized Officer" shall mean, with respect to any corporation,
the Chairman or Vice-Chairman of the Board, the President, any Vice President,
the Secretary, the Treasurer,
ABDC/Blue Hill II A&R Annex X
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any Assistant Secretary, any Assistant Treasurer and other officers of such
corporation, so long as each such officer is specifically authorized in
resolutions of the Board of Directors of such corporation to sign agreements,
instruments or other documents on behalf of such corporation in connection with
the transactions contemplated by the Sale and Contribution Agreement, the
Purchase Agreement and the other Related Documents.
"Availability" shall mean, as of any date of determination, the
amount equal to the lesser of (a) (i) the Investment Base multiplied by the
Purchase Discount Rate, minus (ii) the Discount Reserve and (b) the Maximum
Purchase Limit.
"Available Funds" shall mean monies then held by or on behalf of
Buyer, solely to the extent that such monies do not constitute Collections that
are required to be identified or are deemed to be held by the Servicer pursuant
to the Purchase Agreement for the benefit of, or required to be distributed to,
the Administrative Agent or the Purchasers pursuant to the Purchase Agreement or
required to be paid to the Servicer as the Servicing Fee, or otherwise necessary
to pay current expenses of Buyer (in its reasonable discretion).
"Available LOC Percentage" shall mean twenty percent (20.0%);
provided, that following the occurrence or during the continuation of a
Termination Event, the Available LOC Percentage may be changed at any time (a)
by the Administrative Agent in the Administrative Agent's sole discretion,
exercised in good faith, and (b) in the case of an increase only, upon consent
of the Purchasers and satisfaction of the Rating Agency Condition with respect
thereto.
"Bankruptcy Code" shall mean the provisions of title 11 of the
United States Code, 11 U.S.C. (S)(S) 101 et seq.
"Bergen Xxxxxxxx" shall mean Bergen Xxxxxxxx Drug Company, a
California corporation.
"Bergen Entity" shall mean the Parent, AmerisourceBergen Services
Corporation, a Delaware corporation (successor by merger to Bergen Xxxxxxxx
Corporation, a New Jersey corporation), and the Originator.
"BH2 Designated Distribution Center" shall mean any distribution
center of the Originator identified from time to time on the Designated
Receivables Schedule as a "BH2 Designated Distribution Center".
"BH2 Designated Receivables" shall mean all Receivables owned by
the Originator that are generated by the Originator at any of the BH2 Designated
Distribution Centers. From and after a Distribution Center Consolidation, "BH2
Designated Receivables" shall exclude all Receivables that become ARFC
Designated Receivables pursuant to such Distribution Center Consolidation.
"BHI" shall mean Blue Hill II, Inc., a Delaware corporation.
"Billed Amount" shall mean, with respect to any Receivable, the
amount billed on the Billing Date to the Obligor thereunder.
ABDC/Blue Hill II A&R Annex X
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"Billing Date" shall mean, (a) with respect to any Receivable for
which a statement is issued, the original statement date with respect to such
Receivable, and (b) with respect to any Receivable for which no statement is
issued, the invoice date with respect to such Receivable.
"Breakage Costs" shall have the meaning assigned to it in Section
2.10 of the Purchase Agreement.
"Bringdown Certificate" shall mean an Officer's Certificate
substantially in the form of Exhibit 3.01(a)(ii) to the Purchase Agreement.
"Business Day" shall mean any day that is not a Saturday, a
Sunday or a day on which banks are required or permitted to be closed in the
State of New York.
"Buyer" shall mean BHI in its capacity as purchaser under the
Sale and Contribution Agreement.
"Buyer Indemnified Party" shall have the meaning assigned to it
in Section 7.1 of the Sale and Contribution Agreement.
"Capital Investment" shall mean, with respect to any Purchaser,
as of any date of determination, the amount equal to (a) the aggregate deposits
made by such Purchaser to the Seller Account and the Agent's Account pursuant to
Section 2.04(b) of the Purchase Agreement on or before such date, minus (b) the
aggregate amounts disbursed to such Purchaser in reduction of such Purchaser's
Capital Investment pursuant to Sections 6.02, 6.03, 6.04, 6.05 or 6.06 of the
Purchase Agreement on or before such date; provided, that the Capital Investment
of any Purchaser shall be restored and reinstated in the amount of any reduction
if at any time the amounts disbursed in reduction are rescinded or must
otherwise be returned for any reason; provided, further, that references to the
Capital Investment of any Purchaser who is Redwood or GE Capital shall mean an
amount equal to (x) the aggregate deposits made by such Purchaser to the Seller
Account and Agent's Account pursuant to Section 2.04(b) of the Purchase
Agreement on or before such date, plus (y) in the case of the Committed
Purchaser only, any amounts advanced by the Committed Purchaser to the Conduit
Purchaser under the LAPA in respect of Capital Investment when purchasing the
Conduit Purchaser's Purchaser Interests minus (z) the aggregate amounts
disbursed to such Purchaser in reduction of such Purchaser's Capital Investment
pursuant to Sections 6.02, 6.03, 6.04, 6.05 or 6.06 of the Purchase Agreement on
or before such date.
"Capital Lease" shall mean, with respect to any Person, any lease
of any property (whether real, personal or mixed) by such Person as lessee that,
in accordance with GAAP, would be required to be classified and accounted for as
a capital lease on a balance sheet of such Person.
"Capital Lease Obligation" shall mean, with respect to any
Capital Lease of any Person, the amount of the obligation of the lessee
thereunder that, in accordance with GAAP, would appear on a balance sheet of
such lessee in respect of such Capital Lease.
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"Capital Purchase" shall have the meaning assigned to it in
Section 2.01(c) of the Purchase Agreement.
"Capital Purchase Request" shall have the meaning assigned to it
in Section 2.03(b) of the Purchase Agreement.
"Cash Management Date" shall mean the date on which the
Administrative Agent has taken dominion and control over the Lockbox Accounts
pursuant to Section 6.01(a)(i).
"Cash Management Event" shall mean any of the following events:
(a) the Servicer shall fail or neglect to perform, keep or
observe any material provision of this Agreement or the other Related Documents
(whether in its capacity as the Originator or the Servicer) and the same shall
remain unremedied for two (2) Business Days or more after written notice thereof
shall have been given by the Purchasers, the Purchaser Agents or the
Administrative Agent to the Servicer;
(b) any representation or warranty of the Servicer herein or in
any other Related Document or in any written statement, report, financial
statement or certificate made or delivered by the Servicer to the Purchasers,
the Purchaser Agents or the Administrative Agent hereto or thereto is untrue or
incorrect in any material adverse respect as of the date when made or deemed
made; provided that a breach of any representation, warranty or covenant related
to the Receivables shall not be deemed a breach to the extent such Receivable
has been deemed collected or adjusted in accordance with Section 3.2 of the Sale
and Contribution Agreement within two Business Days after the delivery of an
Investment Report evidencing such breach;
(c) a case or proceeding shall have been commenced against the
Servicer seeking a decree or order in respect of any such Person (i) under the
Bankruptcy Code or any other applicable federal, state or foreign bankruptcy or
other similar law, (ii) appointing a custodian, receiver, liquidator, assignee,
trustee or sequestrator (or similar official) for any such Person or for any
substantial part of such Person's assets, or (iii) ordering the winding-up or
liquidation of the affairs of any such Person;
(d) the Servicer shall (i) file a petition seeking relief under
the Bankruptcy Code or any other applicable federal, state or foreign bankruptcy
or other similar law, (ii) consent or fail to object in a timely and appropriate
manner to the institution of proceedings thereunder or to the filing of any such
petition or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee or sequestrator (or similar official) for any such
Person or for any substantial part of such Person's assets, (iii) make an
assignment for the benefit of creditors, or (iv) take any corporate action in
furtherance of any of the foregoing;
(e) (i) an "Event of Default" shall occur under the Credit
Facility or a "Termination Event" or "Servicing Default" shall occur under the
ARFC/JPMorgan Chase Purchase Agreement, or (ii) a default or breach shall occur
under any other agreement, document or instrument to which any Bergen Entity,
the Seller or the Servicer is a party or by which any such Person or its
property is bound that is not cured within any applicable grace period therefor,
and such default or breach (A) involves the failure to make any payment when due
in respect of any Debt (other than the Seller Secured Obligations) of any such
Person which, except with
ABDC/Blue Hill II A&R Annex X
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respect to the Seller, is in excess of a principal amount of $25,000,000 in the
aggregate, or (B) causes or permits any holder of such Debt or a trustee or
agent to cause, Debt or a portion thereof which, except with respect to the
Seller, is in excess of a principal amount of $25,000,000 in the aggregate to
become due prior to its stated maturity or prior to its regularly scheduled
dates of payment;
(f) a Termination Event has occurred and is continuing; or
(g) the Parent's long-term unsecured unsubordinated indebtedness
is rated less than BB- by S&P (or such rating is withdrawn or suspended) or less
than Ba3 by Xxxxx'x (or such rating is withdrawn or suspended).
"Chattel Paper Agreement" shall mean a Chattel Paper Agreement
executed by the Originator substantially in the form attached as Exhibit D to
the Purchase Agreement.
"Chattel Paper Report" shall have the meaning set forth in Annex
5.02(a).
"Closing Date" shall mean December 20, 2000.
"Collateral Agent" shall mean GE Capital, in its capacity as
collateral agent for Redwood and the Redwood Secured Parties pursuant to the
Collateral Agent Agreement.
"Collateral Agent Agreement" shall mean that certain Third
Amended and Restated Collateral Agent and Security Agreement dated as of March
7, 2000, among Redwood, the Depositary and GE Capital, in its capacities as (a)
the Collateral Agent, (b) the Operating Agent, (c) the Liquidity Agent and (d)
the Letter of Credit Agent.
"Collections" shall mean, with respect to any Receivable, all
cash collections and other proceeds of such Receivable (including late charges,
fees and interest arising thereon, and all recoveries with respect thereto that
have been written off as uncollectible).
"Commercial Paper" shall mean those certain short-term promissory
notes issued by a Purchaser from time to time in the United States of America
commercial paper market.
"Commitment" shall mean, with respect to each Committed
Purchaser, the maximum amount which such Purchaser is obligated to pay under the
Purchase Agreement on account of all Purchases, as set forth below its signature
to the Purchase Agreement or below its signature to its Assignment Agreement or
its RPSA Supplement Agreement, as the case may be, as such amount may be
modified in connection with a subsequent assignment pursuant to Section 14.02 of
the Purchase Agreement or in connection with a reduction in the Maximum Purchase
Limit pursuant to Section 2.02 of the Purchase Agreement.
"Commitment Percentage" shall mean, with respect to each
Committed Purchaser within a particular Purchaser Group, such Committed
Purchaser's Commitment divided by the Group Commitment of such Purchaser Group.
"Commitment Reduction Notice" shall have the meaning assigned to
it in Section 2.02(a) of the Purchase Agreement.
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"Commitment Termination Notice" shall have the meaning assigned
to it in Section 2.02(c) of the Purchase Agreement.
"Committed Purchaser" shall mean each Person identified as a
committed purchaser on the signature pages to the Purchase Agreement or on the
signature pages to any Assignment Agreement or any RPSA Supplement Agreement, as
the case may be, and each such Person's permitted successors and assigns.
"Committed Purchaser Daily Yield" shall mean (a) with respect to
the Committed Purchaser who is GE Capital, the GE Capital Daily Yield, and (b)
with respect to each other Committed Purchaser, (i) the Committed Purchaser
Daily Yield Rate for such day multiplied by (ii) such Committed Purchaser's
Capital Investment outstanding on such day.
"Committed Purchaser Daily Yield Rate" shall mean, for any day
during a Settlement Period, (a) with respect to the Committed Purchaser who is
GE Capital, the GE Capital Daily Yield Rate, and (b) with respect to each other
Committed Purchaser, the rate set forth as the Committed Purchaser Daily Yield
Rate in Schedule I of such Committed Purchaser's Assignment Agreement or RPSA
Supplement Agreement, as the case may be.
"Committed Purchaser Expiry Date" shall mean (a) with respect to
the Committed Purchaser who is GE Capital, the fifth anniversary of the Closing
Date and (b) with respect to each other Committed Purchaser, the date set forth
as the "Committed Purchaser Expiry Date" on Schedule I to such Committed
Purchaser's RPSA Supplement or Assignment Agreement, as the case may be, as such
date may be extended in accordance with Section 2.13(a) of the Purchase
Agreement from time to time.
"Concentration Discount Amount" shall mean, with respect to any
Obligor, and as of any date of determination after giving effect to all Eligible
Receivables to be transferred on such date, (a) the amount by which the
Outstanding Balance of Eligible Receivables owing by such Obligor exceeds the
larger of (i) the percentage of the Outstanding Balance of Eligible Receivable
set forth in the table below based upon the short-term unsecured debt rating
(or, in the absence of such rating, the equivalent long-term unsecured senior
debt rating) assigned to them at such time by S&P and Xxxxx'x (and, if such
Obligor is rated by both agencies and has a split rating (except for an A-1+/P-1
rating), the applicable rating will be the lower of the two) and (ii) the
Special Limit, if any, applicable to such Obligor, multiplied by (b) the
Outstanding Balance of all Eligible Receivables on such date.
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S&P RATING XXXXX'X RATING ALLOWABLE % OF ELIGIBLE RECEIVABLES
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A-1+ P-1 10.0%
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A-1 P-1 8.0%
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A-2 P-2 6.0%
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A-3 P-3 3.0%
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Below A-3 or Not Rated by either S&P Below P-3 or Not Rated by either S&P 3.0%
or Xxxxx'x or Xxxxx'x
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If the Special Limit for National Rx is revoked as indicated in
subsection (i)(A) of the definition of "Special Limit", the Concentration
Discount Amount for National Rx will be based on the Merck short-term unsecured
senior debt ratings and the associated Concentration Limits in the table
appearing above. If the Special Limit for National Rx is revoked as indicated in
subsection (i)(B) of the definition of "Special Limit", the Concentration
Discount Amount for National Rx will be based on the short-term unsecured senior
debt ratings of National Rx and the associated Concentration Limits in the table
appearing above. If the Special Limit for any other Obligor is revoked at any
time, such Obligor's Concentration Discount Amount will be based on its
short-term unsecured senior debt rating per the table above.
"Conduit Purchaser" shall mean each Person identified as a
conduit purchaser on the signature pages to the Purchase Agreement or on the
signature pages to any Assignment Agreement or any RPSA Supplement Agreement, as
the case may be, and each such Person's permitted successors and assigns.
"Conduit Purchaser Daily Yield" shall mean (a) with respect to
the Conduit Purchaser who is Redwood, the Redwood Daily Yield, and (b) with
respect to each other Conduit Purchaser, (i) the Conduit Purchaser Yield Rate
for such day multiplied by (ii) the Conduit Purchaser's Capital Investment
outstanding on such day.
"Conduit Purchaser Daily Yield Rate" shall mean, for any day
during a Settlement Period, (a) with respect to the Conduit Purchaser who is
Redwood, the Redwood Daily Yield Rate, and (b) with respect to each other
Conduit Purchaser, the rate set forth as the Conduit Purchaser Daily Yield Rate
in Schedule I of such Conduit Purchaser's Assignment Agreement or RPSA
Supplement Agreement, as the case may be.
"Consolidated Subsidiary" means, 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.
"Contract" shall mean any agreement (including any invoice or
billing statement) pursuant to, or under which, an Obligor shall be obligated to
make payments with respect to any Receivable.
"Contributed Receivables" shall have the meaning assigned to it
in Section 2.2 of the Sale and Contribution Agreement.
"XX Xxxxxx" shall mean any Person that holds record or beneficial
ownership of Commercial Paper.
"Credit and Collection Policies" shall mean the credit,
collection, customer relations and service policies of the Originator, as such
policies relate to the Transferred Receivables, in effect on the Closing Date,
attached to the Purchase Agreement as Exhibit A, as the same may from time to
time be amended, restated, supplemented or otherwise modified in accordance with
the terms of the Purchase Agreement.
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"Credit Facility" shall mean (a) that certain Credit Agreement
dated as of August 29, 2001, among the Parent, as borrower, the lenders party
thereto, The Chase Manhattan Bank as administrative agent, X.X. Xxxxxx
Securities Inc. and Banc of America Securities LLC as joint lead arrangers and
joint bookrunners, Bank of America, N.A. and Credit Suisse First Boston as
syndication agents and First Union National Bank and The Bank of Nova Scotia as
documentation agents, and the other loan documents executed in connection
therewith together with such further amendments, restatements, supplements or
modifications thereto as may be effected from time to time and (b) any
refinancings, replacements or refundings thereof so long as either (i) the
collateral granted as security thereunder similarly excludes Receivables,
Originator Collateral, Seller Collateral and the Proceeds thereof and excludes
the Stock of, and Indebtedness issued by, the Seller, or (ii) the agent on
behalf of such replacement lenders enters into an intercreditor agreement with
the Administrative Agent, the Seller and the Originator on terms and provisions
no less favorable to the Administrative Agent and the Purchasers than the
Intercreditor Agreement and such intercreditor agreement shall be in effect with
respect to such replacement Credit Facility.
"Daily Default Margin" shall mean, for any day on which a
Termination Event has occurred and is continuing, two percent (2.0%) divided by
360.
"Daily Margin" shall mean, for any day, the Per Annum Daily
Margin on such day divided by 360.
"Daily Yield" shall mean, for any day, the sum of (a) Conduit
Purchaser Daily Yields for such day and (b) the Committed Purchaser Daily Yields
for such day.
"Daily Yield Rate" shall mean the Conduit Purchaser Daily Yield
Rate or the Committed Purchaser Daily Yield Rate, as the case may be.
"Dated Balances Not Due Reserve" shall mean an amount equal to
(a) the aggregate Outstanding Balance of each Transferred Receivable other than
the NCS Healthcare Receivables for which the stated term is required to be
greater than 30 days after the Billing Date of such Receivable pursuant to the
terms of an agreement between the Originator and a supplier to the Originator or
the terms of a special situation promotion for certain Obligors, less (b) with
respect to any day, the aggregate Outstanding Balance of the Transferred
Receivables described in clause (a) where such Transferred Receivables are due
no more than 30 days after such date.
"Dealer" shall mean any dealer party to a Dealer Agreement.
"Dealer Agreement" shall mean any dealer agreement entered into
by Redwood for the distribution of Commercial Paper.
"Debt" of any Person shall mean, without duplication, (a) all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services payment for which is deferred 90 days or more, but
excluding obligations to trade creditors incurred in the ordinary course of
business that are not overdue by more than 90 days unless being contested in
good faith, (b) all reimbursement and other obligations with respect to letters
of credit, bankers' acceptances and surety bonds, whether or not matured, (c)
all obligations evidenced by notes, bonds, debentures or similar instruments,
(d) all indebtedness created or arising under any
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conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (e) all Capital Lease Obligations, (f) all
obligations of such Person under commodity purchase or option agreements or
other commodity price hedging arrangements, in each case whether contingent or
matured, (g) all obligations of such Person under any foreign exchange contract,
currency swap agreement, interest rate swap, cap or collar agreement or other
similar agreement or arrangement designed to alter the risks of that Person
arising from fluctuations in currency values or interest rates, in each case
whether contingent or matured, (h) all liabilities of such Person under Title IV
of ERISA, (i) all Guaranteed Indebtedness of such Person, (j) all indebtedness
referred to in clauses (a) through (i) above secured by (or for which the holder
of such indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien upon or in property or other assets (including accounts and
contract rights) owned by such Person, even though such Person has not assumed
or become liable for the payment of such indebtedness, (k) the Seller Secured
Obligations, and (l) the "Obligations" as such term is defined in the Credit
Facility.
"Defaulted Receivable" shall mean any Transferred Receivable
other than an NCS HealthCare Receivable (a) with respect to which any payment,
or part thereof, remains unpaid for more than 60 days after its Maturity Date or
90 days from its Billing Date, (b) with respect to which the Obligor thereunder
has taken any action, or suffered any event to occur, of the type described in
Sections 9.01(c) or 9.01(d) of the Purchase Agreement, or (c) that otherwise is
determined to be uncollectible and is written off in accordance with the Credit
and Collection Policies.
"Default Ratio" shall mean, as of any date of determination, the
ratio (expressed as a percentage) of:
(a) (i) the average of the respective Outstanding Balances of
all Transferred Receivables with respect to which any payment, or part thereof,
remained unpaid for more than 60 days from their respective Maturity Dates as of
the last day of the three Settlement Periods immediately preceding such date,
plus (ii) without duplication, the aggregate Outstanding Balance of Transferred
Receivables that were written off as uncollectible during such three Settlement
Periods
to
(b) the average of the respective Outstanding Balances of all
Transferred Receivables as of the last day of the three Settlement Periods
immediately preceding such date;
provided, that the Outstanding Balance of all Transferred Receivables that are
NCS HealthCare Receivables shall be excluded from the above calculation.
"Delinquency Ratio" shall mean, as of any date of determination,
the ratio (expressed as a percentage) of:
(a) the average of the respective Outstanding Balances of all
Transferred Receivables with respect to which any payment, or part thereof,
remained unpaid for more than
ABDC/Blue Hill II A&R Annex X
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30 but less than 61 days from their respective Maturity Dates as of the last day
of the three Settlement Periods immediately preceding such date
to
(b) the average of the Outstanding Balances of all Transferred
Receivables as of the last day of the three Settlement Periods immediately
preceding such date;
provided, that the Outstanding Balance of all Transferred Receivables that are
NCS HealthCare Receivables shall be excluded from the above calculation.
"Deposit Account" shall mean each account maintained by the
Servicer at a Deposit Bank for the purpose of receiving or concentrating
Collections with respect to the Transferred Receivables, which account shall be
maintained in the name of the Seller.
"Deposit Account Agreement" shall mean a letter agreement
substantially in the form of Exhibit B-2 to the Purchase Agreement (or otherwise
acceptable to the Administrative Agent) from the Seller and the Servicer to each
Deposit Bank, acknowledged and accepted by such Deposit Bank and the
Administrative Agent.
"Deposit Bank" shall mean each bank listed as such on Exhibit F
to the Purchase Agreement, and any other bank added as a "Deposit Bank" in
accordance with Section 6.01(b) of the Purchase Agreement.
"Depositary" shall mean Bankers Trust Company, or any other
Person designated as the successor Depositary pursuant to and in accordance with
the terms of the Depositary Agreement, in its capacity as issuing and paying
agent or trustee in connection with the issuance of Commercial Paper.
"Depositary Agreement" shall mean that certain Depositary
Agreement dated March 15, 1994, by and between Redwood and the Depositary and
consented to by the Liquidity Agent.
"Designated Financial Officer" means the chief financial officer
of BHI or the other relevant Bergen Entity, as applicable.
"Designated Receivables Schedule" means Schedule 5.2(p) to the
Sale and Contribution Agreement, as such Schedule 5.2(p) may be amended from
time to time pursuant to and in connection with a Distribution Center
Consolidation permitted under Section 8.13 of the Sale and Contribution
Agreement.
"DFC" shall mean Delaware Funding Corporation, a Delaware
corporation.
"Dilution Factors" shall mean, with respect to any Transferred
Receivable, any net credits, rebates, freight charges, cash discounts, volume
discounts, cooperative advertising expenses, royalty payments, warranties, cost
of parts required to be maintained by agreement (whether express or implied),
warehouse and other allowances, disputes, setoffs, chargebacks, defective
returns, other returned or repossessed goods, inventory transfers, allowances
for early
ABDC/Blue Hill II A&R Annex X
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payments and other similar allowances that are reflected on the books of the
Originator and made or coordinated with the usual practices of the Originator;
provided, that any allowances or adjustments in accordance with the Credit and
Collection Policies made on account of the insolvency of the Obligor thereunder
or such Obligor's inability to pay shall not constitute a Dilution Factor.
"Dilution Ratio" shall mean, as of any date of determination, the
ratio (expressed as a percentage) of:
(a) the aggregate Dilution Factors during the first Settlement
Period immediately preceding such date
to
(b) the aggregate Billed Amount of all Transferred Receivables
originated during the first Settlement Period immediately preceding such date;
provided, that Dilution Factors relating to, and the Billed Amount of, all NCS
HealthCare Receivables shall be excluded from the above calculation.
"Dilution Reserve Ratio" shall mean, as of any date of
determination, the ratio (expressed as a percentage) calculated in accordance
with the following formula:
[(ADR x 2.00) + [(HDR - ADR) x HDR]] x DILHOR
--- ------
ADR NRPB
where:
ADR = the average of the respective Dilution Ratios as of
the last day of the 12 Settlement Periods immediately
preceding such date.
HDR = the highest Dilution Ratio during the 12 Settlement
Periods immediately preceding such date.
DILHOR = the aggregate Billed Amount of Eligible Receivables
originated during the Settlement Period immediately
preceding such date:
NRPB = the Outstanding Balance of Eligible Receivables as of
the last day of the first Settlement Period immediately
preceding such date.
Notwithstanding the foregoing, the Dilution Reserve Ratio may be changed at any
time by the Administrative Agent, (a) in the Administrative Agent's reasonable
credit judgment, provided that so long as a Termination Event has not occurred
nor is continuing, the Administrative Agent may change the formulas for or
methods of calculation of the Dilution Reserve Ratio only to the extent that
such change together with any other Discretionary Changes then in effect would
not result in making Availability hereunder less than the Minimum Availability
Requirement, and (b) in the case of a decrease only, upon consent of the
Requisite Purchasers and satisfaction of the Rating Agency Condition with
respect thereto.
ABDC/Blue Hill II A&R Annex X
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"Discount Reserve" means, at any time, the product of (a) 1.5,
(b) the Prime Rate plus 2.00%, (c) Aggregate Capital Investment and (d) a
fraction, the numerator of which is the higher of (i) 30 and (ii) the most
recently reported Receivables Collection Turnover multiplied by 2, and the
denominator of which is 360.
"Discretionary Changes" shall mean, at any time, any and all
changes made by the Administrative Agent to the formulas for or methods of
calculation of Dilution Reserve Ratio, the Loss Ratio, and any other Reserves,
in each case, which are in effect at such time.
"Distribution Center" shall mean any BH2 Designated Distribution
Center and any ARFC Designated Distribution Center.
"Distribution Center Consolidation" shall mean any consolidation
of a BH2 Designated Distribution Center into an ARFC Designated Distribution
Center and any consolidation of an ARFC Designated Distribution Center into a
BH2 Designated Distribution Center, in each case, pursuant to, and in accordance
with, Section 8.13 of the Sale and Contribution Agreement.
"Dollars" or "$" shall mean lawful currency of the United States
of America.
"Dynamic Purchase Discount Rate" shall mean, as of any date of
determination, the rate equal to (a) 100% minus (b) the sum of (i) the Loss
Reserve Ratio plus (ii) the Dilution Reserve Ratio, plus (c) the Available LOC
Percentage.
"Election Notice" shall have the meaning assigned to it in
Section 2.1 of the Sale and Contribution Agreement.
"Eligible Receivable" shall mean, as of any date of
determination, a Transferred Receivable:
(a) that is not a liability of an Excluded Obligor;
(b) that is not a liability of an Obligor (i) organized under the
laws of any jurisdiction outside of the United States of America or (ii) having
its principal place of business outside of the United States of America;
(c) that is only denominated and payable in Dollars in the United
States of America;
(d) that is not and will not be subject to any right of
rescission, set-off, recoupment, counterclaim or defense, whether arising out of
transactions concerning the Contract therefor or otherwise (except to the extent
that (i) the Eligible Receivable exceeds such offset claim, (ii) a No-Offset
Agreement has been executed, or (iii) the Administrative Agent in its reasonable
credit judgment determines that appropriate reserves have been established
therefor);
(e) that is not a Defaulted Receivable or an Unapproved
Receivable;
ABDC/Blue Hill II A&R Annex X
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(f) that does not represent "billed but not yet shipped" goods or
merchandise, unperformed services, consigned goods or "sale or return" goods and
does not arise from a transaction for which any additional performance by the
Originator, or acceptance by or other act of the Obligor thereunder, remains to
be performed as a condition to any payments on such Receivable;
(g) as to which the representations and warranties of Sections
5.2(a) and (h)(i)-(iv) of the Sale and Contribution Agreement are true and
correct in all respects as of the Transfer Date therefor;
(h) that is not the liability of an Obligor that is a supplier or
vendor (or affiliate thereof) of any Bergen Entity (except to the extent that
(i) the Eligible Receivable exceeds any offset claim of such supplier or vendor
or affiliate thereof, (ii) a No-Offset Agreement has been executed, or (iii) the
Administrative Agent in its reasonable credit judgment determines that
appropriate reserves have been established therefor);
(i) that is a true and correct statement of a bona fide
indebtedness incurred in the amount of the Billed Amount of such Receivable for
merchandise sold to or services rendered and accepted by the Obligor thereunder;
(j) that was originated in accordance with and satisfies all
applicable requirements of the Credit and Collection Policies;
(k) that represents the genuine, legal, valid and binding
obligation of the Obligor thereunder enforceable by the holder thereof in
accordance with its terms;
(l) that is entitled to be paid pursuant to the terms of the
Contract therefor, and except as permitted by the Credit and Collection Policy,
has not been paid in full or been compromised, adjusted, extended, satisfied,
subordinated, rescinded or modified, and is not subject to compromise,
adjustment, extension, satisfaction, subordination, rescission, or modification
by the Originator (except for adjustments to the Outstanding Balance thereof to
reflect Dilution Factors made in accordance with the Credit and Collection
Policy);
(m) with respect to which the Originator thereof has submitted
all necessary documentation for payment to the Obligor thereunder and the
Originator has fulfilled all of its other obligations in respect thereof;
(n) that does not contravene in any material respect any laws,
rules or regulations applicable thereto (including laws, rules and regulations
relating to usury, consumer protection, truth in lending, fair credit billing,
fair credit reporting, equal credit opportunity, fair debt collection practices
and privacy) and with respect to which no party to the Contract therefor is in
violation of any such law, rule or regulation that could have a material adverse
effect on the collectibility, value or payment terms of such Receivable;
(o) with respect to which no proceedings or investigations are
pending or threatened before any Governmental Authority (i) asserting the
invalidity of such Receivable or the Contract therefor, (ii) asserting the
bankruptcy or insolvency of the Obligor thereunder, (iii) seeking payment of
such Receivable or payment and performance of such Contract or (iv)
ABDC/Blue Hill II A&R Annex X
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seeking any determination or ruling that might materially and adversely affect
the validity or enforceability of such Receivable or such Contract;
(p) with respect to which the Obligor thereunder is not: (i)
bankrupt or insolvent, (ii) unable to make payment of its obligations when due,
(iii) a debtor in a voluntary or involuntary bankruptcy proceeding, or (iv) the
subject of a comparable receivership or insolvency proceeding;
(q) (i) that is an "account" or "chattel paper" within the
meaning of the UCC of the jurisdictions in which the chief executive office of
each of Originator and the Seller is located, and the jurisdictions under which
they are organized, and, if such Transferred Receivable is "chattel paper", (A)
the Seller has complied with Section 5.01(d) of the Purchase Agreement, (B) the
Originator has complied with Section 6.1(f)(ii)(B) of the Sale and Contribution
Agreement, (C) the Seller or Servicer has delivered a Chattel Paper Report to
the Administrative Agent with respect to such Transferred Receivable, and (D)
such chattel paper is not subject to any prohibition on assignment which is
effective under applicable law unless such prohibition has been waived in
writing by the related Obligor or the related Obligor has delivered a written
consent permitting assignment under the Sale and Contribution Agreement and the
Purchase Agreement, which waiver or consent is enforceable in accordance with
its terms, and (ii) is not represented by a note or an instrument;
(r) with respect to which all material consents, licenses,
approvals or authorizations of, or registrations with, any Governmental
Authority required to be obtained, effected or given in connection with the
creation of such Receivable or the Contract therefor have been duly obtained,
effected or given and are in full force and effect;
(s) that is created through the provision of merchandise, goods
or services (i) by the Originator in the ordinary course of its business in a
current transaction or (ii) by another Person from whom the Originator acquired
such Receivables where those Receivables have been approved in writing by the
Administrative Agent;
(t) that is not subject to any right, claim, security interest or
other interest of any other Person, other than Liens in favor of the Purchaser;
(u) that is due and payable within 30 days of the Billing Date;
(v) the Billing Date for which (i) with respect to Obligors on a
bi-monthly billing cycle, is no later than fifteen (15) calendar days after the
invoice date, and (ii) with respect to Obligors on a monthly billing cycle, is
no later than the last day of the same calendar month in which the invoice date
occurs;
(w) that is not a NCS HealthCare Receivable; and
(x) that is not the liability of a state Governmental Authority
where the Administrative Agent has reasonably determined that the laws of such
state prohibit, limit or restrict the assignment or collection of such state
Governmental Authority's Receivables unless the Originator assigns to the
Seller, and the Seller assigns to the Administrative Agent on behalf
ABDC/Blue Hill II A&R Annex X
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of the Purchasers, rights to payment of such Receivable pursuant to and in
accordance with applicable state law.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974 and any regulations promulgated thereunder.
"ERISA Affiliate" shall mean, with respect to the Originator, any
trade or business (whether or not incorporated) that, together with the
Originator, are treated as a single employer within the meaning of Sections
414(b), (c), (m) or (o) of the IRC.
"Event of Servicer Termination" shall have the meaning assigned
to it in Section 9.02 of the Purchase Agreement.
"Excluded Obligor" shall mean any Obligor (a) that is an
Affiliate or employee of the Originator or the Seller, (b) that is a federal or
national Governmental Authority, (c) with respect to which 50% or more of the
aggregate Outstanding Balance of all Transferred Receivables owing by such
Obligor are Defaulted Receivables, or (d) with a Special Limit, of which more
than 25% of the aggregate outstanding balance of all Transferred Receivables of
such Obligor are Defaulted Receivables.
"Excluded Taxes" shall mean and includes any of the following
Taxes: (a) any Taxes imposed by any jurisdiction in which a Person is organized,
does business or maintains a permanent establishment solely by virtue of such
organization, business or maintenance of a permanent establishment, (b) any
Taxes on, or measured by, the overall net income of a Person; (c) any Taxes that
would not be imposed if a Person were a "United States person" as defined in
section 7701(a)(30) of the Internal Revenue Code of 1986, as amended, and (d)
any withholding taxes, to the extent that the relevant Person is eligible to
claim a reduction in or exclusion from such withholding taxes under applicable
statute or tax treaties in effect at the time such withholding taxes are
imposed.
"Existing Securitization Facility" shall mean that certain
Amended and Restated Receivables Sale Agreement, dated as of February 29, 2000,
among BHI, Bergen Xxxxxxxx, Wachovia Bank, N.A., the Related Bank Purchasers (as
defined therein) party thereto and the Conduit Purchasers (as defined therein)
party thereto as in existence on the Closing Date.
"Extended Term Reserve" shall mean the an amount equal to (a) the
aggregate Outstanding Balance of each Transferred Receivable other than the NCS
HealthCare Receivables for which the stated term is greater than 30 days after
the Billing Date of such Receivable less (b) the Dated Balances Not Due Reserve.
"Facility Termination Date" shall mean the earliest of (a) the
date so designated pursuant to Section 9.01 of the Purchase Agreement, (b) 60
days prior to the Final Purchase Date (c) two (2) Business Days prior to the
date of termination of the Maximum Purchase Limit specified in a notice from the
Seller to the Purchaser delivered pursuant to and in accordance with Section
2.02(c) certifying that the Seller intends to effectuate a replacement
securitization facility on such date of termination, (d) 30 days prior to the
date of termination of the Maximum Purchase Limit specified in a notice from the
Seller to the Purchaser delivered pursuant to and in accordance with Section
2.02(c) of the Purchase Agreement (other than a notice specified in
ABDC/Blue Hill II A&R Annex X
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clause (c) hereof), and (e) two (2) Business Days prior to the occurrence of a
Committed Purchaser Expiry Date, provided that no Facility Termination Date
shall occur if such Committed Purchaser Expiry Date has occurred as a result of
a Committed Purchaser's failure to extend such Committed Purchaser's Committed
Purchaser Expiry Date pursuant to Section 2.13 of the Purchase Agreement and
such Committed Purchaser either has been (i) replaced in accordance with
Sections 2.13(c) and 14.02(b) of the Purchase Agreement or (ii) repaid in full
in accordance with Section 2.13(b) of the Purchase Agreement.
"Federal Reserve Board" shall mean the Board of Governors of the
Federal Reserve System.
"Final Purchase Date" shall mean the fifth anniversary of the
Closing Date.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect on the Closing Date, consistently applied
as such term is further defined in Section 2(a) of this Annex X.
"GE Capital" shall mean General Electric Capital Corporation, a
Delaware corporation, and its permitted successors and assigns.
"GE Capital Daily Yield" shall mean, with respect to the
Committed Purchaser who is GE Capital, for any day, the product of (a) the sum
of (i) GE Capital Daily Yield Rate for such day, plus (ii) the Daily Margin on
such day, plus, (iii) if a Termination Event has occurred and is continuing, the
Daily Default Margin, multiplied by (b) such Committed Purchaser's Capital
Investment outstanding on such day.
"GE Capital Daily Yield Rate" shall mean, for any day during a
Settlement Period, (a) the weighted average GE Capital Yield Rates applicable to
such Committed Purchaser's Capital Investment on such day, weighted by such
Committed Purchaser's outstanding Capital Investment, divided by (b) 360.
"GE Capital Funding Event" shall mean the occurrence of a Redwood
Termination Date, but only if both (i) no Termination Event has occurred and is
continuing, and (ii) the Committed Purchaser Expiry Date has not occurred.
"GE Capital Yield Rate" shall mean, with respect to any portion
of the Capital Investment of the Committed Purchaser who is GE Capital on any
day during a Settlement Period, (a) if the LIBOR market is closed, or if such
Committed Purchaser's Purchaser Agent determines that it is illegal for the
Committed Purchaser to make Purchases accruing interest at as a rate based upon
LIBOR, the sum of (i) the highest prime, base or equivalent lending rate of
interest announced or published on or most recently before such date by any of
the five largest member banks of the New York Clearing House Association, Inc.
(with the understanding that such rates may merely serve as a basis upon which
effective rates of interest are calculated for loans making reference to such
prime, base or equivalent rates and that such rates are not necessarily the
lowest or best rates at which such banks calculate interest or extend credit)
plus (ii) if a Termination Event has occurred and is continuing, the Daily
Default Margin, or (b) the sum of (i) LIBOR plus (ii) 0.50% plus (iii) the
applicable "Eurodollar Spread" as defined in the defined term "Applicable Rate"
in the Credit Facility from time to time, provided that if such
ABDC/Blue Hill II A&R Annex X
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Credit Facility is terminated, the term shall have the same meaning as such term
had in the Credit Facility immediately prior to termination.
"General Trial Balance" shall mean with respect to the Originator
and as of any date of determination, the Originator's accounts receivable trial
balance with respect to BH2 Designated Receivables (whether in the form of a
computer printout, magnetic tape or diskette) as of such date, listing Obligors
and the BH2 Designated Receivables owing by such Obligors as of such date
together with the aged Outstanding Balances of such Receivables, in form and
substance reasonably satisfactory to the Seller and the Administrative Agent.
"Governmental Authority" shall mean any nation or government, any
state or other political subdivision thereof, and any agency, department or
other entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Group Commitment" shall mean, with respect to any Purchaser
Group, the aggregate of all of the Commitments of the Committed Purchasers
within such Purchaser Group.
"Group Investment" shall mean, with respect to any Purchaser
Group, the aggregate of all of the Capital Investments of the Purchasers within
such Purchaser Group.
"Guaranteed Indebtedness" shall mean, as to any Person, any
obligation of such Person guaranteeing any indebtedness, lease, dividend, or
other obligation ("primary obligation") of any other Person (the "primary
obligor") in any manner, including any obligation or arrangement of such Person
to (a) purchase or repurchase any such primary obligation, (b) advance or supply
funds (i) for the purchase or payment of any such primary obligation or (ii) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency or any balance sheet condition of the
primary obligor, (c) purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation, or (d) indemnify
the owner of such primary obligation against loss in respect thereof. The amount
of any Guaranteed Indebtedness at any time shall be deemed to be the amount
equal to the lesser at such time of (x) the stated or determinable amount of the
primary obligation in respect of which such Guaranteed Indebtedness is incurred
and (y) the maximum amount for which such Person may be liable pursuant to the
terms of the instrument embodying such Guaranteed Indebtedness; or, if not
stated or determinable, the maximum reasonably anticipated liability (assuming
full performance) in respect thereof.
"Incipient Servicer Termination Event" shall mean any event that,
with the passage of time or notice or both, would, unless cured or waived,
become an Event of Servicer Termination.
"Incipient Termination Event" shall mean any event that, with the
passage of time or notice or both, would, unless cured or waived, become a
Termination Event.
"Indemnified Amounts" shall mean, with respect to any Person, any
and all suits, actions, proceedings, claims, damages, losses, liabilities and
reasonable expenses (including
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reasonable attorneys' fees and disbursements and other costs of investigation or
defense, including those incurred upon any appeal).
"Indemnified Person" shall have the meaning assigned to it in
Section 12.01 (a) of the Purchase Agreement.
"Indemnified Taxes" shall have the meaning assigned to it in
Section 2.08 (b) of the Purchase Agreement.
"Intercreditor Agreement" shall mean that certain Intercreditor
Agreement substantially in form and substance of the form of Intercreditor
Agreement attached as Exhibit C.
"Investment Base" shall mean, as of any date of determination,
the amount equal to the Outstanding Balance of Eligible Receivables minus the
Reserves with respect thereto, in each case as disclosed in the most recently
submitted Investment Base Certificate or as otherwise determined in good faith
by the Purchasers or the Administrative Agent based on reasonable estimates
derived from Seller Collateral information available to any of them, including
any information obtained from any audit or from any other reports with respect
to the Seller Collateral, which determination shall be final, binding and
conclusive on all parties to the Purchase Agreement (absent manifest error).
"Investment Base Certificate" shall have the meaning assigned to
it in Section 2.03(a) of the Purchase Agreement.
"Investment Company Act" shall mean the provisions of the
Investment Company Act of 1940, 15 U.S.C. (S)(S) 80a et seq., and any
regulations promulgated thereunder.
"Investment Reports" shall mean the reports with respect to the
Transferred Receivables and the Seller Collateral referred to in Annex 5.02(b)
to the Purchase Agreement.
"Investments" shall mean, with respect to any Seller Account
Collateral, the certificates, instruments, investment property or other
investments in which amounts constituting such collateral are invested from time
to time.
"IRS" shall mean the Internal Revenue Service.
"JPMorgan Chase" shall mean JPMorgan Chase Bank (f/k/a Xxxxxx
Guaranty Trust Company of New York).
"LAPA" shall mean that certain Liquidity Loan and Asset Purchase
Agreement dated as of December 20, 2000 among Redwood and GE Capital, in its
capacities as (a) the administrative agent for the Conduit Purchasers and the
Committed Purchasers, (b) the Collateral Agent and Operating Agent for Redwood,
(c) the initial Liquidity Lender, (d) the Liquidity Agent, and (e) a Committed
Purchaser, as amended, restated, supplemented or otherwise modified from time to
time.
ABDC/Blue Hill II A&R Annex X
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"Letter of Credit" shall mean that certain Irrevocable Letter of
Credit No. RRC-3 dated March 7, 2000, issued by the Letter of Credit Providers
at the request of Redwood in favor of the Collateral Agent pursuant to the
Letter of Credit Agreement.
"Letter of Credit Agent" shall mean GE Capital, in its capacity
as agent for the Letter of Credit Providers under the Letter of Credit
Agreement.
"Letter of Credit Agreement" shall mean that certain Third
Amended and Restated Letter of Credit Reimbursement Agreement dated as of March
7, 2000, among Redwood, the Letter of Credit Agent, the Letter of Credit
Providers and the Collateral Agent.
"Letter of Credit Providers" shall mean, initially, GE Capital,
in its capacity as issuer of the Letter of Credit under the Letter of Credit
Agreement, and thereafter its successors and permitted assigns in such capacity.
"LIBOR" shall mean, for each Settlement Period, (a) with respect
to the Purchaser Group in which Redwood and GE Capital are members, the Redwood
LIBOR, and (b) with respect to each other Purchaser Group, the rate set forth as
LIBOR in Schedule I of such Purchaser Group's Assignment Agreement or RPSA
Supplement Agreement, as the case may be.
"Lien" shall mean any mortgage or deed of trust, pledge,
hypothecation, assignment, deposit arrangement, lien, charge, claim, security
interest, easement or encumbrance, or preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including any lease or title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of, or agreement to give, any financing statement perfecting a security interest
under the UCC or comparable law of any jurisdiction).
"Liquidity Agent" shall mean (a) with respect to the Purchaser
Group in which Redwood and GE Capital are members, GE Capital, in its capacity
as agent for the Liquidity Lenders pursuant to the LAPA, and (b) with respect to
each other Purchaser Group, any Person acting as liquidity agent for the various
Liquidity Lenders under each Liquidity Agreement.
"Liquidity Agreement" shall mean (a) with respect to the
Purchaser Group in which Redwood and GE Capital are members, the LAPA, and (b)
with respect to each other Purchaser Group, any agreement entered into in
connection with the Purchase Agreement pursuant to which a Liquidity Lender
agrees to make advances to, or purchase assets from, any Conduit Purchaser in
order to provide liquidity for such Conduit Purchaser's Purchases under the
Purchase Agreement.
"Liquidity Lenders" shall mean (a) with respect to the Purchaser
Group in which Redwood and GE Capital are members, GE Capital and any other
provider of Liquidity Loans under the LAPA, and (b) with respect to each other
Purchaser Group, any Person providing liquidity support to any Conduit Purchaser
in respect of such Conduit Purchaser's Purchases under the Purchase Agreement.
"Liquidity Loans" shall mean (a) with respect to the Purchaser
Group in which Redwood and GE Capital are members, any and all borrowings of
Redwood under the LAPA,
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and (b) with respect to each other Purchaser Group, any and all borrowings by
any Conduit Purchaser under any Liquidity Agreement.
"Litigation" shall mean, with respect to any Person, any action,
claim, lawsuit, demand, investigation or proceeding pending or threatened
against such Person before any court, board, commission, agency or
instrumentality of any federal, state, local or foreign government or of any
agency or subdivision thereof or before any arbitrator or panel of arbitrators.
"Lockbox" shall have the meaning assigned to it in Section
6.01(a)(ii) of the Purchase Agreement.
"Lockbox Account" shall mean each lockbox account listed on
Schedule 4.01(q) to the Purchase Agreement established in the name of the Seller
held at a Lockbox Bank, as such Schedule 4.01(q) may be amended, supplemented
and otherwise modified from time to time to reflect a Distribution Center
Consolidation; and any other segregated deposit account established by the
Seller for the deposit of Collections with respect to the Transferred
Receivables pursuant to and in accordance with Section 6.01(a) of the Purchase
Agreement.
"Lockbox Account Agreement" shall mean each agreement (a)
substantially in the form of Exhibit B-1 to the Purchase Agreement or (b)
otherwise satisfactory in form and substance to the Administrative Agent,
pursuant to which a Lockbox Account is established and maintained at a Lockbox
Bank in accordance with Section 6.01(c) of the Purchase Agreement.
"Lockbox Account Bank" means each bank identified as a Lockbox
Bank on Schedule 4.01(q) and any other bank or financial institution at which
one or more Lockbox Accounts are maintained.
"Loss Reserve Ratio" shall mean, as of any date of determination,
the ratio (expressed as a percentage) calculated in accordance with the
following formula:
2 x ARR x DEFHOR
------ NRPB
where:
ARR = the highest Three Month Aged Receivables Ratio during
the 12 Settlement Periods immediately preceding such
date.
DEFHOR = the aggregate Billed Amount of Eligible Receivables
originated during the three Settlement Periods
immediately preceding such date
NRPB = the Outstanding Balance of Eligible Receivables as of
the last day of the first Settlement Period immediately
preceding such date.
Notwithstanding the foregoing, the Loss Reserve Ratio may be changed at any time
by the Administrative Agent, (a) in the Administrative Agent's reasonable credit
judgment, provided that so long as a Termination Event has not occurred nor is
continuing, the Administrative Agent
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may change the formulas for or methods of calculation of the Loss Reserve Ratio
only to the extent that such change together with any other Discretionary
Changes then in effect would not result in making Availability hereunder less
than the Minimum Availability Requirement, and (b) in the case of a decrease
only, upon consent of the Requisite Purchasers and satisfaction of the Rating
Agency Condition with respect thereto.
"Margin" shall mean, for any day, the product of (i) the Capital
Investment of Redwood and GE Capital and (ii) the sum of the Daily Margin plus
Daily Default Margin, if any, for such day.
"Material Adverse Effect" shall mean a material adverse effect on
(i) the collectibility of the Transferred Receivables, taken as a whole, (ii)
BHI's financial condition, business, operations or prospects or ability to
perform its obligations under any Related Document, (iii) the Servicer's
financial condition, business, operations or prospects or ability to perform its
obligations under any Related Document, (iv) the Originator's financial
condition, business, operations or prospects or ability to perform its
obligations under any Related Document, or (v) of the Bergen Entities, taken as
a whole, financial condition, business, operations or prospects or ability to
perform its obligations under any Related Document.
"Maturity Date" shall mean, with respect to any Receivable, the
due date for payment therefor specified in the Contract therefor, or, if no date
is so specified, 30 days from the Billing Date.
"Maximum Purchase Limit" shall mean $700,000,000, as such amount
may be reduced in accordance with Sections 2.02 or 2.13(b) of the Purchase
Agreement, and as such amount may be increased in connection with an RPSA
Supplement delivered after the Restatement Effective Date.
"Minimum Availability Requirement" shall mean the amount, as
calculated under the Existing Securitization Facility, equal to the lesser of
(i) $350,000,000 and (ii) the excess of (A) the "Eligible Receivables Balance"
less the amount by which the "Eligible Receivables Balance" exceeds the
"Concentration Limits" for all "Obligors" (each defined term as defined in the
Existing Securitization Facility) over (B) the "Aggregate Reserves" (as defined
in the Existing Securitization Facility), in each case, calculated in a manner
consistent with the methodology used immediately prior to the termination of the
Existing Securitization Facility as exemplified by the underlying calculations
reflected in Schedule 2 to this Annex X.
"Monthly Report" shall have the meaning assigned to it in
paragraph (a) of Annex 5.02(a) to the Purchase Agreement.
"Moody's" shall mean Xxxxx'x Investors Service, Inc. or any
successor thereto.
"NCS HealthCare" shall mean NCS HealthCare, Inc. and its
successors and assigns, including, without limitation, a debtor-in-possession,
trustee or receiver for NCS HealthCare, Inc.
"NCS HealthCare Receivables" shall mean Receivables for which NCS
HealthCare is an Obligor.
ABDC/Blue Hill II A&R Annex X
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"Net Worth Percentage" shall mean a fraction (expressed as a
percentage) (a) the numerator of which equals the excess of assets over
liabilities, in each case determined in accordance with GAAP consistently
applied and (b) the denominator of which equals the Outstanding Balance of
Transferred Receivables.
"No-Offset Agreement" shall mean an agreement between an Obligor
and the Administrative Agent pursuant to which such Obligor agrees not to offset
any claim it may have against Receivables owed by such Obligor to any Bergen
Entity, such agreement to be in form and substance satisfactory to the
Administrative Agent in its sole discretion and subject to satisfaction of the
Rating Agency Condition.
"Non-Renewing Committed Purchaser" shall have the meaning
assigned to it in Section 2.13(a) of the Purchase Agreement.
"Obligor" shall mean, with respect to any Receivable, the Person
primarily obligated to make payments in respect thereof.
"Officer's Certificate" shall mean, with respect to any Person, a
certificate signed by an Authorized Officer of such Person.
"Operating Agent" shall mean GE Capital, in its capacity as
operating agent for Redwood under the Administrative Services Agreement.
"Originator" shall mean AmerisourceBergen Drug as the seller of
BH2 Designated Receivables under the Sale and Contribution Agreement.
"Originator Collateral" shall have the meaning assigned to it in
Section 2.5 of the Sale and Contribution Agreement.
"Other Funding Agreements" shall mean any agreements entered into
from time to time by the Applicable Purchaser for the purchase or financing of
receivables.
"Outstanding Balance" shall mean, with respect to any Transferred
Receivable and as of any date of determination, the amount (which amount shall
not be less than zero) equal to (a) the Billed Amount thereof, minus (b) all
Collections received from the Obligor thereunder with respect to such
Transferred Receivable, minus (c) all discounts to or any other modifications
that reduce such Billed Amount; provided, that if after the occurrence or during
the continuation of a Termination Event the Administrative Agent or the Servicer
makes a determination that all payments by such Obligor with respect to such
Billed Amount have been made, the Outstanding Balance shall be zero.
"Parent" shall mean AmerisourceBergen Corporation, a Delaware
corporation
"Parent Group" shall mean the Parent and each of its Affiliates
other than BHI.
"PBGC" shall mean the Pension Benefit Guaranty Corporation.
"Pension Plan" shall mean a Plan described in Section 3(2) of
ERISA.
ABDC/Blue Hill II A&R Annex X
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"Per Annum Daily Margin" shall have the meaning assigned to it in
the Redwood Fee Letter.
"Permitted Debt" shall mean the indebtedness permitted under
Sections 6.01(a)(i)-(x) of the Credit Facility from time to time, provided that
if such Credit Facility is terminated, the reference to Section 6.01 shall refer
to the Credit Facility as in effect immediately prior to such termination;
provided, that if such Credit Facility has been replaced and (a) the Parent's
long-term unsecured unsubordinated indebtedness is rated equal to or higher than
BBB- by S&P and Baa3 by Moody's, "Permitted Debt" shall mean the indebtedness
permitted under such replacement Credit Facility, or (b) if the Parent's
long-term unsecured unsubordinated indebtedness is rated less than BBB- by S&P
(or such rating is withdrawn or suspended) or less than Baa3 by Moody's (or such
rating is withdrawn or suspended), and the indebtedness permitted under such
replacement credit facility is no less restrictive than the permitted
indebtedness in the Credit Facility immediately prior to termination, the term
shall have the same meaning as the permitted indebtedness under the replacement
Credit Facility.
"Permitted Investments" shall mean any of the following:
(a) obligations of, or guaranteed as to the full and timely
payment of principal and interest by, the United States of America or
obligations of any agency or instrumentality thereof if such obligations are
backed by the full faith and credit of the United States of America, in each
case with maturities of not more than 90 days from the date acquired;
(b) repurchase agreements on obligations of the type specified in
clause (a) of this definition; provided, that the short-term debt obligations of
the party agreeing to repurchase are rated at least A-1+ or the equivalent by
S&P and P-1 or the equivalent by Moody's;
(c) federal funds, certificates of deposit, time deposits and
bankers' acceptances of any depository institution or trust company incorporated
under the laws of the United States of America or any state, in each case with
original maturities of not more than 90 days or, in the case of bankers'
acceptances, original maturities of not more than 365 days; provided, that the
short-term obligations of such depository institution or trust company are rated
at least A-1+ or the equivalent by S&P and P-1 or the equivalent by Moody's;
(d) commercial paper of any corporation incorporated under the
laws of the United States of America or any state thereof with original
maturities of not more than 30 days that on the date of acquisition are rated at
least A-1+ or the equivalent by S&P and P-1 or the equivalent by Moody's;
(e) securities of money market funds rated at least Aam or the
equivalent by S&P and P-1 or the equivalent by Moody's; and
(f) such other investments with respect to which each Rating
Agency shall have confirmed in writing to the Lender and Collateral Agent that
such investments shall not result in a withdrawal or reduction of the then
current rating by such Rating Agency of the Commercial Paper.
ABDC/Blue Hill II A&R Annex X
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"Person" shall mean any individual, sole proprietorship,
partnership, joint venture, unincorporated organization, trust, association,
corporation (including a business trust), limited liability company,
institution, public benefit corporation, joint stock company, Governmental
Authority or any other entity of whatever nature.
"PharMerica" shall mean PharMerica, Inc., a Delaware corporation
and an indirect wholly-owned Subsidiary of the Parent.
"Plan" shall mean, at any time, an "employee benefit plan," as
defined in Section 3(3) of ERISA, that the Originator or ERISA Affiliate
maintains, contributes to or has an obligation to contribute to on behalf of
participants who are or were employed by the Originator or ERISA Affiliate.
"Power of Attorney" shall have the meaning assigned to it in
Section 10.03 of the Purchase Agreement.
"Predecessor Agreement" shall have the meaning assigned to it in
the recitals to the Purchase Agreement.
"Program Documents" shall mean (a) with respect to the Purchaser
Group in which Redwood and GE Capital are members, the Redwood Program
Documents, and (b) with respect to each other Purchaser Group, the Liquidity
Agreements and any other agreement entered into by any Program Support Provider
providing for the issuance of one or more letters of credit for the account of a
Conduit Purchaser, the issuance of one or more surety bonds for which such
Conduit Purchaser is obligated to reimburse the applicable Program Support
Provider for any drawings thereunder, the sale by such Conduit Purchaser to any
Program Support Provider of the Purchaser Interests allocable to it (or portions
thereof or participations therein) and/or the making of loans and/or other
extensions of credit to such Conduit Purchaser in connection with such Conduit
Purchaser's commercial paper program, together with any letter of credit, surety
bond, or other instrument issued thereunder.
"Program Support Provider" shall mean (a) with respect to the
Purchaser Group in which Redwood and GE Capital are members, the Liquidity
Agents, the Liquidity Lenders, the Operating Agent, the Letter of Credit
Provider, the Letter of Credit Agent, the Collateral Agent, the Depositary, and
each other Person with respect to Redwood described under clause (b) to this
definition, and (b) any Liquidity Lender or other Person now or hereafter
extending credit or having a commitment to extend credit to or for the account
of, or to make purchases from, a Conduit Purchaser or issuing a letter of
credit, surety bond, or other instrument to support any obligations arising
under or in connection with such Conduit Purchaser's commercial paper program.
"Pro Rata Share" shall mean, with respect to each Purchaser
Group, such Purchaser Group's Group Commitment divided by the aggregate
Commitments of all Purchaser Groups.
"Purchase" shall have the meaning assigned to it in Section 2.01
of the Purchase Agreement.
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"Purchase Agreement" shall mean that certain Receivables Purchase
and Servicing Agreement dated as of December 20, 2000, among the Seller, the
Conduit Purchaser, the Committed Purchaser, the Servicer, and the Administrative
Agent, as amended, and as amended and restated by the Amended and Restated
Agreement.
"Purchase Assignment" shall mean that certain Purchase Assignment
dated as of the Closing Date by and between the Seller and the Applicable
Purchaser in the form attached as Exhibit 2.04(a) to the Purchase Agreement.
"Purchase Date" shall mean each day on which a Purchase is made.
"Purchase Discount Rate" shall mean, as of any date of
determination, a rate equal to the lesser of (a) the Dynamic Purchase Discount
Rate and (b) the Purchase Discount Rate Cap.
"Purchase Discount Rate Cap" shall mean a rate equal to
eighty-five percent (85%).
"Purchase Excess" shall mean, as of any date of determination,
the extent to which the Aggregate Capital Investment exceeds the Availability,
in each case as disclosed in the most recently submitted Investment Base
Certificate or as otherwise determined in good faith by the Applicable
Purchasers or the Administrative Agent based on reasonable estimates derived
from Seller Collateral information available to any of them, including any
information obtained from any audit or from any other reports with respect to
the Seller Collateral, which determination shall be final, binding and
conclusive on all parties to the Purchase Agreement (absent manifest error).
"Purchase Price" shall have the meaning assigned to it in Section
2.3 of the Sale and Contribution Agreement.
"Purchaser Agent" shall mean 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 Purchase Agreement or on the
signature pages to any Assignment Agreement or any RPSA Supplement Agreement, as
the case may be, and each such Person's permitted successors and assigns.
"Purchaser Group" shall mean, for each Conduit Purchaser, such
Conduit Purchaser, its related Committed Purchaser and its Related Purchaser
Agent.
"Purchaser Group Commitment Fees" shall mean, for each Purchaser
Group, the fees set forth in such Purchaser Group's Purchaser Group Fee Letter,
including commitment fees or other similar fees but not including fees included
in the calculation of Daily Yield.
"Purchaser Group Commitment Fee Shortfall" shall mean, as of any
date of determination within a Settlement Period, the amount, if any, by which
the Accrued Purchaser Group Commitment Fees exceed the Retained Purchaser Group
Commitment Fees, in each case, as of such date.
ABDC/Blue Hill II A&R Annex X
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"Purchaser Group Fee Letter" shall mean (a) with respect to the
Purchaser Group in which Redwood and GE Capital are members, the Redwood Fee
Letter, and (b) with respect to each other Purchaser Group, those certain letter
agreements in respect of each Purchaser Group among the Seller, the Servicer and
the related Purchaser Agent whereby Seller agrees to pay to the Purchaser Agent
(on behalf of its Related Purchasers) the fees, including the Purchaser Group
Commitment Fees, in the amounts and on the dates set forth in each such letter,
in each case, as the same may be amended, restated, supplemented, or otherwise
modified from time to time.
"Purchaser Interest" shall mean the undivided percentage
ownership interest of the Purchasers in the Transferred Receivables which are
purchased under the Purchase Agreement. The Purchaser Interest of the Purchasers
shall be expressed as a fraction of the total Transferred Receivables computed
as follows:
PI = __C + DR___
IB x PDR
where:
PI = the Purchaser Interest at the time of determination;
C = the Aggregate Capital Investment at such time;
DR = the Discount Reserve;
IB = the Investment Base at such time; and
PDR = the Purchase Discount Rate at such time.
The Purchaser Interest shall be calculated (or deemed to be
calculated) on each Business Day from the Closing Date through the Facility
Termination Date; from and after the Facility Termination Date, the Purchaser
Interest of the Purchasers shall be the Purchaser Interest of such Purchaser as
calculated on the Business Day immediately preceding the Facility Termination
Date until the Termination Date, at which time the Purchaser Interest shall
equal zero.
"Purchaser Interest Reconveyance Agreement" shall mean a
purchaser interest reconveyance agreement in the form and substance attached as
Exhibit 2.04(d) to the Purchase Agreement.
"Purchasers" shall mean the Conduit Purchasers and the Committed
Purchasers.
"Rating Agency" shall mean Moody's or S&P.
"Rating Agency Condition" shall mean, with respect to any action,
that each Rating Agency has notified the Conduit Purchasers and the
Administrative Agent in writing that
ABDC/Blue Hill II A&R Annex X
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such action will not result in a reduction or withdrawal of the rating of any
outstanding Commercial Paper.
"Ratios" shall mean, collectively, the Default Ratio, the
Delinquency Ratio, the Dilution Ratio, the Dilution Reserve Ratio, the Three
Month Rolling Dilution Ratio, the Loss Reserve Ratio, the Receivables Collection
Turnover and the Three Month Aged Receivables Ratio.
"Reassigned Accounts" shall have the meaning set forth in Section
8.13(d)(ii) of the Sale and Contribution Agreement.
"Receivable" shall mean, with respect to any Obligor:
(a) indebtedness of such Obligor (whether constituting an
account, chattel paper, document, instrument or general intangible) arising from
the provision of merchandise, goods or services to such Obligor by the
Originator, including the right to payment of any interest or finance charges
and other obligations of such Obligor with respect thereto;
(b) all Liens and property subject thereto from time to time
securing or purporting to secure any such indebtedness of such Obligor;
(c) all guaranties, indemnities and warranties, insurance
policies, financing statements and other agreements or arrangements of whatever
character from time to time supporting or securing payment of any such
indebtedness;
(d) all Collections with respect to any of the foregoing;
(e) all Records with respect to any of the foregoing;
(f) all invoices, all billing statements and all rights in all
other Contracts with respect to any of the foregoing; and
(g) all proceeds (whether constituting accounts, chattel paper,
documents, instruments or general intangibles) with respect to the foregoing.
Notwithstanding the foregoing, the Receivables shall not include the obligations
of the Originator under the Contracts.
"Receivable Collection Turnover" shall mean, as of any date of
determination, the amount (expressed in days) equal to:
(a) a fraction, (i) the numerator of which is equal to the
average of the Outstanding Balances of Transferred Receivables on the first day
of the three Settlement Periods immediately preceding such date and (ii) the
denominator of which is equal to aggregate Collections received during such
three Settlement Periods with respect to all Transferred Receivables,
multiplied by
ABDC/Blue Hill II A&R Annex X
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(b) the number of days contained in such three Settlement
Periods;
provided, that the Outstanding Balances of, and the Collections with respect to,
all Transferred Receivables that are NCS HealthCare Receivables shall not be
included in the foregoing calculation.
"Receivables Assignment" shall have the meaning assigned in
Section 2.2 of the Sale and Contribution Agreement.
"Records" shall mean all documents (other than Contracts), books,
records and other information (including computer programs, tapes, disks, data
processing software and related property and rights) prepared and maintained by
the Originator, the Servicer, any Sub-Servicer or the Seller with respect to the
Transferred Receivables and the Obligors thereunder, the Originator Collateral
and the Seller Collateral.
"Redwood" shall mean Redwood Receivables Corporation, a Delaware
corporation.
"Redwood Daily Yield" shall mean, for any day, the product of (a)
the Redwood Daily Yield Rate for such day and (b) Redwood's Capital Investment
outstanding on such day.
"Redwood Daily Yield Rate" means, with respect to the Conduit
Purchaser who is Redwood, on any day, a floating per annum rate equal to the sum
of (a) the Daily Margin on such day, plus (b) if a Termination Event has
occurred and is continuing, the Daily Default Margin, plus (c)(i) to the extent
such Conduit Purchaser's Purchases hereunder are being funded by the sale of
Commercial Paper, (A) the per annum rate equivalent to the weighted average of
the rates paid or payable by such Conduit Purchaser from time to time as
interest on or otherwise (by means of interest rate xxxxxx or otherwise) in
respect of Commercial Paper that is allocated, in whole or in part, to fund or
maintain such Conduit Purchaser's Capital Investment during the relevant
Settlement Period, which rates shall reflect and give effect to Dealer fees,
commissions of placement agents and other issuance costs in respect of such
Commercial Paper, divided by (B) 360 days; provided, however, that (i) if any
component of such rate is a discount rate the rate used shall be the rate
resulting from converting such discount rate to an interest bearing equivalent
rate per annum and (ii) to the extent such Conduit Purchaser's Purchases
hereunder are not being financed by the sale of Commercial Paper, the daily rate
(in effect from time to time) to such Conduit Purchaser of borrowing such funds
under the LAPA as in effect on the date of this Agreement.
"Redwood Fee Letter" shall mean that certain amended and restated
letter agreement dated as of the Restatement Effective Date, between the Seller
and GE Capital in its capacities as Administrative Agent, Purchaser Agent and
Committed Purchaser.
"Redwood LIBOR" shall mean for any calendar quarter, the per
annum rate for deposits in Dollars for a period of 90 days which appears on
Telerate Page 3750 as of 11:00 a.m., London time, on the last Business Day of
the immediately preceding calendar quarter. If such rate does not appear on
Telerate Page 3750 on such day, the rate will be determined on the basis of the
rates at which deposits in United States dollars are offered by the reference
banks selected by the Operating Agent at approximately 11:00 a.m., London time,
on such day to prime banks
ABDC/Blue Hill II A&R Annex X
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in the London interbank market for a period of one month commencing on that day.
Redwood's Purchaser Agent will request the principal London office of each of
the reference banks to provide a quotation of its rate. If at least two such
quotations are provided, the rate for that day will be the arithmetic mean of
the quotations. If fewer than two quotations are provided as requested, the rate
for that day will be the arithmetic mean of the rates quoted by two or more
major banks in New York City, selected by Redwood's Purchaser Agent, in its sole
discretion at approximately 11:00 a.m., New York City time, on that day for
loans in United States dollars to leading European banks for a period of 90
days.
"Redwood Program Documents" shall mean the Letter of Credit
Agreement, the LAPA, the Collateral Agent Agreement, the Depositary Agreement,
the Commercial Paper, the Administrative Services Agreement, each Accession
Agreement and the Dealer Agreements.
"Redwood Secured Parties" shall mean the Collateral Agent, the
Operating Agent, the CP Holders, the Depositary, the Liquidity Agent, the
Liquidity Lenders, the Letter of Credit Agent and the Letter of Credit
Providers.
"Redwood Termination Date" shall mean the date elected by Redwood
or the Collateral Agent (which election shall be mandatory and immediate upon
the occurrence of an event set forth in clause (c) below), by notice to the
Seller and the Administrative Agent as the Redwood Termination Date; provided,
that on such date, one or more of the following events shall have occurred and
be continuing: (a) a Seller LOC Draw; (b) the obligations of the Liquidity
Lenders to make Liquidity Loans shall have terminated and such Liquidity Lenders
shall not have otherwise been replaced or the "Liquidity Termination Date" (as
defined in the LAPA) shall have occurred; (c) an event of default under the
Collateral Agent Agreement or any other Redwood Program Document shall have
occurred; (d) the short-term debt rating of a Liquidity Lender shall have been
downgraded by a Rating Agency and such Liquidity Lender shall not have been
replaced in accordance with the terms of the LAPA within 30 days thereafter; (e)
Redwood or the Collateral Agent shall have determined that the funding of
Transferred Receivables under the Purchase Agreement is impracticable for any
reason whatsoever, including as a result of (i) a drop in or withdrawal of any
of the ratings assigned to the Commercial Paper by any Rating Agency, (ii) the
imposition of Additional Amounts, (iii) restrictions on the amount of
Transferred Receivables Redwood may finance or (iv) the inability of Redwood to
issue Commercial Paper; (f) any change in accounting standards shall occur or
any pronouncement or release of any accounting or regulatory body (including
FASB, AICPA or the Securities and Exchange Commission) shall be issued, or any
other change in the interpretation of accounting standards shall occur, such
that all or any portion of the Conduit Purchaser's assets and liabilities are
deemed to be consolidated with the assets and liabilities of GE Capital or any
of its affiliates; (g) a Termination Event shall have occurred and be
continuing; (h) the outstanding loans to the Conduit Purchaser under the LAPA
equal or exceed the Conduit Purchaser's Capital Investment at such time and no
interest or other amounts are owed to the Conduit Purchaser under the Purchase
Agreement or the other Related Documents; or (i) the exercise of any other
Conduit Purchaser of its discretion not to make a Purchase under Section
2.01(a).
"Regulatory Change" shall mean any change after the Closing Date
in any federal, state or foreign law or regulation (including Regulation D of
the Federal Reserve Board)
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or the adoption or making after such date of any interpretation, directive or
request under any federal, state or foreign law or regulation (whether or not
having the force of law) by any Governmental Authority charged with the
interpretation or administration thereof that, in each case, is applicable to
any Affected Party.
"Reinvestment Purchase" shall have the meaning assigned to it in
Section 2.01(c) of the Purchase Agreement.
"Rejected Amount" shall have the meaning assigned to it in
Section 3.2 of the Sale and Contribution Agreement.
"Related Documents" shall mean the Sale and Contribution
Agreement, each Lockbox Account Agreement, each Deposit Account Agreement, each
Reconveyance Agreement, each Purchaser Interest Reconveyance Agreement, the
Purchase Agreement, the Intercreditor Agreement, each Receivables Assignment,
the Purchase Assignment, each Power of Attorney, each Chattel Paper Agreement,
each Assignment Agreement, each RPSA Supplement Agreement and all other
agreements, instruments, documents and certificates identified in the Schedule
of Documents and including all other pledges, powers of attorney, consents,
assignments, contracts, notices, and all other written matter whether
heretofore, now or hereafter executed by or on behalf of any of the Seller, the
Originator or the Servicer, or any employee of any such Person, and delivered in
connection with the Sale and Contribution Agreement, the Purchase Agreement or
the transactions contemplated thereby; provided, that the "Related Documents"
shall not include the Program Documents. Any reference in the Sale and
Contribution Agreement, the Purchase Agreement or any other Related Document to
a Related Document shall include all Appendices thereto, and all amendments,
restatements, supplements or other modifications thereto, and shall refer to
such Related Document as the same may be in effect at any and all times such
reference becomes operative.
"Related Purchasers" shall mean (a) with respect to any Purchaser
Agent, the Purchasers in such Purchaser Agent's Purchaser Group and (b) with
respect to any Purchaser, the Purchasers in such Purchaser's Purchaser Group.
"Renewable Committed Purchaser" shall have the meaning assigned
to it in Section 2.13(a) of the Purchase Agreement.
"Repayment Notice" shall have the meaning assigned to it in
Section 2.03(c) of the Purchase Agreement.
"Reportable Event" shall mean any of the events set forth in
Section 4043(b) of ERISA.
"Requisite Purchasers" shall mean, at any time, the Purchasers
whose Commitments aggregate two-thirds (2/3) or more of the aggregate
Commitments of all Committed Purchasers.
"Reserve Account" shall mean that certain segregated deposit
account established by the Administrative Agent in accordance with the
requirements set forth in Section 6.01(d) of the Purchase Agreement.
ABDC/Blue Hill II A&R Annex X
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"Reserve Account Deficiency" shall mean, as of any Settlement
Date after the Cash Management Date, the amount, if any, by which the amounts
necessary to make the payments required under Sections 6.05(a)(i), (ii), and
(iii) of the Purchase Agreement exceed the amounts on deposit in the Reserve
Account.
"Reserves" shall mean the aggregate Concentration Discount Amount
for all Obligors of Transferred Receivables, the Extended Term Reserve, the
Dated Balance Not Due Reserve, and such other reserves as the Administrative
Agent may establish from time to time in its reasonable credit judgment;
provided, that, so long as no Termination Event has occurred or is continuing,
the Administrative Agent may establish new reserves and change the formulas for
or methods of calculation of such new reserves only to the extent that such new
reserve or change, as applicable, together with any other Discretionary Changes
then in effect would not result in making Availability hereunder less than the
Minimum Availability Requirement.
"Restatement Effective Date" shall have the meaning assigned to
it in Section 3.01 of the Purchase Agreement.
"Retained Monthly Yield" shall mean, as of any date of
determination within a Settlement Period, the sum of all amounts transferred to
or retained in the Reserve Account with respect to Daily Yield from and
including the first day of such Settlement Period through and including such
date pursuant to Section 6.05(a)(ii) of the Purchase Agreement.
"Retained Purchaser Group Commitment Fees" shall mean, as of any
date of determination within a Settlement Period, the sum of all amounts
transferred to or retained in the Reserve Account with respect to the Purchaser
Group Commitment Fees from and including the first day of such Settlement Period
through and including such date in accordance with Sections 6.04(b)(i)(E) or
6.05(a)(iv) of the Purchase Agreement.
"Retained Servicing Fee" shall mean, as of any date of
determination within a Settlement Period, the sum of all amounts transferred to
or retained in the Reserve Account with respect to the Servicing Fee from and
including the first day of such Settlement Period through and including such
date pursuant to Sections 6.04(b)(i)(C) or 6.05(a)(iv) of the Purchase
Agreement.
"Retiree Welfare Plan" shall mean, at any time, a Welfare Plan
that provides for continuing coverage or benefits for any participant or any
beneficiary of a participant after such participant's termination of employment,
other than continuation coverage provided pursuant to Section 4980B of the IRC
and at the sole expense of the participant or the beneficiary of the
participant.
"Revolving Period" shall mean the period from and including the
Closing Date through and including the day immediately preceding the Facility
Termination Date.
"RPSA Supplement Agreement" shall mean (a) with respect to the
Purchaser Group in which The Bank of Nova Scotia and Liberty Street Funding
Corp. are members, that certain RPSA Supplement Agreement dated as of the
Restatement Effective Date, among the Seller, The Bank of Nova Scotia and
Liberty Street Funding Corp. and acknowledged by the Administrative Agent, and
(b) with respect to each other Purchaser Group that enters into an
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RPSA Supplement Agreement, an agreement substantially in the form set forth in
Exhibit 14.02(b) to the Purchase Agreement.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor thereto.
"Sale" shall mean, with respect to a sale of BH2 Designated
Receivables under the Sale and Contribution Agreement, a sale of BH2 Designated
Receivables by the Originator to the Buyer in accordance with the terms of the
Sale and Contribution Agreement.
"Sale and Contribution Agreement" shall mean that certain Sale
and Contribution Agreement dated as of December 20, 2000, as amended by the
First Amendment to Sale and Contribution Agreement dated as of October 1, 2002,
as amended by the Second Amendment to Sale and Contribution Agreement dated as
of December 2, 2002, and as amended by the Third Amendment to Sale and
Contribution Agreement dated as of the Restated Effective Date, among the
Originator, the Servicer and BHI as Buyer.
"Schedule of Documents" shall mean the schedule, including all
appendices, exhibits or schedules thereto, listing certain documents and
information to be delivered in connection with the Sale and Contribution
Agreement, the Purchase Agreement and the other Related Documents and the
transactions contemplated thereunder, substantially in the form attached as
Annex Y to the Purchase Agreement and the Sale and Contribution Agreement.
"Securities Act" shall mean the provisions of the Securities Act
of 1933, 15 U.S.C. Sections 77a et seq., and any regulations promulgated
thereunder.
"Securities Exchange Act" shall mean the provisions of the
Securities Exchange Act of 1934, 15 U.S.C. Sections 78a et seq., and any
regulations promulgated thereunder.
"Seller" shall mean BHI, in its capacity as the seller under the
Purchase Agreement.
"Seller Account" shall mean a deposit account maintained in the
name of the Seller at a commercial bank in the United States of America, as
designated by the Seller from time to time.
"Seller Account Collateral" shall have the meaning assigned to it
in Section 8.01(c) of the Purchase Agreement.
"Seller Assigned Agreements" shall have the meaning assigned to
it in Section 8.01(b) of the Purchase Agreement.
"Seller Collateral" shall have the meaning assigned to it in
Section 8.01 of the Purchase Agreement.
"Seller LOC Draws" shall mean any payments made to the Purchaser
in connection with the Letter of Credit and allocated to the Seller.
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"Seller Secured Obligations" shall mean all loans, advances,
debts, liabilities, indemnities and obligations for the performance of
covenants, tasks or duties or for payment of monetary amounts (whether or not
such performance is then required or contingent, or such amounts are liquidated
or determinable) owing by the Seller to any Affected Party under the Purchase
Agreement and any Related Document, and all covenants and duties regarding such
amounts, of any kind or nature, present or future, whether or not evidenced by
any note, agreement or other instrument, arising thereunder, including Aggregate
Capital Investment, Daily Yield, Yield Shortfall, Purchaser Group Commitment
Fees, Purchaser Group Commitment Fee Shortfall, Margin, amounts in reduction of
Purchase Excess, Successor Servicing Fees and Expenses, Additional Amounts and
Indemnified Amounts. This term includes all principal, interest (including all
interest that accrues after the commencement of any case or proceeding by or
against the Seller in bankruptcy, whether or not allowed in such case or
proceeding), fees, charges, expenses, attorneys' fees and any other sum
chargeable to the Seller thereunder, whether now existing or hereafter arising,
voluntary or involuntary, whether or not jointly owed with others, direct or
indirect, absolute or contingent, liquidated or unliquidated, and whether or not
from time to time decreased or extinguished and later increased, created or
incurred, and all or any portion of such obligations that are paid to the extent
all or any portion of such payment is avoided or recovered directly or
indirectly from any Purchaser or the Administrative Agent or any transferee of
the Purchasers, any Purchaser Agent or the Administrative Agent as a preference,
fraudulent transfer or otherwise.
"Seller's Share" shall mean the ratio of (a) the Maximum Purchase
Limit under the Purchase Agreement to (b) the aggregate maximum purchase limits
or commitments under the Purchase Agreement and all Other Funding Agreements.
"Servicer" shall mean AmerisourceBergen Drug, in its capacity as
the Servicer under the Purchase Agreement, or any other Person designated as a
Successor Servicer pursuant to the Purchase Agreement.
"Servicer's Certificate" shall mean an Officer's Certificate
substantially in the form of Exhibit 3.01(a)(iii) to the Purchase Agreement.
"Servicer Termination Notice" shall mean any notice by the
Administrative Agent to the Servicer that (a) an Event of Servicer Termination
has occurred and (b) the Servicer's appointment under the Purchase Agreement has
been terminated.
"Servicing Fee" shall mean, for any day within a Settlement
Period, the amount equal to (a) (i) the Servicing Fee Rate divided by (ii) 360,
multiplied by (b) the Aggregate Capital Investment on such day.
"Servicing Fee Rate" shall mean 1.00%.
"Servicing Fee Shortfall" shall mean, as of any date of
determination within a Settlement Period, the amount, if any, by which the
Accrued Servicing Fee exceeds the Retained Servicing Fee, in each case as of
such date.
"Servicing Officer" shall mean any officer of the Servicer
involved in, or responsible for, the administration and servicing of the
Transferred Receivables and whose name
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appears on any Officer's Certificate listing servicing officers furnished to the
Administrative Agent by the Servicer, as such certificate may be amended from
time to time.
"Servicing Records" shall mean all documents, books, Records and
other information (including computer programs, tapes, disks, data processing
software and related property and rights) prepared and maintained by the
Servicer with respect to the Transferred Receivables and the Obligors
thereunder.
"Settlement Date" shall mean the fifth Business Day following the
end of each Settlement Period.
"Settlement Period" shall mean:
(a) solely for purposes of determining the Ratios, (i) with
respect to all Settlement Periods other than the final Settlement
Period, each calendar month, whether occurring before or after the
Closing Date, and (ii) with respect to the final Settlement Period,
the period ending on the Termination Date and beginning with the first
day of the calendar month in which the Termination Date occurs, and
(b) for all other purposes, (i) with respect to the initial
Settlement Period, the period from and including the Closing Date
through and including the last day of the calendar month in which the
Closing Date occurs, (ii) with respect to the final Settlement Period,
the period ending on the Termination Date and beginning with the first
day of the calendar month in which the Termination Date occurs, and
(iii) with respect to all other Settlement Periods, each calendar
month; provided, however, that upon the occurrence of the GE Capital
Funding Event, such Settlement Period shall terminate on the day prior
to the GE Capital Funding Event, and the next Settlement Period shall
be the period from and including the day of the GE Capital Funding
Event through and including the last day of the calendar month in
which the GE Capital Funding Event occurs.
"Significant Subsidiary" means each Subsidiary of the Parent
defined as a "Significant Subsidiary" under the Credit Facility on the date
hereof and set forth in Schedule 4.01(a) to the Purchase Agreement, as updated
quarterly in accordance with Annex 5.02(a) of the Purchase Agreement from time
to time thereafter.
"Sold Receivable" shall have the meaning assigned to it in
Section 2.2 of the Sale and Contribution Agreement.
"Solvency Certificate" shall mean an Officer's Certificate
substantially in the form of Exhibit 3.01(a)(i) to the Purchase Agreement.
"Solvent" shall mean, with respect to any Person on a particular
date, that on such date (a) the fair value of the property of such Person is
greater than the total amount of liabilities, including contingent liabilities,
of such Person; (b) the present fair salable value of the assets of such Person
is not less than the amount that will be required to pay the probable liability
of such Person on its Debts as they become absolute and matured; (c) such Person
does not intend to, and does not believe that it will, incur Debts or
liabilities beyond such Person's ability to pay as such Debts and liabilities
mature; and (d) such Person is not engaged in a business or transaction, and
ABDC/Blue Hill II A&R Annex X
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is not about to engage in a business or transaction, for which such Person's
property would constitute an unreasonably small capital. The amount of
contingent liabilities (such as Litigation, guaranties and pension plan
liabilities) at any time shall be computed as the amount that, in light of all
the facts and circumstances existing at the time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"Special Limit" means, (i) for National Rx, Inc. ("National Rx"),
a wholly owned subsidiary of Merck-Medco Managed Care, Inc., a wholly owned
subsidiary of Merck & Co., Inc. ("Merck"), 15.0% of the Outstanding Balance of
Eligible Receivables; provided, however, that such Special Limit shall be
automatically deemed revoked (A) at the time, if any, when Merck ceases to have
a short-term unsecured senior debt rating of higher than "A-2" from S&P and a
short-term unsecured senior debt rating of higher than "P-2" from Xxxxx'x or (B)
National Rx shall cease at any time to be, directly or indirectly, a wholly
owned subsidiary of Merck; (ii) for Longs Drug Stores Corporation ("Longs"),
12.5% of the Outstanding Balance of Eligible Receivables; provided, however,
that such Special Limit shall be automatically deemed revoked at the time, if
any, when the sum of Defaulted Receivables to Longs exceeds 50% of the total
outstanding balance of Receivables to Longs, unless in the case of either (i) or
(ii), the Administrative Agent notifies the Seller of a different limit and if
such different limit represents an increase, each Rating Agency has approved
such increased limit; (iii) for Walgreen Company, 12.0% of the Outstanding
Balance of Eligible Receivables; provided, however, that such Special Limit
shall be deemed automatically revoked at any time, if any, when Walgreen Company
ceases to have a short-term unsecured senior debt rating of higher than "A-2"
from S&P and a short-term unsecured senior debt rating of higher than "P-2" from
Xxxxx'x; and (iv) such other "Special Limits" as shall be agreed to in writing
by the Administrative Agent (with the consent of the Requisite Purchasers) for
other Obligors from time to time and approved by the required Rating Agencies.
"Stock" shall mean all shares, options, warrants, general or
limited partnership interests or other equivalents (regardless of how
designated) of or in a corporation, partnership or equivalent entity whether
voting or nonvoting, including common stock, preferred stock or any other
"equity security" (as such term is defined in Rule 3a11-1 of the General Rules
and Regulations promulgated by the Securities and Exchange Commission under the
Securities Exchange Act).
"Stockholder" shall mean, with respect to any Person, each holder
of Stock of such Person.
"Subordinated Note" shall mean that certain Subordinated Note
executed and delivered by Buyer to the order of Originator dated as of December
20, 2000, substantially in the form attached as Exhibit B to the Sale and
Contribution Agreement.
"Sub-Servicer" shall mean any Person with whom the Servicer
enters into a Sub-Servicing Agreement.
"Sub-Servicing Agreement" shall mean any written contract entered
into between the Servicer and any Sub-Servicer pursuant to and in accordance
with Section 7.01 of the
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Purchase Agreement relating to the servicing, administration or collection of
the Transferred Receivables.
"Subsidiary" shall mean, with respect to any Person, any
corporation or other entity (a) of which securities or other ownership interests
having ordinary voting power to elect a majority of the board of directors or
other Persons performing similar functions are at the time directly or
indirectly owned by such Person or (b) that is directly or indirectly controlled
by such Person within the meaning of control under Section 15 of the Securities
Act.
"Successor Servicer" shall have the meaning assigned to it in
Section 11.02 of the Purchase Agreement, or, following the Termination Date,
Section 3.1(e) of the Sale and Contribution Agreement.
"Successor Servicing Fees and Expenses" shall mean the fees and
expenses payable to the Successor Servicer as agreed to by the Seller, the
Purchasers, and the Administrative Agent.
"Taxes" means all taxes, charges, fees, levies or other
assessments (including income, gross receipts, profits, withholding, excise,
property, sales, use, license, occupation and franchise taxes and including any
related interest, penalties or other additions) imposed by any jurisdiction or
taxing authority (whether foreign or domestic).
"Termination Date" shall mean the date on which (a) Aggregate
Capital Investment has been permanently reduced to zero, (b) all other Seller
Secured Obligations under the Purchase Agreement and the other Related Documents
have been indefeasibly repaid in full and completely discharged and (c) the
Maximum Purchase Limit has been irrevocably terminated in accordance with the
provisions of Section 2.02(c) of the Purchase Agreement.
"Termination Event" shall have the meaning assigned to it in
Section 9.01 of the Purchase Agreement.
"Third Amendment Effective Date" shall mean the Effective Date
under (and as defined in) the Third Amendment to Receivables Purchase and
Servicing Agreement and Annex X dated as of October 1, 2002, among Blue Hill,
the Servicer, the Purchasers and the Administrative Agent.
"Third Amendment Intercreditor Agreement" shall mean that certain
Third Amendment Intercreditor Agreement dated as of the Third Amendment
Effective Date, between JPMorgan Chase, as "Administrative Agent" under the
ARFC/JPMorgan Purchase Agreement, and GE Capital, as Administrative Agent under
this Agreement, as amended, supplemented or otherwise modified from time to
time.
"Three Month Aged Receivables Ratio" shall mean, as of any date
of determination, the ratio (expressed as a percentage) of:
(a) the sum of the respective Outstanding Balances (without
reduction for credit balances) of Transferred Receivables with respect to which
any payment, or part thereof,
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remained unpaid for more than 60 but less than 91 days past their respective
Maturity Dates as of the last day of the three Settlement Periods immediately
preceding such date
to
(b) the aggregate Billed Amount of Transferred Receivables
originated during the fourth, fifth, and sixth Settlement Periods immediately
preceding such date;
provided, that, the Outstanding Balance and Billed Amount of all Transferred
Receivables constituting NCS HealthCare Receivables shall be excluded from the
foregoing calculation.
"Three Month Rolling Dilution Ratio" shall mean, as of any date
of determination, the ratio (expressed as a percentage) of:
(a) the aggregate Dilution Factors during the three Settlement
Periods immediately preceding such date
to
(b) the aggregate Billed Amount of all Transferred Receivables
originated during the three Settlement Periods immediately preceding such date;
provided, that, Dilution Factors relating to, and the Billed Amount of, all
Transferred Receivables constituting NCS HealthCare Receivables shall be
excluded from the foregoing calculation.
"Transfer Date" shall mean the date on which Receivables owned by
the Originator were sold or contributed to the Buyer in accordance with the
Section 2.2 of the Sale and Contribution Agreement.
"Transferred Receivable" shall mean any Sold Receivable or
Contributed Receivable; provided, that any Receivable repurchased by the
Originator pursuant to Section 3.2 of the Sale and Contribution Agreement shall
not be deemed to be a Transferred Receivable from and after the date of such
repurchase unless such Receivable has subsequently been repurchased by or
recontributed to the Buyer; provided further, that any BH2 Designated
Receivables that is repurchased pursuant to a Distribution Center Consolidation
shall not be deemed to be a Transferred Receivable from and after the date of
such repurchase.
"UCC" shall mean, with respect to any jurisdiction, the Uniform
Commercial Code as the same may, from time to time, be enacted and in effect in
such jurisdiction.
"Unapproved Receivable" shall mean any BH2 Designated Receivable
(a) with respect to which the obligor thereunder is not an Obligor on any BH2
Designated Receivable and whose customer relationship with the Originator arises
as a result of the acquisition by such Originator of another Person or (b) that
was originated in accordance with standards established by another Person
acquired by the Originator, in each case, solely with respect to any such
acquisitions that have not been approved in writing by the Administrative Agent
and then only for the period prior to any such approval; provided, however, that
any ARFC Designated
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Receivable that becomes a BH2 Designated Receivable in connection with a
Distribution Center Consolidation shall not be deemed an Unapproved Receivable.
"Yield Shortfall" shall mean, as of any date of determination
within a Settlement Period, the amount, if any, by which the Accrued Monthly
Yield exceeds the Retained Monthly Yield, in each case as of such date.
Section 2. Other Terms and Rules of Construction.
(a) Accounting Terms. Rules of construction with respect to
accounting terms used in any Related Document shall be as set forth in Annex G
to the Purchase Agreement. Unless otherwise specifically provided therein, any
accounting term used in any Related Document shall have the meaning customarily
given such term in accordance with GAAP, and all financial computations
thereunder shall be computed in accordance with GAAP consistently applied. That
certain items or computations are explicitly modified by the phrase "in
accordance with GAAP" shall in no way be construed to limit the foregoing.
(b) Other Terms. All other undefined terms contained in any of
the Related Documents shall, unless the context indicates otherwise, have the
meanings provided for by the UCC as in effect in the State of New York to the
extent the same are used or defined therein.
(c) Rules of Construction. Unless otherwise specified, references
in any Related Document or any of the Appendices thereto to a Section,
subsection or clause refer to such Section, subsection or clause as contained in
such Related Document. The words "herein," "hereof" and "hereunder" and other
words of similar import used in any Related Document refer to such Related
Document as a whole, including all annexes, exhibits and schedules, as the same
may from time to time be amended, restated, modified or supplemented, and not to
any particular section, subsection or clause contained in such Related Document
or any such annex, exhibit or schedule. Any reference to or definition of any
document, instrument or agreement shall unless expressly otherwise noted include
the same as amended, restated, supplemented or otherwise modified from time to
time. Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and the plural, and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, feminine and neuter genders. The words "including," "includes" and
"include" shall be deemed to be followed by the words "without limitation"; the
word "or" is not exclusive; references to Persons include their respective
successors and assigns (to the extent and only to the extent permitted by the
Related Documents) or, in the case of Governmental Authorities, Persons
succeeding to the relevant functions of such Persons; and all references to
statutes and related regulations shall include any amendments of the same and
any successor statutes and regulations.
(d) Rules of Construction for Determination of Ratios. The Ratios
as of the last day of the Settlement Period immediately preceding the Closing
Date shall be established by the Administrative Agent on or prior to the Closing
Date and the underlying calculations for periods immediately preceding the
Closing Date to be used in future calculations of the Ratios shall be
established by the Administrative Agent on or prior to the Closing Date in
accordance with Schedule 1 attached to this Annex X. For purposes of calculating
the Ratios, (i) averages shall be computed by rounding to the third decimal
place and (ii) the Settlement Period in which
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the date of determination thereof occurs shall not be included in the
computation thereof and the first Settlement Period immediately preceding such
date of determination shall be deemed to be the Settlement Period immediately
preceding the Settlement Period in which such date of determination occurs.
ABDC/Blue Hill II A&R Annex X
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